The First Amendment says: "Congress shall make no law . . . prohibiting the free exercise thereof [of religion]." However, the free exercise of religion is absolute only in terms of belief. There is no total freedom in regard to action. While belief cannot be established by law, action can be limited by law. Government does have authority to uphold law and order, otherwise society has social anarchy.
On the other hand, government is limited in regard to making certain laws, otherwise society has total tyranny. One limitation placed on government prohibits laws for the mind. Thomas Jefferson wrote, "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man" (Writings of Thomas Jefferson, A. A. Lipscomb, ed., 10:175). James Madison said, "The Religion then of every man must be left to the conviction and conscience [matters of the mind] of every man" (Papers of James Madison, 8:299).
On January 1, 1802, Jefferson wrote: "Believing with you [Danbury, Connecticut, Baptists] that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions [ACTIONS] only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof [of religion],' thus building a wall of separation between Church & State. . . . , convinced he [man] has no natural right in opposition to his social duties" (Library of Congress, LC 20593-20594; Writings, 16:281-282).
The guaranteed wall of separation about which Jefferson wrote is built between government and belief. The free exercise of religion, in terms of belief, cannot be prohibited; but, in terms of action, it can be limited. The Constitution is a social contract or compact; and, man, says Jefferson, "has no natural [NO NATURAL] right in opposition to his social duties."
In 1879 the U.S. Supreme Court quoted Jefferson's letter to the Baptists and ruled polygamy unconstitutional, in spite of personal religion belief. A unanimous [9 to 0] Court wrote: "Coming as this [above letter] does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment [the religion amendment] thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order" (Reynolds v. U.S., 98 U.S. at 164).
However, there are limitations placed upon government. Jefferson wrote: "I consider the government of the United States as interdicted [prohibited] by the Constitution from meddling with religious institutions, their doctrines, their discipline, or exercises" (Writings, 11:428). Jefferson made a distinction between routine church exercises and religion actions which violate laws established by society.
In 1890 the Court again unanimously [9 to 0] defined the "free exercise" of religion and wrote: "The First Amendment to the Constitution . . . was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience [matters of the mind] . . . . It was never [NEVER] intended or supposed that the Amendment could be invoked as a protection against legislation for the punishment of acts inimical [hostile] to the peace, good order and morals of society [MORALS OF SOCIETY] . . . . However free the exercise of religion may be, it must [MUST] be subordinate to the criminal laws of the country [CRIMINAL LAWS OF THE COUNTRY]" (Davis v. Beason, 133 U.S. at 342).
The above two Court cases not only clearly define the limits of the "free exercise" of religion, but they also provide unquestioned examples of the fact that over 100 years ago the U.S. Supreme Court was using definitions of the religion clauses written nearly 200 years ago by Jefferson and Madison. These definitions were not invented 30, 40, or 50 years ago by the Court.
The free exercise clause does not mean religion is above the law--it is not. The Establishment Clause prohibits required religion and prevents religion tyranny by the majority. The Free Exercise Clause guarantees protection for law-abiding citizens and legal activities.
There is a reason why religion is not given total immunity from the laws of society. In his "Memorial and Remonstrance" Madison wrote: "Experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy [effectiveness] of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence [laziness] in the clergy, ignorance and servility in the laity, in both [clergy and laity], superstition, bigotry and persecution" (Papers, 8:301).
Furthermore, in his essay "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments" Madison wrote: "Strongly guarded as is the separation between Religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history" (William and Mary Quarterly, 1946, 3:555).
Copyright 1996 Gene Garman * * * * *Addendum:
Words mean things. The Constitution for the United States of America was not drafted overnight, and the religion clauses of the First Amendment are the result after numerous other proposed wordings were rejected. The words of the Constitution, including its religion clauses, were debated and deliberately chosen. The Constitution, therefore, is not a blank piece of paper upon which we are to read whatever we choose.
Why then the controversy as to what the Constitution, as drafted in 1787 by the Founding Fathers, says about religion? Why the discussion as to the meaning of the religion clauses as approved by the First Congress in 1789 and the states in 1791? Understanding is as simple as reading the words. Yet, confusion obviously exists in comments from laymen to scholars and from clerics to justices, because of refusal to accept the words, as written, to say what they mean and mean what they say.
For example, what about religion and politics in the United States of America? It is written in the Constitution (Art. 6, Sec. 3), "no religious test shall ever be required as a qualification to any office or public trust under the United States [UNDER THE UNITED STATES]." I learned to read in a one room country school house in Kansas. I was taught honest words mean what they say. Thus, "no" means no, "religious" relates to religion (not something else), "test" means test (like in questions about religion), "required" means required, and "to any office or public trust under the United States" means just what the words say.
The religion clauses of the First Amendment are understood just as simply: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." "No law" means no law, "respecting" means in respect to religion (not something else), "establishment" relates (in this sentence) to making authoritative by law, and "of religion" is a prepositional phrase explaining of what it is that is not to be established by law, that is, "religion."
It is apparent, in their final (FINAL) constitutional wording about religion, neither the Founding Fathers nor the prevailing members of the First Congress used the word "church." Confusion reigns when "religion" is distorted to relate only to "church." If the writers of the religion clauses had meant "church," they would have so written. They wrote "religion" because religion is what they meant. It is not merely congressional establishment of a church which is by law forbidden; it is congressional establishment of "religion." It is not only a church test which is to be kept out of politics, it is a "religious test."
One more step; one more understanding. "Thereof" in the "free exercise" clauses gets its entire [ENTIRE] meaning from "religion" in the preceding "establishment" clause. What is it Congress cannot prohibit? It is the "free" exercise of religion. In America, religion is to be freely exercised, not established or imposed by law or government (the essence of coercion); on the other hand, while religion action cannot be prohibited, there is no guarantee it cannot be abridged. Words mean things. Honest words mean what they say. The exact wording of the religion clauses was carefully chosen. The wording means exactly what it says.
Thus, one more word: "prohibiting." A prohibition is complete; it means completely forbidden. Can Congress completely forbid the free exercise of religion? No! However, the word prohibiting does not carry the same meaning as the word abridging. The two words are different--one ("abridging") relates to restrictions or reductions, and one ("prohibiting") does not--"prohibiting" means totally. The free exercise of religion cannot be totally prohibited. The relevant question, then, regarding the choice of words, since free exercise cannot be totally prohibited, is whether the exercise of religion can be abridged (reduced). The answer: Yes! Otherwise, anarchy is allowed in the names of "religion" and "free exercise." In America all actions, regardless of religion opinion, are "subordinate to the criminal laws of the country" (Davis v. Beason, 133 U.S. at 342.
Nowhere in the Constitution or in the writings of Thomas Jefferson and James Madison is found one sentence which suggests religion action is above the law. Nothing in their writings is more accepted than the principle of law as drafted in compact with the people. Never did either of them ever assert unrestricted religion action was to prevail or everyone was free to do whatever they pleased in the name of "free exercise." Jefferson and Madison totally opposed any legal establishment of religion tyranny over the minds of men. It was establishment of religion by law which both Jefferson and Madison fought to eliminate in Virginia and in America by forbidding such establishments through specifically drafted prohibitions in civil law, the supreme law of the land being the Constitution. The law which rules America is civil law--law created "by the people" at all levels of legitimate government. The rules or "laws" of world religions are given no recognition in the Constitution and have no legal standing in any court of law within the United States of America.
The attorney Jefferson made it clear: "Man . . . has no natural right in opposition to his social duties." It is opinion which is totally free and unrestricted. Actions are subject to civil government: "the legitimate powers of government reach actions only, & not opinions." The letter in which Jefferson wrote those words was first read by the Attorney General of the United States, Levi Lincoln. Jefferson asked Lincoln to review the wording before sending it to the Baptists. In 1802 the President and the Attorney General of the United States understood actions are subject to the laws of society.
The constitutional commandment is: Congress shall make no law "prohibiting" the free exercise of religion. Not one of the Founding Fathers or members of the First Congress ever wrote that actions in the name of "religion" are immune to the restrictions of civil society. It cannot be disputed the Supreme Court of the United States has clearly ruled actions in the name of religion are restricted by civil law. In Reynolds v. United States (98 U.S. 145, 1879) and Davis v. Beason (133 U.S. 333, 1890) the Court repeated Jefferson's terminology about the legitimate powers of government reaching actions and unanimously ruled polygamy unconstitutional regardless of religion opinion by some Americans.
Unfortunately, in 1998 there are some Americans who do not understand or accept the constitutional principle separating religion and government, including members of the Supreme Court of the United States and of the Congress of the United States, because they do not read and accept the Constitution as it is written. The Religious Freedom Restoration Act (RFRA) is an example. Is religious freedom prohibited and in need of restoration? Absolutely not! Voluntary religion flourishes freely in America with thousands of brand names and millions of devotees--all without aid of government.
Nevertheless, it is opinions which are above the law and totally free, not actions. Religion actions have always been subject to the law. Americans are free to believe whatever they choose in regard to religion, but actions in the name of religion are restricted and abridged by the laws of society. Have you noticed "abridging" applies to the latter four freedoms of the First Amendment, but not to "free exercise"? Do you understand members of the First Congress who carefully worded the First Amendment could have easily used "abridging" in regard to "free exercise," if that is what they meant? In regard to religion, the First Amendment guarantees only that its "free exercise" cannot be prohibited; "abridging" is a different word, a different concept, and was not applied by the First Congress in the "free exercise" clause. The wording of the First Amendment does not say "free exercise" shall not be abridged (reduced); it says "free exercise" shall not be prohibited (completely forbidden). That is a constitutional distinction!
What is deliberately and plainly written cannot be ignored, lest the Free Exercise Clause become a license for anarchy. The religion clauses of the First Amendment were designed to provide harmony in a society composed of many different religion opinions; therefore, in America, opinions are free. Actions are limited by the laws of society.
James Madison discussed the question of religion's "legal rights" (even on "unessential points") in terms of "the necessity of preserving public order": "I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded ag[ain]st by an entire abstinance of the Gov[ernmen]t from interference in any way whatever, beyond the necessity [NECESSITY] of preserving public order, & protecting each sect ag[ain]st trespasses on its legal rights by others" (Writings, 9:487).
Anarchy has never been the rule of law in America. Actions in the name of religion are subject to the rule of law according to the Constitution. Action in the name of religion can be restricted by local, state, or federal legislation in conformity to the Constitution and because of the necessity of preserving public order.
Obviously, RFRA was in violation of the Constitution from its beginning. It was a "law" made by Congress respecting an establishment of "religion." RFRA was an attempt by Congress to establish "religion." The Supreme Court should rule RFRA unconstitutional with a unanimous one sentence opinion: "Congress shall make no law respecting an establishment of religion." The Court should do the same with the proposed Religious Liberty Protection Act (RLPA). As it is written, "no law" means no law.
Copyright 1998, 2003 Gene Garman