Volokh Conspiracy on Bryan Fischer's views of the First Amendment

Last Friday, Eugene Volokh analyzed Bryan Fischer’s claims about the First Amendment and found them wanting.  You’ll remember Mr. Fischer, I’m sure; I have written about his views a few times. Last week, Fischer said:

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. 

By referring to non-Christian religious traditions as those to which liberty is extended by courtesy and not fundamental right, Fischer extends his vision much wider than ever before. I addressed Fischer’s claims here. A more authoritative legal source is Mr. Volokh who wrote:

Actually, both the First Amendment and the No Religious Test Clause of the original Constitution were quite deliberately written to cover all religions. Many state constitutions of the era did limit their protection to Protestants (New Jersey, North Carolina, and Vermont) or Christians (Delaware, Maryland, and Massachusetts). Some others (New Hampshire and South Carolina) provided for funding of Protestant or Christian teaching, or more broadly established Protestantism, but did not limit religious freedom protections or office-holding.

But the U.S. Constitution did not have any such limitation. James Iredell, later one of the first Justices of the Supreme Court, specifically defended the No Religious Test Clause on precisely these grounds:

I consider the clause under consideration as one of the strongest proofs that could be adduced, that it was the intention of those who formed this system to establish a general religious liberty in America…. 

But it is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world. The people in power were always right, and every body else wrong. If you admit the least difference, the door to persecution is opened.

To get the rest of the good, read the remainder of the post at Volokh Conspiracy.

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