The First Amendment: What Argument?

I’ve been spending a lot of time studying the Constitution, lately. I really like that document and I think it is very nearly the greatest thing ever written. It’s mind-blowingly brilliant and, although there were flaws in it, the manner in which it was written and how our government was set up gave it the ability to become great. I guess I shall start with the simplicity of the First Amendment, the bedrock of my own activism.

Amendment I

 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 to peaceably assemble, and to petition the Government for a redress of grievances.

                                                                                                                                                            

In this blog I only intend to cover the first two points, although at a later juncture I would like to cover the rest. Within the framework of the law words, intent, and order are everything. So we have the establishment clause and the free exercise clause, which are the two main portions of the Constitution upon which I base my activism and my efforts for equality.

The establishment clause starts with a reference to “Congress”

Congress shall make no law respecting an establishment of religion

Congress is the legislative branch of our government. The elected representatives of Congress (which are covered in Article I) cannot create a law that prefers one religion over another. That seems pretty self-explanatory, but it’s still been a matter of contention for at least a couple centuries, somehow. If they do so it will invalidate the Constitution of the United States of America. Thus we cannot have the Congress make that law, nor have any part of government enforce said proposal.

The next part is where people, many of the christo-fascist Rushdoony degenerates (Sarah Palin being one of them), get thoroughly confused: the free exercise clause.

… or prohibiting the free exercise thereof.

Congress absolutely cannot prohibit the free exercise of anyone’s religious practice. Period! This brings us to a however…however

Precedence

The Establishment Clause comes before the Free Exercise Clause for a reason; the Free Exercise Clause is subservient to the Establishment Clause - not the other way around as some Christians would like it to be.

The Supreme Court heard the Lemon v. Kurtzman case in 1971 and ruled in favor of the Establishment Clause.

Subsequent to this decision, the Supreme Court has applied a three-pronged test to determine whether government action comports with the Establishment Clause, known as the “Lemon Test

Lemon Test:

1.      Any law or policy must have been adopted with a neutral or non-religious purpose.

2.      The principle or primary effect of any law or policy must be one that neither advances nor inhibits religion.

3.      The statute or policy must not result in an “excessive entanglement” of government with religion.

If any government entity’s actions fit into one of these three, then it is a violation of the Establishment Clause.

So according to the highest court in the land – this argument is settled.

Isn’t the law just amazing?

About Paul Loebe
  • Andrew Grover

    Well stated. It is unfortunate to see so many government officials who believe that “free exercise of religion” equates to “freedom to impose their religious beliefs upon their constituents and the rest of the US”. If more folks would just look back at these fundamental tenets of our constitution, and why it was written the way that it was written, we would all be better off for it. Atheists, Christians, Muslims, Jews, all religions, all races, and all sexual orientations.


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