Wednesday, July 1, 2015

Contemplating the Bill of Rights: The First Amendment

One of the happier circumstances of this column and this site is that people actually absorb the thoughts of the writer, and decide that there are indeed more things, more topics and some nifty ideas that they would like me to write on.

Now, understanding that I work for a living, that this column is not my profession and that I earn no money at all from it (unless you would care to advertise), it is of necessity a home of stream-of-consciousness essays.  I can contemplate the topics, but extensive research, well, there is not a lot of time for that.  What is here is, well, what I think about.

I did, however, get a very-much appreciated request to ramble on in a series of pieces devoted to the Bill of Rights, a sacred emblem to many of us and, I imagine, to most readers of this site.  Would I write, the reader asked, a series on each of the enumerated rights (in the Bill of Rights), and particularly contemplate the good and bad consequences that we must live with in a free society, driven by each.  But you have to write it off the top of your head.

Well, sure.

So let's start at the very beginning, and over the coming weeks, I'll sneak in Amendments 2-10 as the events of our world allow me to do.  Here, friends, is the First:

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

The First Amendment has consequences aplenty, and there is no better time to write about it. After all, the Supreme Court has just this past week ruled that a religious-cum-political ceremony -- marriage -- is no longer the legal province of the States to regulate, but it is the law, such as the Court can make them (which it can't, but now apparently has), that the States can not even decide for themselves and their citizens who is permitted to enter into it.

But I digress, if only a little.

We are probably the first, certainly the most important nation on earth, to have ever established itself with a specific organizational principle that we are not a country founded on (any one) faith.  Founded on "faith in general", well, not that either.  No amendment sets any principle like it -- the USA, having been founded almost totally by Christian citizens, goes so far as to make its first promulgated freedom that of being free not to practice a faith mandated by the nation's legislature, or even the one practiced by practically all its citizens.  Moreover, that legislature could never subsequently oblige its citizens to practice a specific religion, or practice none at all, nor could it prevent its free exercise.

Oh, what our Founders have left us.

One has to concede that as the world has shrunk, and as we have become a grand melting pot for immigration by practitioners of all this world's denominations, it is almost silly to think that Congress would any longer be tempted to "establish" a faith -- even absent the establishment clause.  We are less Christian a nation than we ever have been; more Muslim, more Jewish, more Buddhist and Baha'i and probably more atheist -- OK, almost certainly more atheist.

But no, the consequences of the First Amendment most of interest are not those of the establishment clause, but rather of the subsequent phrase -- prohibiting the free exercise thereof.  How much discipline it must take for us to remind ourselves that the Amendment refers only to banning actions of Congress -- Rhode Island is perfectly free to set itself up as a Muslim caliphate if it so chose, and not only are they perfectly free to do so, but Congress cannot do a thing about it -- they are barred from interfering in what would be a "free exercise" on the part of the state.

For Congress to stay out of religion -- and we must always retreat to the text, as it clearly and specifically is only talking about Congress -- is truly difficult.  What, for example, will happen when some state passes a law that protects bakeries from being sanctioned for declining to cater gay weddings?  Or a law that protects a church like, I don't know, the Roman Catholic one, from being sued for declining to perform gay weddings on religious grounds?  Or a gynecologist from declining on religious grounds to perform an abortion? 

In none of these cases can Congress intervene legislatively.  And we will live with that.  But how do we act when the Supreme Court, as it did last week, acts in loco Congressis and makes a decision that we can only regard as a law that should have been developed and acted on by Congress?

I think that the most difficult attribute of the establishment clause, the most disciplined we must be, is to avoid taking the notion of "separation of church and state" and reading that into text where it does not exist.  We are a nation that is supposed to allow the free exercise of religion, and Congress can defend that freedom, and shortly, I believe, it will be asked to. 

I also would like us to have a real dialogue, maybe with dueling latter-day Federalist Papers, about whether the Framers intended to confine the prohibition on Congress messing with religion just to Congress, in the sense of asking what the States may or may not do.  No, I think we are not in fear of Rhode Island becoming a caliphate, but would the Framers have allowed it, or thought it a legitimate act of a State?  They had to have discussed it, since at least some of the colonies were indeed denominationally oriented at their individual creation.

I ask that because of the rest of the First Amendment -- what do we think the 2015 version of "peaceful assembly and redress of grievance" is?  That's one where I think there is a great deal of risk of individual states meddling in a fundamental right.  Do we not think that if UC-Berkeley, an institution that is a part of the State of California, sets up those inane "free speech zones", that by extension they have limited the right of peaceful assembly elsewhere on campus?  Congress can't create those, but they could forbid them -- they can pass laws declaring them in violation of the First Amendment.

Why did the Framers not extend the prohibition on preventing assembly to the States?  What are we to take from the fact that they didn't?

So many consequences, so little time.  And so many discussion points.  Forgive the rambling, but it's a free country and we are allowed that right.

Copyright 2015 by Robert Sutton
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