Yesterday, Bryan Fischer doubled down on his view that the First Amendment does not recognize claims of non-Christian religions. He wrote:
The leftwing political websites lit up over my column of last week in which I took the position that the First Amendment provides no guarantees to practitioners of the Islamic faith, for the simple reason it wasn’t written to protect the free exercise of Islam. It was written to protect the free exercise of the Christian faith.
First of all, it was not only left wing blogs lighting up. Notably the Volokh Conspiracy knocked down Fischer’s strange moves. Eugene Volokh is not a left-winger and neither am I.
Fischer reaffirmed his view that the First Amendment only covers Christianity.
This view of the First Amendment is confirmed by a review of the debate surrounding the First Amendment in Congress in 1789. A re-reading of the all the entries in the congressional record of the debate over the First Amendment reveals no mention — zero, nada, zilch — of Islam.
Instead, as the Founders grappled with the wording of the First Amendment, they road-tested several variations, all of which make it clear that the objective here was specifically to protect the free exercise of the Christian faith.
Here are some of the alternative versions that were considered:
- “Congress shall make no law establishing One Religious Sect or Society in preference to others.”
- “Congress shall not make any law, infringing the rights of conscience or establishing any Religious Sect or Society.”
- “Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.”
- “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion…”
- “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
The last, of course, is the wording Congress finally chose and passed on to the states for their approval.
In my view, the context of the House of Representatives debate over the religion clause undermines Fischer’s conclusion that the Representatives only had Christianity in view. Here is a lengthy excerpt of discussion of James Madison’s proposed amendment regarding religious freedom. First the language as proposed on June 8, 1789:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
And then later in August, the House took up various amendments as a Committee of the Whole. As the matter was being developed, various suggestions were offered, some of which Fischer describes in his column. The following excerpt provides a look into Madison’s explanation of his amendment.
Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.
The new government would not establish a religion, would not prefer one, and would not compel citizens to worship contrary to conscience. These rights are individual rights, not granted to a particular religion, but instead to citizens directly. The amendment was not written to protect any religion, Christian or otherwise.
Then the Representative from Connecticut spoke to what he perceived to be unintended consequences.
Mr. Huntington said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it. The ministers of their congregations to the Eastward were maintained by the contributions of those who belonged to their society; the expense of building meetinghouses was contributed in the same manner. These things were regulated by by-laws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship might be construed into a religious establishment.
By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.
Sixthly, it is the will and command of God that (since the coming of his Son the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, be granted to all men in all nations and countries; and they are only to be fought against with that sword which is only (in soul matters) able to conquer, to wit, the sword of God’s Spirit, the Word of God.
If we are to understand the intent of the First Amendment via what some Representatives said, then it seems important to go further and capture more of the context. Along with the refusal of the first Congress to allow religious tests, Madison’s Amendment provided strong protection for individual conscience without regard to membership in a religious group, such as Christianity. By Fischer’s logic, the Representatives favored Christianity as a religion, the very thing the Amendment expressly prohibited.
Please note that the evidences of Christianity found by Fischer in his reading of the Congressional debate do not cite Christianity. In fact, the phrases he believes prove that the Constitution only protects versions of Christianity (denomination of religion, religious sect, etc.) were not kept in the final amendment. Even if some legislators only wanted to protect Christian sects, the final wording did not do so.
Furthermore, direct references to Christianity were not a part of the debate on Madison’s amendment. In fact, there is a perfectly good word for Christianity that was not used in any versions of the First Amendment – that word is Christianity. Instead, those debating Madison’s amendment stuck with the general word religion.
Finally, let me examine one additional precursor to the debate on religious freedom. The Virginia legislature passed a law regarding religious freedom in 1786. You can read the entire statute here. Of interest to understand the thinking of Jefferson and other legislators on religious freedom is an amendment to the statute which ultimately failed. Thomas Jefferson in his collected works, tells the story:
The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason and right. It still met with opposition; but, with some mutilations in the preamble, it was finally passed; and a singular proposition proved that its protection of opinion was meant to be universal. Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word “Jesus Christ,” so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.
Fischer apparently refers to the Virginia case in his column but dismisses the relevance of it.
Some critics have pointed to the religious liberty plank in the Virginia constitution, and the statement of some of its advocates at the time that it specifically provided for the free exercise of Islam as well as Buddhism and Hinduism. But this only illustrates my point, because that has to do with religious expression in a state constitution, not the federal constitution.
While the application is indeed limited to Virginia, this passage does speak to Fischer’s contention that the Founders meant Christianity when they said religion. Jefferson and no doubt fellow Virginian Madison had the broader view of religion as an expression of individual liberty of conscience.
Ultimately, in my opinion, Fischer’s effort to prove that the First Amendment establishes Christianity as a state religion fails.