Federal Govt-1000 words essay

FREEDOM OF RELIGION

Limiting Congress to protect both church and state, and the individual’s right to believe

The First Amendment reads, “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.” These are the “democratic freedoms,” the liberties that the founders believed to be so necessary to ensuring a free and unfettered people that they crammed them all into the very first of the amendments. For all that, none of these liberties has escaped controversy, and none has been interpreted by the Supreme Court to be absolute or unlimited.

Why Is Religious Freedom Valuable?

The briefest look around the world tells us what happens when politics and religion are allowed to mix. When it comes to conflicts over religion, over our fundamental beliefs about the world and the way life should be lived, the stakes are enormous. Passions run deep, and compromise is difficult. In the United States, where a majority of people are religious, religious battles tend to take place in the courts, under the guidelines set out by the First Amendment.

Although not all the founders endorsed religious freedom for everyone, some of them, notably Thomas Jefferson and James Madison, cherished the notion of a universal freedom of conscience—the right of all individuals to believe as they pleased. Jefferson wrote that the First Amendment built “a wall of separation between church and State.” 14  The founders based their view of religious freedom on two main arguments. First, history has shown, from the Holy Roman Empire to the Church of England, that when church and state are linked, all individual freedoms are in jeopardy. After all, if government is merely the arm of God, what power of government cannot be justified? Furthermore, religion can divide society into the factions that Madison saw as the primary threat to republican government and individual liberty. A second argument for practicing religious freedom is based on the effect that politics can have on religious concerns. Early champions of a separation between politics and religion worried that the spiritual purity and sanctity of religion would be ruined if it was mixed with the worldly realm of politics, with its emphasis on power and influence. 15

The Establishment Clause

The beginning of the First Amendment, forbidding Congress to make laws that would establish an official religion, is known as the  establishment clause . Americans have fought over the meaning of the establishment clause almost since its inception. Although founders like Jefferson and Madison were clear on their position that church and state should be separate realms, other early Americans were not.

establishment clause the First Amendment guarantee that the government will not create and support an official state church

A similar division continues today between the  separationists , who believe that a “wall” should exist between church and state, and the nonpreferentialists, or  accommodationists , who contend that the state should not be separate from religion but rather should accommodate it, without showing a preference for one religion over another. Accommodationists argue that the First Amendment should not prevent government aid to religious groups, prayer in school or in public ceremonies, public aid to parochial schools, the posting of religious documents such as the Ten Commandments in public places, or the teaching of the Bible’s story of creation along with evolution in public schools. Adherents of this position claim that a rigid interpretation of separation of church and state amounts to intolerance of their religious rights or, in the words of Supreme Court Justice Anthony Kennedy, to “unjustified hostility to religion.” 16  Presidents Ronald Reagan, George H. W. Bush, and George W. Bush, and many other Republicans, have shared this view, as have many powerful interest groups such as the Christian Coalition.

separationists supporters of a “wall of separation” between church and state

accommodationists supporters of government nonpreferential accommodation of religion

A lot is clearly at stake in the battle between the separationists and the accommodationists. On one side of the dispute is the separationists’ image of a society in which the rights of all citizens, including minorities, receive equal protection under the law. In this society, religions abound, but they remain private, not matters for public action or support. Very different is the view of the accommodationists, which emphasizes the sharing of community values, determined by the majority and built into the fabric of society and political life.

Today U.S. practice stands somewhere between these two views. Sessions of Congress open with prayers, for instance, but a schoolchild’s day does not. Although religion is not kept completely out of our public lives, the Court has generally leaned toward a separationist stance. 17

As the more conservative appointments of Republican presidents Richard Nixon and Reagan began to shape the Court, the Court’s rulings moved in a more accommodationist direction. In Lemon v. Kurtzman (1971), the Court added to the old test a third provision that a law not foster “an excessive government entanglement with religion.” 18  Under the new  Lemon  test , the justices had to decide how much entanglement there was between politics and religion, leaving much to their own discretion.

Lemon test the three-pronged rule used by the courts to determine whether the establishment clause is violated

As the current rule in deciding establishment cases, the Lemon test is not used consistently, primarily because the justices have not settled among themselves the underlying issue of whether religion and politics should be separate, or whether state support of religion is permissible. 19  The justices still lean in a separationist direction, but their rulings occasionally nod at accommodationism. Meanwhile, many states have taken matters into their own hands by blurring the line, allowing students to give “inspirational” messages at school events, for instance, or allowing schools to offer Bible classes or to teach evolution as a controversy rather than settled science. 20  These practices and laws are the new battlefield over religious establishment, and the Court will no doubt be called on to weigh in before long.

The Free Exercise Clause

Another fundamental question about religious freedom that divides the public and justices alike is what to do when religious beliefs and practices conflict with state goals. The second part of the First Amendment grant of religious freedom guarantees that Congress shall make no law prohibiting the free exercise of religion. The  free exercise clause , as it is called, has generated as much controversy as the establishment clause. When is the state justified in regulating religion? Although Americans have an absolute right to believe whatever they want, their freedom to act is subject to government regulation (see Snapshot of America: What Do We Believe?). 21  The state’s  police power  allows it to regulate behavior in order to protect its citizens and to provide social order and security. These two valued goods of religious freedom and social order are bound to conflict, and the Court has had an uneasy time trying to draw the line between them. Although it waffled a bit before doing so, the Court has said that schoolchildren cannot be required to salute the American flag if it violates their religious principles to do so (as it does for Jehovah’s Witnesses). 22

free exercise clause the First Amendment guarantee that citizens may freely engage in the religious activities of their choice

police power the ability of the government to protect its citizens and maintain social order

The Court has gone back and forth on other religious freedom issues as it has struggled to define what actions the state might legitimately seek to regulate. For a while the Court held that any incidental burden placed on religious freedom must be justified by a  compelling state interest , that is, the state must show that it is absolutely necessary for some fundamental state purpose that religious freedom be limited. 23  How the Court determines what is and what is not a compelling state interest is examined in  Chapter 5 .

compelling state interest a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently

The Court rejected this compelling state interest test, however, in Employment Division, Department of Human Resources v. Smith (1990), when it held that if the infringement on religion is not intentional but is rather the by-product of a general law prohibiting socially harmful conduct, applied equally to all religions, then it is not unconstitutional.24 The Court found that the compelling state interest test, while necessary for cases dealing with matters of race and free speech, was inappropriate for religious freedom issues. Under the Smith ruling, a number of religious practices have been declared illegal by state laws on the grounds that the laws do not unfairly burden any particular religion.

Religious groups consider the Smith ruling a major blow to religious freedom because it places the burden of proof on the individual or church to show that its religious practices should not be punished, rather than on the state to show that the interference with religious practice is absolutely necessary. In response to the Smith decision, Congress in 1993 passed the Religious Freedom Restoration Act (RFRA). This act, supported by a coalition of ninety religious groups, restored the compelling state interest test for state action limiting religious practice and required that when the state did restrict religious practice, it be carried out in the least burdensome way. However, in the 1997 case of City of Boerne v. Flores, the Court held that the RFRA was an unconstitutional exercise of congressional power.25 Congress amended the act in 2003 to apply only to the federal government, and in 2006 the Supreme Court affirmed the amended federal RFRA when it ruled that the act protected a New Mexico church’s use of tea containing an illegal substance for sacramental purposes, reinstating the compelling state interest test.26

Supporters of greater freedom for religious institutions were heartened greatly in 2012, when the Supreme Court issued a unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which the New York Times called perhaps “its most significant religious liberty decision in two decades.”27 In Hosanna-Tabor, the Court held that the hiring practices of religious groups could not be regulated by federal employment law (in this case, law that prohibited discrimination against an employee with a disability), because that would essentially give government the right to tell such groups whom they could hire. Still, the sweeping decision has not stopped critics of the Court’s earlier Boerne ruling from arguing that to protect religious freedom, the Constitution should be amended to make RFRA the law of the land.28

Concern over religious freedom among church members grew after the full implementation of the Patient Protection and Affordable Care Act (ACA) in 2014. The Obama administration interpreted the ACA requirements as meaning that employer-based health insurance should provide birth control coverage, but in 2012 the Supreme Court ruled, in Burwell v. Hobby Lobby, that corporations that are not publicly traded (so-called closely held corporations) did not have to provide such coverage if it violated the owners’ religious beliefs. This case not only upheld the right of employers not to provide contraception coverage if it conflicted with the employer’s religious beliefs but also affirmed that right for some kinds of corporations as well as for individuals.

Meanwhile, when the federal law appeared to be in jeopardy, many states passed their own RFRAs to protect religious practices at the state level, and they have been used to protect a variety of controversial practices on religious grounds, including the denial of services and rights to those in the LGBTQ community. Such laws proliferated again in 2015 and 2016 in the wake of the Supreme Court’s ruling that constitutionalized marriage equality. States such as Indiana, Mississippi, and North Carolina suffered serious blowback from companies that considered the intent of such laws to be discriminatory and chose to take their business elsewhere. (We will read more about this in Chapter 5.)

In Your Own Words

Describe how the First Amendment protects both church and state, as well as individuals’ religious freedom.

FREEDOM OF EXPRESSION

Checking government by protecting speech and the press

Among the most cherished of American values is the right to free speech. The First Amendment reads that “Congress shall make no law . . . abridging the freedoms of speech, or of the press” and, at least theoretically, most Americans agree.29 When it comes to actually practicing free speech, however, our national record is less impressive. In fact, time and again, Congress has made laws abridging  freedom of expression , often with the enthusiastic support of much of the American public. As a nation we have never had a great deal of difficulty restricting speech we don’t like, admire, or respect. The challenge of the First Amendment is to protect the speech we despise.

freedom of expression the right of the people to free speech

Why Is Freedom of Expression Valuable?

It is easier to appreciate what is at stake in the battles over when and what kind of speech should be protected if we think about just why we value free speech so much in the first place. Freedom of speech can help to empower citizens and limit government in four ways:

· Free speech is important because citizens are responsible for participating in their government’s decisions and they need information provided by an independent,  free press  to protect them from government manipulation. Mediated citizenship gives us many more channels through which to access information, but that means many more channels to monitor for truth and reliability. In an age in which the president of the United States feels free to label unflattering or critical news coverage “fake news,” the imperative to maintain a free press is more critical than ever.

· Free speech can limit government corruption. By being free to voice criticism of government, to investigate its actions, and to debate its decisions, both citizens and journalists are able to exercise an additional check on government that supplements our valued principle of checks and balances.

· Denying free speech sets a dangerous precedent. Censorship in a democracy usually allows the voice of the majority to prevail. One of the reasons to support minority rights as well as majority rule, however, is that we never know when we may fall into the minority on an issue.

· Free speech ensures the vigorous protection of the truth. According to the nineteenth-century English philosopher John Stuart Mill, by allowing the expression of all speech, we discover truths we had previously believed to be false and we develop strong defenses against known falsehoods like racist and sexist ideas.

free press a press that is able to report fully on government’s activities

If free speech is so valuable, why is it so controversial? Like freedom of religion, free speech requires tolerance of ideas and beliefs other than our own, even ideas and beliefs that we find personally repugnant. Those who are convinced that their views are absolutely and eternally true often see no real reason to practice toleration. Many people believe that, in a democracy, the majority should determine the prevailing views and the minority, having lost the vote, so to speak, should shut up. In addition, conflicting ideas about what constitutes the public interest can lead reasonable people to disagree about whether speech ought to be protected or restricted.30

Speech That Criticizes the Government

Sedition , speech that criticizes the government to incite rebellion, has long been a target of restrictive legislation, and most of the founders were quite content that it should be so. Of course, all of the founders had engaged daily in the practice of criticizing their government when they were inciting their countrymen to revolution against England, so they were well aware of the potential consequences of seditious activity. Now that the shoe was on the other foot and they were the government, many were far less willing to encourage dissent. Especially during wartime, it was felt, criticism of the government undermined authority and destroyed patriotism.

sedition speech that criticizes the government to promote rebellion

Early in our history it was easy enough for those in government to control the information that they felt threatened their power. It didn’t take long for American “revolutionaries” to pass the Alien and Sedition Acts of 1798, which outlawed “any false, scandalous writing against the government of the United States.” Throughout the 1800s and into the next century, all levels of government, with the support and encouragement of public opinion, squashed the views of radical political groups, labor activists, religious sects, and other minorities. By the end of World War I, thirty-two of forty-eight states had laws against sedition, which essentially prohibited the advocacy of the use of violence or force to bring about industrial or political change. In 1917 the U.S. Congress passed the Espionage Act, which made it a crime to “willfully obstruct the recruiting or enlistment service of the United States,” and a 1918 amendment to the act spelled out what that meant. It became a crime to engage in “any disloyal . . . scurrilous, or abusive language about the form of government of the United States, . . . or any language intended to bring the form of government of the United States . . . into contempt, scorn, contumely, or disrepute.”31 Such sweeping prohibitions made it possible to arrest people on the flimsiest of pretexts.

Those arrested and imprisoned under the new sedition laws looked to the Supreme Court to protect their freedom to criticize the government, but they were doomed to disappointment. The Court did not dispute the idea that speech criticizing the government could be punished. The question it dealt with was just how bad the speech had to be before it could be prohibited. The history of freedom of speech cases is a history of the Court devising tests for itself to determine whether certain speech should be protected or could be legitimately outlawed.

In two cases upholding the Espionage Act, Schenck v. United States (1919) and Abrams v. United States (1919), Justice Oliver Wendell Holmes began to articulate what he called the  clear and present danger test .32 This test, as Holmes conceived it, focused on the circumstances under which language was used. If there were no immediately threatening circumstances, the language in question would be protected, and Congress could not regulate it. But Holmes’s views did not represent the Court’s majority opinion, and the clear and present danger test was slow to catch on.