Freedom of Religion

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Establishment Clause

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  1. a set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs.
  2. a specific fundamental set of beliefs and practices generally agreed upon by a number of persons or sects: the Christian religion; the Buddhist religion.

So religion is a set of beliefs, concerning the nature of the universe or agreed upon by a number of persons or sects.

Now, lets look at the current jurisprudence  (a fancy word for what the courts are saying). Have you seen news reports where nativity scenes, crosses or ten commandments display are considered unconstitutional because seeing them would lead someone to believe the government was establishing a religion? Or how about someone suing to have a cross or other symbol removed because it offended them? In neither case has the government caused a belief system to be created or to be given a firm or stable foundation, rather public land has been used by members of the public to express their beliefs and celebrations. Governments establish colleges by giving them money, not by allowing them to display their flags and signs on public property. Simply allowing a person or organization to display their symbols on public property, (by definition owned by the entire public) does not establish a religion. On the contrary, by only allowing certain beliefs, (like humanism, atheism or scientism) the government IS establishing a religion, just one not based on deism.


Free Exercise Clause

or prohibiting the free exercise thereof


Government is not allowed to establish a religion, but it's also not allowed to prevent you from FREELY exercising your religion. That's right, if you want to display a menorah, or the ten commandments or any religious symbols that is your right. Anywhere you are legally allowed to display any symbol you can display religious symbols. By the way, that includes t-shirts in public schools, crosses along side highways and even bibles in the workplace. Other people may be offended, but that's part of living in a free country, you have to accept the free exercise of other people's rights.


Freedom of Worship vs Religion

Some may say that freedom of religion means we are free to worship in any religion we want, but that is not what the Constitution says. Yes, we have the right to worship where we please, but the exercise of our religion is more than just showing up for a worship service. Our religion, our fundamental beliefs, help form our conscience. That is why this freedom is sometimes referred to as "freedom of conscience". If the government can force you to restrict or violate your conscience they have violated the free exercise clause. That's right folks, when the government says you have to participate in something that is against your religious beliefs, (like participating in abortions, wedding ceremonies that violate the tenants of your faith or just not speaking about your faith where you can speak about anything else, they are violating your free exercise rights and in some cases violating the establishment clause as well.

And notice I said when the government does these things. Part of living in a free society means allowing others to live by their beliefs as well. That means private establishments are free to ask you not to involve them in your exercise of religion. Please recognize their rights as well and find another place to exercise your religion… preferably a public place.  


Separation of Church and State

This post has gone long, so I will continue this in another post shortly.

Separation of Church and State

OK, we can't really have a discussion about freedom of religion without discussing the separation of church and state.

If you read Amendment I know what you will not find? The words "separation of church and state". In fact, if you read the entire Constitution you will not find those words. So where did this term come from?

In 1801 the Danbury Baptist Association sent a letter to to the newly elected president Thomas Jefferson.


Our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions... But, sir, our constitution of government is not specific. … and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen.


The Danbury Baptists were worried that the way religious freedom was written into the first amendment made it look like it was not an inalienable right but one granted by government. In response Jefferson wrote a letter back to the Baptist explaining that the Constitution forbids such interference.


Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.


There is to be a wall of separation between church and state, as Mr. Jefferson said, but it is to protect the church from the state not the other way around. So the next time someone brings up separation of church and state, point out that those words are not in the Constitution and that the concept was meant to keep the government out of people's religious expressions.

And while you're at it, why not help rebuild this wall of separation by working to restrain the government from encroaching on people's free exercise of religion. Stand with groups fighting against the removal of nativity scenes and the ten commandments. Go to your public schools and argue for the right of students to pray at games, put on Christmas pageants and to where crosses & shirts with biblical texts on them. For that matter, argue for the right to say the pledge of allegiance, "One nation under God" and all along with the right of those for whom that would violate their religious beliefs to respectfully remain silent. Maybe then this wall will be rebuilt stronger than ever.

Freedom of Speech

Congress shall make no law... or abridging the freedom of speech,


After religion the first amendment guarantees our freedom of speech. Does that mean we are free to say anything we want any time we want? I do not recommend trying this, but just imagine you are called to testify in a court of law. Are you free to say anything you want? Are you free to testify what you know to be untrue because you believe the defendant is innocent? No, that is called perjury. So there are proper limits that can be placed on your speech. So the question is, what are the limits on where and how government can limit your freedom to speak?

Lets start with the question, does your freedom of speech include the right to be heard? Freedom of speech means I have the right to say what I want, not that I am required to have an audience. Unfortunately for artists who think people not buying their albums is a violation of their freedom of speech that just isn't true. I can speak what I want but it is still up to me to be engaging enough to persuade others to listen to me. This also comes into effect with what is commonly referred to as the "Fairness Doctrine". Under the fairness doctrine radio stations are required to put people on the air with differing points of view in order to be perceived as "fair". However this is not fair, it is coerced speech, the exact opposite of freedom of speech. If you are required to provide speech that the government requires that is coercion. Some say that radio uses the public airwaves, which is true, but do you require street advertisers to promote their competitors because they are using the public sidewalk? Of course not! So why should forcing radio programs to provide a format for views they are competing with? If the ideas were engaging and persuasive they wouldn't need to the government to bully others into airing them.

Next, let's discuss the rise of self-censored speech. Today political correctness has taken over. There are those who say they "will tolerate anything except intolerance". But aren't they being intolerant of views they disagree with? Political correctness is the opposite of freedom of speech. Political speech says there are those who will determine what speech is allowable. But who are these people who determine what others can say? Usually it seems to be those who think they know better and have a right not to be offended by speech they disagree with. But this is not freedom of speech! Freedom of speech means, unless doing so would infringe on the rights of others, I can say what I want without fear of reprisal from the government. (Remember, we do not have a freedom from offense, so simply being offended is not a valid reason to infringe on someone else's right.) Notice I said reprisal from the government. As a society we may argue, shun and even ostracize speech we find offensive. This too is a freedom of speech, to speak against what we believe is wrong. As society has degraded those who speak against certain ideas, like the right to abortion or acceptance of different lifestyles, our freedom of speech has been curtailed. Now people are told that acceptance of certain lifestyles is a requirement of being part of society. We are told we cannot speak against abortion anywhere near an abortion center. College students are told they can only exercise their freedom of speech in certain areas at certain times. And we are told that pastors are not allowed to speak on certain current issues because they are currently being debated in public, political offices.

After our freedom to live out our beliefs, the right to speak freely is paramount to a free society. If we cannot provide and debate ideas openly, honestly and without fear of our rights being violated then how do we bring into question the works of politicians or the direction of society? How do we point out the dangers of the direction we are heading if we are not allowed to contradict "current wisdom"? Cherish this freedom, because it is quickly being taken away. Ask those from Eastern European countries how precious the freedom of speech was during the cold-war. Let us not wait until it is gone to protect our freedom to speak.

Freedom of the Press

Congress shall make no law… abridging the freedom… of the press;

If Congress cannot make a law abridging the press, we should probably start with "who is the press"?

In the 18th century the press was literally a printing press.  Now almost two and a half centuries later what is the press?  Is it just newspapers and pamphlets?  Are radio and television part of the press?  Does that include both the "news" and "editorial" departments?  What about the Internet?  Is that part of the press?  I guess the question is what makes you a part of the press?  Is it the job you do or who you do it for?  Does that mean anyone who "reports" or editorializes on what is going on is a journalist or do they have to be a professional (i.e. get paid for it).  I tend to take an inclusive point of view of the press, meaning if you are reporting on or editorializing about politics or society you should be allowed to say what you want using the medium you want.  This of course comes with some responsibilities.

First, the fact that you are free as a member of the press does not mean you are free from the consequences of your "reports".  The government cannot shut you down for what you say, but if what you say is a lie that is slander and it's illegal.  You can and should be prosecuted for it.  (Something which happens all to infrequently in today in my opinion.)  A free press does not mean you are entitled to have an audience  If what you say is not found engaging and people don't want to read or listen to you it's not suppression of your rights, you have a right to print not to be read.

Why did the founders include this right?  They wanted the public to be informed about who was in their government and what they were doing.  This information in necessary for an informed electorate.  Without fair and accurate reporting the people cannot make informed decision in the election booth.  And without an informed electorate we do not have a government of "We the People".

For the public to be informed they needed people who would keep an eye on and report on what was going on.  That means "the press" has a responsibility to report on what is going on, whether it agrees with their views or not.  It means recognizing that we all have a bias and the press should work hard to minimize it's influence on their reporting.  It also means we as consumers of reporting need to listen to multiple sources on all sides.  We need to support those who report fairly and avoid those that have shown they don't.  And the very last thing we should do is have the government supporting "news" organizations either by giving them preferential access and treatment or by guaranteeing them a marketplace when those businesses cannot remain viable on their own.

A free and honest press is essential to our republic.  Those who work to provide us the information we need to make informed decisions on our elected officials should be praised and rewarded.  Those who see it as their job to promote a position are beneath contempt.  They have every right to say what they say, and we have every right to ignore them.  And we have every right to tell our elected officials it is not their job to fund organizations like NPR.  When government is in the business of providing news coverage that press is not free.

Freedom of Assembly

Congress shall make no law... abridging the freedom of... the right of the people peaceably to assemble

We've all seen the demonstrations.  Whether for or against something, we have a right to peaceably assemble.  Occupy Wall Street has just as much right to meet on public property as Memorial Day observers.  Both "Pro-Life" and "Pro-Choice" groups can demonstrate on The Mall in Washington.  All of this is guaranteed by the Constitution as long as the demonstrators are peaceful.

Most localities require a demonstration to get a permit, based on their size.  Requesting a permit for the purpose of allowing authorities to provide proper services is a reasonable request.  You wouldn't want a small town to have tens of thousands of people suddenly show up.  How could local law enforcement provide enough officers to help keep the peace and deal with any unruly attenders who show up if they don't know it's coming.

If the permit is for the group to ask permission to assemble, that is something else.  Preventing a group from assembling, either because of their viewpoint or concerns over the size of the group is an abridgment of their right to peaceably assemble.  Simply saying that they are concerned about the chance of violence does not give the locality the authority to abridge a groups right to assemble.  This right, of course, comes with responsibilities.  Our right to assemble only exists while we are peaceable and on public property.

Have you seen demonstrations where people start damaging property or threatening others? (Think of the Watts riots or IMF demonstrations.)  These are not covered by the First Amendment since they are not peaceable.  By the same token, protests on peoples lawns or business parking lots are not covered since you are not allowed to use your First Amendment right to protest to violate another's private property rights.  While not called "private property rights" in the Constitution, there are many places where a person's private property is protected.  The Third Amendment prevents the government from taking over your home to house soldiers, the Fourth Amendment protects your property from unreasonable search & seizure and the Fifth Amendment insures your property cannot be taken without due process.  Based on this and the common law, the expectation that your property is under your control extends to limiting the rights of others to infringe on your rights.

Why is the right to peaceably assemble so important?  We are, by nature, social beings.  Isolated and alone we are weak and impotent.  But put some of us together, to see that we are not alone and we become strong.  It is easier to influence a single individual than a crowd.  Not simply the ability to demonstrate, but to associate, to pool our talents and resources toward a common goal.  The right to assemble and to express our combined opinion is at the core of a representative republic.  If we cannot assemble for protection and support we are individuals howling at the moon.  Together we become a force that can express our opinions and negotiate with others.  Why do you think unions are so important to negotiating with large corporations?  It takes the strength of a group to balance another group.

It is the balance of rights and responsibilities, the checks and balances that protects our republic from the tyranny of a few.  One person, contacting their representatives has influence.  1,000; 10,000 or 100,000 people contacting that same representative is a force that cannot be ignored.

Think of this right the next time you see a demonstration.  Ask if they are peaceably assembled.  The next time you hear someone talking about who does and doesn't have the right to communicate as a group, remember the right to freely and peaceably assemble and express the will of the group is one of the foundational freedoms of this republic.

Burwell v. Hobby Lobby - What was decided.

If you follow the news, politics or the courts at all, you've probably heard about the Hobby Lobby decision.  I've heard a lot of hype and hyperbole on both sides of this decision and wanted to discuss this decision from a purely Constitutional standpoint.

At it's heart, the question in Hobby Lobby was can the government force a private company to violate the conscience of it's owners.

Do corporations have religious freedom rights?

The first argument made was that since Hobby Lobby and the other companies who filed suit are for profit corporations they do not have religious freedom rights.  The logic behind this is that only a person can have a religious freedom right.  Unfortuantely for those with this point of view are two very important facts.

1.   According the U. S. Law (1 USC 1) the word person includes corporations.

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; 

2. Corporations are mearly a legal concept to allow persons (who have religious freedom rights) to oragnize.

Does the government have a compelling interest in having birth control provided for?

In order to help protect religious freedom, the Religious Freedom Reformation Act (RFRA) was passed into law.  Under RFRA, in order for the government to infringe on a persons religious freedom there are several test, the first of which is that the government must show a compelling interest.  In the majority opinion, Justice Alito assumed that the government, simply by createing regulations, has a compelling interest.  So tell me, what compelling interest does the federal goverment have in forcing some people to pay for the birth control of others?  Notice, I'm not talking about an interest in making birth control affordable, available or determining whether or not a doctor needs to proscribe it.  No, the assumption is that just because the goverment put forth regulations, they have a compelling interest in making one group of people pay for anothers birth control just because the people in power say so.  That is not liberty, nor is it a republic, that is a totalitarian regime.  In fact, according to the Constitution, the government has no compelling interest in making healthcare or health insurance decisions for Americans.  It seems this basic fact of our republic is lost on our government officials in Washington.

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.

Supreme Court of the United States opinion in BURWELL v. HOBBY LOBBY STORES, INC.

The second test for RFRA is, has the government used the most restrictive means possible to further it's compelling interest.  Since the executive branch had created multiple exceptions to the HHS mandate, it is rather obvious that there were other means, less infringing on the rights of the plaintiffs.

42 U.S. Code § 2000bb–1 - Free exercise of religion protected

(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

I thought this was a freedom of religion case?

The question of the HHS mandate being a violation of the first amendment wasn't even decided.

The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.

The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceed- ings consistent with this opinion.

It is so ordered.

Basically, the court found that closely held corporations are protected by RFRA and thereby have religious freedom rights.

Generally, a closely held corporation is a corporation that:

  • Has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and
  • Is not a personal service corporation.

IRS Definition of closely held corporation

Since the government did not use the most restrictive means necessary, the method of furthering it's compelling interest was unconstitutional.

Freedom of Petition

Congress shall make no law... abridging the freedom... to petition the Government for a redress of grievances

While this right is often not thought about, throughout history, most people did not have the right to ask their government to fix a wrong.  What would this country would be like if we didn't have the right to ask Congress, the states or courts to fix a wrong?  

Notice, this clause doesn't say you can petition the government to get what you want.  If we have a grievance, a complaint about our rights being abridged, we have the right to ask (petition) the government to have the wrong corrected.  This can be done through the courts, (as in a civil suit), or by asking one of your representatives to come to assist you or even to ask for a change in the law.

This right is another example of how it is the people who are sovereign in this country, how we have the power.  Sadly, in this day and age it seems this right is seen more to get the government to force others to do what we want than to deal with true grievances.  Perhaps if we spent more time studying the Constitution, we would see the power in our right to petition and use it for the good of the nation rather than our own benefit.


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