Bryan Fischer: Freedom of religion only for Christians

In the wow, just wow category, Bryan Fischer continued his supremacist ways by stating that constitutional guarantees of freedom of  religion applies only to Christians. To wit:

Islam has no fundamental First Amendment claims, for the simple reason that it was not written to protect the religion of Islam. Islam is entitled only to the religious liberty we extend to it out of courtesy. While there certainly ought to be a presumption of religious liberty for non-Christian religious traditions in America, the Founders were not writing a suicide pact when they wrote the First Amendment. 

To bolster his claim, Fischer quotes Supreme Court Justice Joseph Story out of context:

“Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation…

“The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.”

Story, writing as a constitutional historian, is quite clear. The purpose of the First Amendment was not “to advance Mohametanism” but to “exclude all rivalry among Christian sects.”

However, a elsewhere in the same book, Commentaries on the Constitution of the United States (1833), Story wrote:

It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states episcopalians constituted the predominant sect; in other presbyterians; in others, congregationalists; in other, quakers; in others again, there was close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it has not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship. (596-597)

Justice Story said correctly that most people in the early nation were Christian of one stripe or another. The common understanding was the state would advance Christianity, but Story’s argument, if read in context, was that the United States would be different. In matters of national business, there was not to be a religious test, no inquiry about allegiances to a particular religious view.

Elsewhere in his book, Story writes about the religious tests in England for those pursuing public office. Candidates had to demonstrate allegiance to the Church of England via statements from clergy and involvement in religious ceremony. Such tests according to Story, were designed to keep out “non-conformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries…” However, the First Amendment stood against the formation of such tests in the new nation.

Story’s real argument is for a government which respected the individual conscience, saying that the “rights of conscience are, indeed, beyond the just reach of any human power.” (p. 727). Reading the relevant sections, it becomes clear that Fischer has pulled out a section out of the context of Story’s eloquent tribute to freedom of conscience that is the First Amendment.

As an addition to this post, I want to include a lengthy section of Joseph Story’s writing (free on Google books) on religious tests for involvement in public life. Story is commenting specifically on Article VI, paragraph 3 of the Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Although primarily influenced by Christianity, the founders did not want state limitations on conscience and made that explicit. Story’s commentary blasts religious bigotry and supremacy and should be heeded by those on the Christian right who want to limit the religious freedom of others.

1841. The remaining part of the clause declares, that “no religious test shall ever be required, as a “qualification to any office or public trust, under the “United States.” This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government. The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries ,- and not wholly unknown to our own. They knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility.

The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment, that it was proclaiming the right of private judgment, prescribed boundaries to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyrdom. The history of the parent country, too, could not fail to instruct them in the uses, and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no equivocal language, and enforced with a stern and vindictive jealousy.

One hardly knows, how to repress the sentiments of strong indignation, in reading the cool vindication of the laws of England on this subject, (now, happily, for the most part abolished by recent enactments,) by Mr. Justice Blackstone, a man, in many respects distinguished for habitual moderation, and a deep sense of justice. “The second species,” says he “of non-conformists, are those, who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the reformation, to be papists, and protestant dissenters; both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divided from it upon material, though erroneous, reasons; but many of the dissenters, upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If, through weakness of intellect, through misdirected piety, through perverseness and acerbity of temper, or, (which is often the case,) through a prospect of secular advantage in herding with a party, men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it; unless their tenets and practice are such, as threaten ruin or disturbance to the state. He is bound, indeed, to protect the established church; and, if this can be better effected, by admitting none but its genuine members to offices of trust and emolument, he is certainly at liberty so to do; the disposal of offices being matter of favour and discretion. But, this point being once secured, all persecution for diversity of opinions, however ridiculous or. absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of the clergy, the posture of devotion, the materials and colour of the minister’s garment, the joining in a known, or an unknown form of prayer, and other matters of the same kind, must be left to the option of every man’s private judgment.”

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  • They knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility.

    What a wonderful sense of clarity Joseph Story ascribed to the framer’s of the constitution. Where is this same sense of clarity in today’s vitriolic dialog visa vie all matter of social issues, whether it be Islam, education, universal coverage for all members of society, same sex marriage and the definition of family, and the rights of sexual minorities?

    I, for one, would hope that reasonable people would prevail in their attempt to uphold the principle of the separation of church and state in the never-ending dialog. I also hope that the emerging nations that are currently challenged and handicapped by the influence of their religiosity—case in point Uganda, where sexual minorities are under attack—might also embrace this principle.

  • Very insightful post – thank you!

  • Jayhuck

    I’m with Lisa. It was a pleasure to read more excerpts from Justice Story’s book.

  • David Blakeslee

    This looks familiar:

    Reading the relevant sections, it becomes clear that Fischer has pulled out a section out of the context of Story’s eloquent tribute to freedom of conscience that is the First Amendment.

    Where have we seen this before…pulling out material from its proper context?

  • ken

    Ironically, the 1st Amend clause on religion is there to protect the people from the ideas espoused by brian fischer.

  • hazemyth

    I was just reading this Volokh Conspiracy post, which offers further evidence of the framers’ ecumenical understanding of the freedom of religion:

    Islam and the First Amendment

  • Jayhuck

    I LOVE The Volokh Conspiracy!

  • Hazemyth, thanks for the link to Volokh Conspiracy, which specifically mentions Thomas Jefferson and the Virginia Statute of Religious Freedom:

    Likewise, Thomas Jefferson wrote that the Virginia statute protecting religious freedom, which he drafted, deliberately covered “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination,” and that a proposal to mention Christ in the bill “was rejected by a great majority, in proof that they meant to comprehend” all religions.

    The VC post also notes that prior to the drafting of the U.S. Constitution, various state constitutions had included language that protected any and all religious beliefs so long as they acknowledged Christ, or any and all religious beliefs so long as they acknowledged a Supreme Creator, etc. Thus, the framers of the Constitution had been very much aware of these alternative phrasings — but rejected them — when they chose the language used in the Constitution’s “no religious test” clause and in the First Amendment.

  • Of course, there is one very limited sense in which Fischer is correct when he says that the Constitution is “not a suicide pact”: the First Amendment cannot be understood as “protecting” totalitarian strains of Islam that more or less literally aspire to overthrow Constitutional, secular governments and establish a global caliphate in the more or less “near” future. (Note: I exclude interpretations of Islam which anticipate the eventual emergence of a global caliphate but tend to locate this in the non-foreseeable future. In other words, merely having Triumphalist expectations does not make a faith “totalitarian.”)

    There is an implied mutual social contract in the First Amendment and in the Constitution generally, and those who do not agree to be constrained by the First Amendment cannot claim a right to its protections.

    But that said, if totalitarian, anti-Constitutional interpretations of Islam are not fully protected by the First Amendment, then neither are totalitarian interpretations of Christianity. So if Fischer wants to pick on the Muslims while ignoring the Christian Reconstructionists, then he’s wrong to do so.

  • Juan

    As us pretty much always the case, quotes are taken out of context. Fischer’s comments are obviously provocative and the notion of the First Amendment applying exclusively to Christianity is obviously wrong. But he spends most of his post explaining that groups intent on bringing down America or constructing buildings to support that mission may not be covered. Sounds like another mountain out of a molehill to me. Do Republicans and Conservatives really believe and act on every word of Fischer’s?

  • Juan

    I suppose I have to mention that I am left of center. And atheist.

  • As us pretty much always the case, quotes are taken out of context.

    It was the freakin’ lede, Juan: “The First Amendment was written by the Founders to protect the free exercise of Christianity.”

    And just in case there was any doubt about what he meant, Fischer added: “there certainly ought to be a presumption of religious liberty for non-Christian religious traditions in America.”

    As I wrote above, at the time that the U.S. Constitution was written, the constitutions of the separate states already provided a diversity of models for a “religious liberty” clause — and indeed, some of these models protected Christian denominations but were relatively less protective of non-Christian faiths.

    So if — as Fischer maintains — it had been the intention of the Constitutional Framers to guarantee religious liberty as a birthright for Christians but a mere privilege for everyone else, the various state constitutions gave them plenty of templates to use.

    But instead, the state model that the U.S. Constitution most strongly resembles in regard to religion is that of Virginia — whose “Religious Liberty Statute” (authored by Jefferson) was sweepingly, radically, unprecedentedly non-sectarian in the scope of its coverage and its total lack of “all animals are equal but some animals are more equal than others” preferentialism.

    (Indeed, while TJ has been fairly criticized for his — ahem — lukewarm commitment to racial non-discrimination, on the matter of religious non-discrimination, he really hit a grand slam out of the park.)

  • ken

    Juan# ~ Mar 28, 2011 at 5:33 pm

    “As us pretty much always the case, quotes are taken out of context.”

    they aren’t out of context. although Warren did leave text out of what Fischer originally wrote (and really Warren you should use when you do that), it did not change the meaning or accuracy of Fischer’s statements.

  • Etaoin Shrdlu

    It’s important to recognize that Story based what he wrote on four main things:

    1) Sir William Blackstone’s Commentaries on the British Common Law, not the Constitution (he died before it was written).

    2) Montesquies’ “Spirit of the Law”, written in 1848 (again, before the Constitution).

    3) A brief excerpt from ONE committee of Congress debating the FIRST DRAFT of what would become the First Amendment (during which NOTHING was said supporting Story’s opinion).

    4) His home State’s (Massachusetts) practice of having an established church (Congregationalist). Ironically, the very year Story ventured his opinion (1833) was the year Massachusetts DISESTABLISHED the church!

    In short, Story’s opinion is supported by NOTHING!