Freedom of Religion or Freedom from Religion

Posted on Categories Religion & Law

The First Amendment to the United States Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” These two clauses, the Establishment Clause and the Free Exercise Clause, respectively, are viewed by most as a reaction to both the establishment of the Church of England as that nation’s official religion and centuries of religious persecution throughout Europe. In fact, many of the original settlers came to America to avoid religious persecution. They simply wanted to be free to practice their own religion.

The Establishment Clause has been a hot topic, especially in the last half-century. Professor Esenberg has written about the ambitious nature of Establishment Clause jurisprudence. I agree: it is very difficult to achieve the apparent goal of religious neutrality. Instead, we should look to the meaning behind religious displays (or a National Day of Prayer) that are religious in nature rather than simply look at the fact that they are symbols of a certain religion.

The meaning of religious displays should be the important factor rather than the fact that they are religious in nature.

For example there are several cases, such as Glassroth v. Moore, Van Orden v. Perry, and McCreary County v. ACLU of Kentucky, that deal with the public display of the Ten Commandments. On their face, these displays are clearly religious in nature and are on state property. No argument there. In Van Orden, a 5-4 Court held that the display was legal because of the monument’s secular purpose. However, in McCreary County, the Court found the display illegal (5-4) because it was not clearly integrated with a secular display. This seems to be where courts draw the line.

Now let’s look at the meaning of the displays. The Ten Commandments include such ideas as loving your father and mother, refraining from murder or theft, and not bearing false witness against your neighbor. It would be hard to imagine a person who is offended by these ideas regardless of religion. [Full disclosure: I am Catholic.] Sure, there are references to God and worship of God, and some will argue that the state is trying to establish a religion. However, if there was a Buddhist display promoting love and decrying evil, while still being pro-Buddhist, I would not be offended and cannot see why anyone else would. It in no way impedes the practice of my religion of choice. It is hardly the government “endorsing” Buddhism. Rather, the display simply shows values that nearly everyone finds good and desirable.

Historically, the Establishment Clause was established to help ensure that the citizens of the United States are free to practice whatever religion they want without the government favoring the practice of one religion over another. These displays hardly demonstrate the government’s stance on a preferred religion. They simply show ideals that are viewed positively by society as a whole. Some may say that this is just the first step leading to a “slippery slope.” I disagree. So long as everyone is free to practice the religion of their choice, who can be truly harmed by the display of positive values?

5 thoughts on “Freedom of Religion or Freedom from Religion”

  1. “The Ten Commandments include such ideas as loving your father and mother, refraining from murder or theft, and not bearing false witness against your neighbor. It would be hard to imagine a person who is offended by these ideas regardless of religion.”

    It also starts (depending on which version is used) with “Thou shalt have no other gods before me.” In other words, worship THIS god and none of the others.

    It would be hard to imagine a person who is NOT offended by the government telling everyone which god to worship, regardless of religion.

  2. “It is hardly the government ‘endorsing’ Buddhism.”

    And that much less the government “establishing” Buddhism.

    I disagree that “the Establishment Clause was established to help ensure that the citizens of the United States are free to practice whatever religion they want without the government favoring the practice of one religion over another,” however. At the founding, some States had established religions, with belief therein being a requirement to vote, serve in public office, etc., as well as mandatory tithing. Those disappeared eventually, but not by means of the Establishment Clause, which seems to me to have been intended more as an anti-federalist provision than the creation of a right to be free from any government favoring of religion.

  3. “It would be hard to imagine a person who is offended by these ideas regardless of religion”

    Well, I think Brian’s point about the emphasis of the monotheistic faith has some merit here, because I CAN see some people who practice polytheistic faiths being offended at what they perceive as a tacit support by government institutions of monotheistic religion. It’s essentially the same argument as those who get pissed when a sitting President starts doing photo-ops with candidates seeking office; you don’t have to say anything to send a message loud and clear.

    However, I think the bigger issue — at least as I see it — for having things like the Ten Commandments in courthouses comes in the analogy you drew to a Buddhist display. Be honest for a moment: in thinking about the kinds of places you see the Ten Commandments or Christmas trees or any of the other symbols people tend to reference in these court cases, how many of those kinds of places have you seen a Buddhist/Taoist/Hindi/other non-Judeo-Christian display? Because, to be fair, I don’t know that I myself have ever seen one. And, I mean, I wouldn’t care if they did put those there, but the point is that no one would think about it if they weren’t forced to out of fear of a lawsuit.

    I’m not saying it’s evil to have Judeo-Christian items in public places. But as I noted about a year ago in this post (http://law.marquette.edu/facultyblog/2008/11/30/when-the-gods-wish-to-punish-us-they-answer-our-prayers/), people weren’t too crazy about a Hindi priest doing the opening prayer in the U.S. Senate, whereas they had no objection to a Jesuit priest doing it. If we can’t let one in, we probably shouldn’t let the other in either.

  4. The Establishment Clause was obviously intended to keep the federal government out of the states’ business — not to keep religion out of government, but to keep government out of religion.

    The right of conscience and the free exercise thereof guarantees that not only do citizens have the right to vote their conscience, but that their vote will be counted as equal to all the other votes cast regardless of race, religion, or gender.

    A few quotes:

    “God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?” Thomas Jefferson

    “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams

    “It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians not on religions, but on the gospel of Jesus Christ! For this very reason, peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.” Patrick Henry

    “This will be the best security for maintaining our liberties. A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the religion of ignorance that tyranny begins. Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature.” Benjamin Franklin

    “We have our freedom because of our faith; we do not have our faith because of our freedom.” George W. Bush

    There were no Buddhists, Islamists, atheists, or the like among the signers of the Declaration of Independence or the U.S. Constitution, only Christians, but now we are told by appointed attorneys that we are suppose to act as if there were.

    1. No, you’re supposed to act as if Buddhists, Islamists, atheists, or the like have the same religious rights as you do — because they do.

Join the Conversation

We reserve the right not to publish comments based on such concerns as redundancy, incivility, untimeliness, poor writing, etc. All comments must include the first and last name of the author in the NAME field and a valid e-mail address.

This site uses Akismet to reduce spam. Learn how your comment data is processed.