The Meaning of the First Amendment

The LORD hath prepared his throne in the heavens; and his kingdom ruleth over all, Psalm 103:19. What does it all mean?

The Meaning of the First Amendment

Postby Paul » Wed Feb 17, 2010 2:35 am

What does the language of the First Amendment mean?

Should the Amendment be construed as arising from and expressing one general idea?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Or does the Amendment actually set out six different regulations, each to be interpreted independently? Then, should it actually have been written as follows?
1. Congress shall make no law respecting the establishment of religion.
2. Congress shall make no law prohibiting the free exercise of religion.
3. Congress shall make no law abridging the freedom of speech.
4. Congress shall make no law abridging the freedom of the press.
5. Congress shall make no law abridging the right of the people peaceably to assemble.
6. Congress shall make no law abridging the right of the people to petition the government for a redress of grievance.

Currently prevailing American Supreme Court decisions indicate that only the establishment and free exercise clauses determine our rights on religious liberty, and it interprets these separately, allegedly based on the original intent of their meaning as determined by relevant historical circumstances. However, is it correct to uphold these clauses as distinct in purpose and without regard to the overall context of the Amendment? And has the Court, indeed, honestly and fairly outlined the true historical basis which demonstrates the originally intended meaning of the First Amendment in respect to the freedom of religion?

These questions are complex and require reviewing a multitude of decisions made by the Court. However, if mistakes have been made, or if the law actually has been deliberately altered from the Amendment's true meaning, then there must be a way for average citizens to understand what is involved and what has gone on. In this thread, from time to time, I will post on particular cases dealing with key issues, in an attempt to clarify how the Amendment should be understood historically, and how the Court has given it a particular meaning. By breaking the principles down to shorter units of thought, I hope to bring clarity to all the issues in what normally must be undertaken as a prolonged process of examination.

Your comments on the thoughts expressed and evaluations of relevant issues are welcomed. (However, please do so by beginning a new topic in this section, to preserve the train of thought in the presentation as uninterrupted).

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The Free Exercise Clause

Postby Paul » Tue Feb 23, 2010 3:41 am

Cases reviewed in this thread may easily be found on line.

In holding that the protection of the free exercise of religion in the First Amendment is a separate clause, how does the court interpret its meaning?

There are two key principles which the Court has reviewed in its decisions - 1) The Secular Intent Rule; 2) The Compelling State Interest Rule.

The Secular Intent Rule

Reynolds v. United States, 1879
This case considers whether the Free Exercise Clause protects Mormons in the practice of polygamy contrary to state statute making such an act a crime. The Court held that the government may not interfere with beliefs and opinions, but it may do so with actions. As long as the government has a valid secular purpose and legal authority to make a regulation, the interference in the free exercise of religion is not a basis to avoid compliance. To hold otherwise makes religious beliefs superior to the law and permits every everyone to be a law unto oneself. The regulation must have a secular purpose applying indiscriminately to all, regardless of religious beliefs.

The Compelling State Interest Rule

Sherbert v. Verner, 1963/ Wisconsin v. Yoder, 1972
This rule holds that the government only may override the protection of the Free Exercise Clause in compelling actions in violation of religious beliefs when there is a state interest of sufficient magnitude, i.e. a compelling state interest, that of the highest order, and as the least restrictive means of achieving the result. The conduct regulated must invariably pose a substantial threat to public safety, peace, or order. Those seeking relief under this rule must demonstrate their religious beliefs are genuine and a substantial burden has been imposed on their actual religious practices.

In Sherbert, it was held as a violation of the Free Exercise Clause, to deny unemployment compensation to a worker who quit her job after her schedule was changed to include Saturdays, which is considered the Sabbath in the Seventh-day Adventist Church. Yoder held the state could not compel children of the Old Order Amish communities to attend public school beyond the eighth grade.

However, it is questionable whether the Court has applied the rule consistently. For example -- In United States v. Lee, 1982, the Court held that Old Order Amish were not protected by the Free Exercise Clause in refusing to pay social security taxes. In Goldman v. Weinberger, 1986, the Court held that the Air Force could prohibit an Orthodox Jew from wearing a Yamulke while on duty.

Sherbert also notes that the government cannot discriminate against individuals or groups because of their views. "If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect."

Abandoning the Compelling State Interest Rule

Lyng v. Northwest Indian Cementery Protective Association, 1988
At issue was whether a proposal for timber harvesting on and construction of a road through a part of a national forest traditionally used for religious purposes by three American Indian tribes was prohibited by the Free Exercise Clause. The Court acknowledged that the beliefs of the Indians were sincere and the government plan would have severe adverse effects on the practice of their religion. However, the Court concluded that the Compelling Interest Rule does not apply to "incidental effects" of government actions. The Rule only applies to outright prohibitions, indirect coercion, and penalties on the free exercise of religion.

Employment Division v. Smith, 1990
At issue was whether denying unemployment compensation to workers fired for the sacramental use of peyote, a hallucinogenic drug, at a Native American Church was a violation of the Free Exercise Clause. The Court held -- "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development'...The 'compelling government interest' requirement seems benign...what it would produce here -- a private right to ignore generally applicable law -- is a constitutional anomaly...we cannot afford the luxury of deeming presumptively invalid, as applied by the religious objector, every regulation of conduct that does not protect an interest of the highest order."

City of Boerne v. P. F. Flores, Archbishop of San Antonio, 1997
At issue was whether the denial of a building permit to the St. Peter Catholic Church in a historic district in the city of Boerne was a violation of the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993, or whether the legislation was unconstitutional. The Court noted that the RFRA was passed in direct response to Employment Division v. Smith and restored the compelling interest test and required governments to justify burdens placed on the free exercise of religion. Section 5 of the XIV Amendment states, "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." The XIV Amendment imposes the requirements of the First Amendment and the Free Exercise Clause on the states.
The Court held the power of section 5 applies only to enforcing the law of the First Amendment and not to decreeing the substance of its meaning. As the RFRA alters the meaning of the Free Exercise Clause as established by the Court, the legislation is unconstitutional.

Gonzales v. Centro Espirita Beneficente Uniao do Begetal, 2006
At issue is whether the Federal Government's seizure of a sacramental tea, that is hallucinogenic, used at a church service, violated the RFRA, because a compelling state interest was not demonstrated in denying its use. Congress has found that the tea involved is abusive, unsafe even under medical supervision, and its importation violates an international treaty. In an unanimous decision, the Court held the government did not show a compelling interest to bar the religious use of the tea according to the RFRA regulations. Thus, a preliminary injunction was proper, allowing the use of the tea until time of trail, when the government can present further evidence for the necessity of the seizure.

Final Note

Has the Supreme Court clarified the meaning of the free exercise of religion in upholding it as a separate clause within the First Amendment? Were our founding fathers as confused on the meaning of the clause as our Justices seem to be?

Next we will look at the Establishment Clause.

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Everson v. Board of Education, 1947

Postby Paul » Tue Mar 09, 2010 6:00 pm

Congress shall make no law respecting the establishment of religion...

There are two primary cases which set the framework for how the Supreme Court interprets the Establishment Clause -- Everson v. Board of Education, 1947, and Lemon v. Kurtzman, 1971. However, unlike the Free Exercise Clause, which the Court reduced in magnitude of meaning, great strength is imposed upon the significance of the Establishment Clause, in determining how religious expression should be restricted in our society. Therefore, the Establishment Clause requires a more extensive examination of a broader range of factors to understand how the Court finds its meaning; and more than one post will be required to present the issues, background, and rulings involved. I will begin with a review of Everson.

Everson sets out three new principles for the First Amendment Establishment Clause -- 1. Although the First Amendment was written as a limitation on the Federal Government, it has been incorporated into the 14th Amendment, through which it applies to the states. 2. The Establishment Clause prohibits preferential aid to religion. 3. The metaphor of "a wall of separation of Church and State" as used by Thomas Jefferson controls the meaning of the clause.

At issue was whether a township could reimburse parents for money spent for transportation of their children to a Catholic school, under a New Jersey statute that authorized school districts to make rules and contracts for such costs in general. Did such reimbursement use tax dollars to support and maintain a religious school contrary to the First Amendment?

The Court considers the historical background of the First Amendment, setting out a summarization of relevant facts as follows.

The Establishment Clause reflected in the minds of early Americans a vivid mental picture of conditions and practices they fervently wanted to stamp out to preserve religious liberty. Their goal has not been entirely reached, but enough progress has been made that present day Americans are no longer reminded of the evils, fears, and political problems that caused the clause to be a part of the First Amendment.

A large portion of the colonists came to the new world to escape the bondage caused by government favored churches. These established sects had generated turmoil, civil strife, and persecution in order to maintain absolute political and religious supremacy. "With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews...men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offences for which these punishments had been afflicted were such things as speaking disrespectfully of the views of minister of government-established churches, non-attendance at those churches, expression of non-belief in their doctrines, and failure to pay taxes and tithes to support them."

The very colonial charters designated religious establishments, which repeated the old world practices and persecutions. The ministers of the government churches preached inflammatory sermons, which generated a burning hatred against dissenters. These practices became so common place as to shock the freedom-loving colonials into a feeling of abhorrence. The state of Virginia achieved a dominant influence and provided leadership of a movement to adopt the religious liberty provisions of the First Amendment. In Virginia, the people reached the conviction that religious liberty was best achieved when the government "was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group."

The movement reached its dramatic climax when Virginia was about to renew a tax levy for support of the established church. James Madison and Thomas Jefferson led the fight against the tax. These men also played leading rolls in the drafting and adoption of the First Amendment. Most states had already provided similar protection for religious liberty, but some persisted in their discrimination of others.

The Court noted that in prior cases it had already elaborated on the history of the Free Exercise and Establishment Clauses and the evil they were intended forever to suppress. These cases gave broad interpretation to the Establishment Clause. The Court quotes Watson v. Jones, 1871, in its review of a South Carolina Appeals Court case, as well summarizing the complimentary interrelation of the Free Exercise and Establishment Clauses. "The structure of our government has, for the preservation of civil liberty, rescued temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasions of the civil authority."


In addition to deciding that the 14th Amendment incorporated the First Amendment, The Court held --

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activity or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a 'wall of separation between Church and State.' Reynolds v. United States, supra 98 U.S. at page 164...That amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them...The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.


The Court ruled that the New Jersey statute did not breach the wall of separation, as it satisfied a public need, even though parochial schools were coincidentally benefited.

Final Note

Has the Court in Everson set out a well reasoned legal analysis of the First Amendment, depending on correct legal precedent and a true and accurate account of the historical background? Before making observations on the nature of the case, next I will review Lemon v. Kurtzman, 1971.

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Lemon v. Kurtzman, Superintendent Public Instruction, 1971

Postby Paul » Wed Mar 17, 2010 6:07 pm

Lemon v. Kurtzman, 1971, sets out three tests for determining whether an establishment of religion has occured by government -- 1. the Secular Purpose Test; 2. The Secular Effect Test; 3. The Excessive Government Entanglement Test.

At issue was whether the Establishment Clause prohibited Pennsylvania from reimbursing nonpublic schools for actual expenditures for teachers’ salaries, textbooks, and instructional materials, when limited to courses which were part of the curricula of public schools and solely secular, mathematics, foreign languages, science, physical education. By the reimbursement act, the state approved the textbooks and instructional materials and reimbursement was prohibited for any subject on religious teaching. (At the same time the Court considered a Rhode Island statute that supplemented, up to 15% annually, the salary of teachers of secular subjects in nonpublic schools, under conditions similar to the Pennsylvania law. In both cases, the great majority of the schools benefited were religious).

The Court discerned three tests on the establishment of religion from a review of their prior cases.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [403 U.S. 602, 613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.


The Court found the state statutes had no intent to advance religion, but the states concluded secular and religious education can be identified and separated. However, the legislatures recognized the significant religious mission of the schools and that their activities were substantially religious in orientation. The Court held that the cumulative impact of the entire relationship between the schools and the states involved excessive entanglement between government and religion. The restrictions of the statutes required surveillance to ensure teachers played no ideological role.

Broader entanglement is presented from the political divisiveness such state programs would create. It can be assumed such state programs would entail considerable political activity. Partisans of religious schools would inevitably promote political action for their economic benefit, and those opposed to such aid would respond. Campaign techniques would be used by each side to try have their positions prevail, and people would vote on the issues according to their faith. Ordinarily political debate and division, however vigorous or even partisan, is normal and healthy, but the First Amendment was intended to protect against the evil of political division on religious lines.

A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.

Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969). The potential divisiveness of such conflict is a threat to the normal political process. Walz v. Tax Commission, supra, at 695 (separate opinion of HARLAN, J.). See also Board of Education v. Allen, 392 U.S., at 249 (HARLAN, J., concurring); Abington School District v. Schempp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring). To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse [403 U.S. 602, 623] and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief.



Thus, the reimbursement acts considered in these cases were struck down as unconstitutional.

Final Note

There are additional cases to consider now on how the Court has dealt with the Lemon tests, but before moving on to their review, in the next post, I will briefly comment on two underlying factors relevant to our examination of the First Amendment -- the role of original intent in determining the meaning of a law, and how is religion even to be defined.

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1. On "Original Intent" - 2. A Definition for "Religion"

Postby Paul » Thu Mar 25, 2010 7:53 pm

As a general principle of jurisprudence, laws enacted by governments must be interpreted according to the meaning intended by the authors. Judges cannot read their personal preferences into the language of a law. However, very often only a broad outline of original intent can be discerned. It cannot be determined with complete precision what was the intention of the 55 authors of the Constitution, or what compromises were made to affect meaning, or what the people who voted for the First Amendment believed was being stated. And the Constitution was designed to be flexible, to apply to unforseeable future circumstances, upon which the authors in their time could not comment. On the other hand, if Constitutional interpretation by the Court is too flexible and constantly changing, then the decisions rendered become virtually meaningless. However, in considering original intent, the Court cannot change or contradict as much as is completely clear from a proper review of the historical record. One question that often arises since Everson v. Board of Education, 1947, is -- has the Court made a fair assessment of the historical record to determine the original intent of the First Amendment, or has a special selection of facts been utilized to accomplish a contrary and particular purpose?

A more complete review of the historical record will be considered as this thread continues, as a part of of assessing the quality of the Court's position on the First Amendment. However, in striving for objectivity, a thorough understanding of the cases associated with Everson and Lemon v. Kurtzman, 1971, must first be accomplished, which will be set out by review in concise format. These cases will be presented in segments according to chronology.

However, another important concept to understanding the First Amendment is -- How should religion be defined? Therefore, Torcaso v. Watkins, 1961, initially will be reviewed at this point, though slightly out of chronological sequence, as the Court does comment in this case on an overall definition of religion.

At issue in Torcaso was whether a person in the State of Maryland could be denied a commission to the office of Notary Public for not declaring a belief in the existence of God. "Article 37 of the Declaration of Rights of the Maryland Constitution provides '[N]o religious test ought ever to be required as a qualification for any office of profit or trust in the State, other than a declaration of belief in the existence of God..."

The Court found as unnecessary the consideration of whether Maryland's test oath requirement also violated the provision of Article VI of the Federal Constitution that 'no religious Test shall ever be required as a Qualification to any office or public Trust under the United States.'

[Footnote 1]
Appellant also claimed that the State's test oath requirement violates the provision of Art. VI of the Federal Constitution that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices.


After a review of the issues involved and basic facts, the Court refered to historical considerations.

There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us -- it sets up a religious test which was designed to, and, if valid, does, bar every person who refuses to declare a belief in God from holding a public "office of profit or trust" in Maryland. The power and authority of the State of Maryland thus is put on the side of one particular sort of believers -- those who are willing to say they believe in "the existence of God." It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith. This brought on a host of laws in the New Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical "establishment" of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers. [Footnote 3]

There were, however, wise and farseeing men in the Colonies -- too many to mention -- who spoke out against test oaths and all the philosophy of intolerance behind them. One of these, it so happens, was George Calvert (the first Lord Baltimore), who took a most important part in the original establishment of the Colony of Maryland. He was a Catholic and had, for this reason, felt compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high governmental office. He again refused to take that oath when it was demanded by the Council of the Colony of Virginia, and, as a result, he was denied settlement in that Colony. [Footnote 4] A recent historian of the early period of Maryland's life has said that it was Calvert's hope and purpose to establish in Maryland a colonial government free from the religious persecutions he had known -- one "securely beyond the reach of oaths. . . ." [Footnote 5]

When our Constitution was adopted, the desire to put the people "securely beyond the reach" of religious test oaths brought about the inclusion in Article VI of that document of a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article VI supports the accuracy of our observation in Girouard v. United States, 328 U. S. 61, 328 U. S. 69, that "[t]he test oath is abhorrent to our tradition." Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter adopted our Bill of Rights, including the First Amendment. [Footnote 6] That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. Since prior cases in this Court have thoroughly explored and documented the history behind the First Amendment, the reasons for it, and the scope of the religious freedom it protects, we need not cover that ground again. [Footnote 7] What was said in our prior cases we think controls our decision here.


After reviewing findings in Cantwell v. Connecticut, 1940, Everson, McCollum v. Board of Education, 1948, Zorach v. Clauson, 1952, the Court held --

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, [Footnote 10] and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. [Footnote 11].

[Footnote 11]
Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id. at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.


Final Note

Thus, in Torcaso, the Court admits that a religion is more than a belief in the existence of God but includes other systems of thought, even Secular Humanism. This admission will become very significant as assessments are made on the true meaning the Court has given to the First Amendment and what impact their decisions have had on American society.

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