An Unbalanced Butchering of the First Amendment

An Unbalanced Butchering of the First Amendment January 1, 2018

NPR’s Tom Gjelten focused on an important subject in this piece for Morning Edition last month, “From Roy Moore to Tax Debate, a Spotlight on Christian Nationalism.”

That link takes you to the online, written version of Gjelten’s report, which provides a pretty good overview of the subject, even working in some smart commentary from Sarah Posner. The report doesn’t get into the fact that Christian nationalism in America has never existed apart from white nationalism, but I’ll give that a pass since one can’t cover everything in a three-and-a-half-minute radio piece. That’s not what had me so furiously disappointed with Gjelten and NPR when I first heard this story driving home from work.

To read that bit — the bit that had me angrily shouting in the car — we need to turn to NPR’s transcript of the original broadcast:

TOM GJELTEN: The First Amendment guarantees religious freedom but also prohibits the establishment of an official religion. Disagreement over how to balance those principles is complicating the tax reform debate.

This is hot nonsense and an ignorant mess. It’s like saying the Sixth Amendment protects us from unreasonable search and seizure but also requires warrants must have probable cause, and that Americans have long disagreed about “how to balance those principles.”

Gjelten’s “but also” implies there’s some innate contradiction between free exercise and no establishment — some conflict that requires a corrective “balance.” That’s wrong. That’s wrong in a way that suggests an utter lack of understanding of both parts of what the First Amendment says about religion. And it’s wrong in a way that ultimately feeds and strengthens the very kind of Christian nationalism Gjelten is attempting to describe.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These are complementary clauses. Their relationship is not “but also.” It is, rather, “and therefore also.” These are not competing clauses requiring some difficult “balance,” but each is the necessary complement and consequence of the other. The no establishment clause can and must be derived from the free exercise clause. And vice versa. Get rid of one and you do not strengthen the “other side” of some “balanced” scale, you cause both of them to shrivel and disappear. The free exercise of religion — freedom of conscience, “religious liberty” (before that phrase was turned into a meaningless slogan) — cannot exist in the presence of an established religion.

Ain’t no “but also” about it. And nothing here requires some delicate “balance.” If there is no prohibition against the establishment of an official religion, then there can be no free exercise. If there is to be free exercise, then there can be no establishment of an official religion.

The all-too-common confusion expressed there by Gjelten — and shared by the Christian nationalists he otherwise capably reports on here — includes the mistaken notion that an establishment of official religion would enhance the free exercise of religion for adherents of that official religion. Sure, such an establishment or privileging might be difficult for religious minorities, but it would be a great benefit for the free exercise of the majority religion.

That’s not true. It’s not true in the theoretical abstract, and it has never been true in the actual world. In the actual world, the establishment and privileging of one official religion has always resulted in the restriction of religious freedom for everyone — including adherents of that official religion.

“Christian nationalism” provides an excellent illustration of this. America, these folks argue, is a Christian nation. Christian hegemony is essential to its character, culture, laws, and government. They benevolently concede that adherents of other religions — Jews, Muslims, Buddhists, Hindus, Pagans, Scientologists, atheists, nones — should have some right to freely exercise their religions as well, “but” those rights must be “balanced” against the essentially Christian character of America.

It’s obvious that Jews, Muslims, atheists and the rest will be losers under such a scheme — their free exercise rights will be abridged and constrained. But doesn’t that mean that Christians would be winners?

No. No it absolutely doesn’t.

Mary Dyer, a Christian, was executed for freely exercising her religion in violation of the established Christian religion of Boston.
Mary Dyer, a Christian, was executed for freely exercising her religion in violation of the established Christian religion of Boston.

Because who, under such a framework, qualifies as “Christian”? Which Christians are the correct, real, true, official variety? Catholics or Protestants or Mormons? The Christian nationalists all assume it would be Protestants, but which Protestants? An established state religion cannot be generic. It has to be specifically sectarian, denominated, with clearly drawn boundaries. Those sectarian and doctrinal boundaries will have to be litigated, and thus will be shaped and defined by courts granted the authority and assumed capacity to shape them.

Membership in the official, established sect will thus always be contested. Adherents of the dominant official sect will have to be ready and able to demonstrate and to legally prove the legitimacy of their membership and the sincerity of their adherence to the correct and proper set of official sectarian distinctives. This is not what an enhancement of their right to free exercise looks like.

For a real-world example of what this religious nationalism really looks like in practice, consider this story from last week: “Pakistan man exonerated after serving 9 years for blasphemy.”

ISLAMABAD (AP) — Pakistan’s supreme court exonerated a man convicted of blasphemy after he served nine years of a life sentence in prison.

A two-judge panel of the court ruled on Friday that Mohammad Mansha was falsely accused, citing lack of evidence,

According to court records, Mansha, 58, was arrested in September 2008 after the imam of a mosque in the Bahawalnagar district in Punjab province told authorities that Mansha had desecrated a copy of the Quran. …

Mansha’s defense attorney, who asked not to be named for fear of retribution … said that following the complaint, his client was presented before a village council where he was badly beaten then handed over to police.

Mohammad Mansha’s religious freedom was not enhanced by the establishment of his own religion as the official state religion of his country. It doesn’t work like that.

The right of free exercise cannot exist without the prohibition of establishment. No “buts” about it.

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