It was not the intent of the Fourteenth Amendment to modify the meaning of the twin principles of religious freedom set forth in the First Amendment’s religion clauses, to give Congress or the states any power to overrule those principles, or to establish any religious practice as exempt from the laws of society. It was the intent of the Fourteenth Amendment to apply constitutional guarantees of liberty under the law to all citizens and to require the states to conform. There is no historical record which asserts that Congress or the states were given authority through Section 5 of the Fourteenth Amendment to do anything other than enforce civil liberties as guaranteed in the Constitution for the United States of America.
It is absurd to suggest that the Fourteenth Amendment was adopted with the intent to give “a majority in Congress” power to change the principles expressed in the First Amendment’s religion clauses or that the Gitlow (1925), Cantwell (1940), or Everson (1947) decisions--which were unanimous in regard to the doctrine of incorporation as adopted by the Court--authorized any congressional authority to change those principles. Thus, there is no historical evidence in the records of the passage of the Fourteenth Amendment or the above decisions of the Court to support Justice O’Connor’s dissenting position in Boerne V. Flores (1997).
James Madison would have vetoed the Religious Freedom Restoration Act as an unconstitutional act of Congress and would have reasserted the same principles that he set forth in the Baptist and Episcopal vetoes and in his essay “Monopolies”--those documents of history and clearly stated principles of constitutional understanding which Justice O’Connor never mentioned in her limited and selective review of history regarding the proper constitutional relationship between religion and government. Justice O’Connor’s omissions distorted the constitutional position of James Madison: “Congress shall make no law respecting an establishment of religion.” Congress cannot prohibit the exercise of religion, but can restrict it. It was not the purpose of the Religious Freedom Restoration Act to prohibit or restrict religion; the obvious purpose of Congress was to, by a law, establish religion and religious practices--a direct violation of the First Amendment--as exempt from the laws of the land. And, President Thomas Jefferson would have told Congress, "no law shall be made respecting the establishment, or free exercise of religion" (Jefferson, Jan. 23, 1808).
About the Religious Freedom Restoration Act, Madison could have written: “Attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of citizens, tend to enervate [sap the strength of] the laws in general, and to slacken [weaken] the bands of society. If it be difficult to execute any law which is not generally deemed necessary or salutary [beneficial], what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the government, on its general authority?” (From James Madison’s “A Memorial and Remonstrance,” the entire text of which is printed in the book America’s Real Religion.)
Allow me to make it easy for those readers who have not read Justice O’Connor’s dissent as she asks the question as to “whether Congress has exceeded” its Section 5, Fourteenth Amendment, enforcement powers--Justice O’Connor says:
1. “Smith, 494 U.S. 872 (1990), [was] the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided. ...If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, ... it would ... allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty.”
2. “In Smith ... this Court ... interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual’s religious beliefs [illegal drugs], so long as the prohibition is generally applicable [to everyone in America].”
3. “The Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law.”
4. “Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct--regardless whether it was specifically targeted at religion or applied generally--we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest.”
5. “The Court’s rejection of this principle in Smith is supported neither by precedent nor ... by history. The decision [in Smith and Boerne] has harmed religious liberty.”
The above summary of Justice O’Connor’s argument in her dissent, was then followed twelve times by use of the word accommodate. Justice O’Connor is an accommodationist who believes that, regardless of civil law which applies to everyone equally, the United States of America is obligated by the Free Exercise Clause to reasonably accommodate “religious practice”; and, she cites some recent Court opinions which have played loose with Madison’s “constitutional principles” (“Monopolies”).
The problem with and answer to Justice O’Connor’s dissent is what she ignored and misconstrued from the legal and historical record and what limited sources she used in justifying her position:
1. The first Supreme Court case to cite President Thomas Jefferson’s use of his famous “wall of separation between Church & State” was Reynolds v. U.S.(1879) wherein the Court unanimously declared polygamy a violation of civil law regardless of religious opinion. “For altho’ we have freedom of religious opinion by law” (Jefferson, Jul. 30, 1816), not one Justice on the Reynolds Court believed that religious action was above the law or that the free exercise clause guaranteed unrestricted religious action. The Reynolds Court understood the difference between action and “the freedom of religious opinion, and its eternal divorce from the civil authority” (Jefferson, Dec. 8, 1822). This is what the Court in Reynolds said: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices ... because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Justice O’Connor never mentions the Reynolds decision (which is printed in America’s Real Religion) or the unanimous decision of the Court in Davis v. Beason (1890) which deliberately repeated the above quotation.
2. Justice O’Connor asserts that James Madison believed the right to free exercise of religion included “a right to be exempt from certain generally applicable laws.” Justice O’Connor never finds those words in the writings of Madison.
3. Justice O’Connor concludes: “At the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice.” Justice O’Connor never bothers to cite where in the Constitution or Bill of Rights such a guarantee or conclusion is stated.
4. Justice O’Connor interprets James Madison’s principle that “in Matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance” to mean (her words): “To Madison, then, duties to God were superior to duties to civil authorities.” Justice O’Connor never bothers to indicate where in the Constitution or Bill of Rights such a guarantee or conclusion is stated.
Conclusion: The classic work--and the Bible of church-state separationists--regarding the issue of religion and government is Church, State, and Freedom (1967) by the distinguished constitutional attorney Leo Pfeffer whom Justice O'Connor ignored. In the great book The Establishment Clause (1986) by the distinguished constitutional historian Leonard W. Levy is documented history which Justice O’Connor never mentions. As long as Justices of the Supreme Court ignore Madison’s clearly stated constitutional views as he applied (vetoes) and explained (“Monopolies”) them--in writings which Justice O’Connor never mentioned--the decisions of the Court will continue to show lack of consistency because of its failure to understand and accept the meaning of the religion clauses as written: ”religion” means religion and “prohibiting” does not mean restricting. In America, if you do not like the laws you work to change them; but, as President Jefferson wrote to the Danbury Baptists (and as Reynolds and Davis quoted), “man ... has no natural right in opposition to his social duties.” The social contract document which states the rights and duties of Americans is the Constitution; and it, thank God, provides religious action no exemption from civil law. Nevertheless, it is small wonder why Justice O’Connor is confused when even so-called separationist organizations do not understand that the two basic First Amendment religious freedom principles are not in conflict with each other or the rule of law in the United States of America.
Copyright 1997 Gene Garman