Where freedoms should co-exist

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Such few and simple words, such controversy, as Wednesday’s headlines both local (letters page) and national (latest ruling against the travel ban) would attest.

“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.” — First Amendment to the U.S. Constitution

The First Amendment has two provisions related to religion: The Establishment Clause and the Free Exercise Clause.

The Establishment Clause prohibits the government from “establishing” a religion. What “establishment” means, the courts take case by case. At first, as one Press writer pointed out, it meant prohibiting state-sponsored churches, such as the Church of England and early efforts by new American states to do the same with other denominations.

More recently, what constitutes an “establishment of religion” has been analyzed by the U.S. Supreme Court, generally using a three-part test from a 1971 case called Lemon v. Kurtzman. Under the Lemon test, a government act or law can assist religion only if (1) the primary purpose of the assistance is secular (i.e., not religious), (2) the assistance must neither promote nor inhibit religion (any religion), and (3) there is no excessive entanglement between church and state.

How that plays out varies in each case, sometimes using other tests. Sometimes with clear logic in the result, sometimes with too much ambiguity to be helpful.

That’s the Establishment Clause in a nutshell. The Free Exercise Clause protects citizens’ right to practice their religions (including the right not to practice any religion) as they please, so long as that practice does not run afoul of a “public moral” or a “compelling” governmental interest. What are public morals or compelling interests, again, is defined case by case.

You may have noticed the words “separation of church and state” aren’t in the First Amendment, nor anywhere else in the Constitution. The phrase was coined later by President Jefferson in 1802, when he wrote that the First Amendment’s intention was to build “a wall of separation between Church and State.”

What happens when constitutional rights collide? Consider the Free Exercise Clause and polygamy; the state’s compelling interest in protecting against certain abuses won over a religious right to practice (even in the absence of abuse). It’s always a balancing test, with a moving, rather than a bright, line.

In cases such as Prince v. Massachusetts (1944), the Supreme Court determined that a state could overrule certain parental decisions, for the sake of children’s welfare. The Prince court stated:

“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves... The right to practice religion freely does not include the right to expose the community or the child to communicable disease... ill-health or death.”

Examples include the state forcing vaccination, and life-saving medical treatment — the subject of one Press letter writer — for children whose parents object on religious grounds.

The Prince Court held that the state had an overriding interest in protecting public health and safety; courts have held that a child’s right to life was greater than their parents’ religious rights. However, not all cases of medical treatments withheld on religious grounds go that way. Others, including some cases in which parent and child disagreed over choice of medical treatment, have upheld parents’ rights to determine generally what type of, at least non-emergent, medical intervention they want for their children.

School prayer is another controversial example, and one for which my own experience provides unusual perspective. At my elementary school in Iran in the 1970s, we studied the Quran weekly for half an hour. After returning to the U.S. at a public middle school in Texas, a daily Christian prayer was broadcast by the principal. Frankly, even as a youngster (and without comment by my parents), I found both practices uncomfortable. Coming from a family with at least three different religious views, I couldn’t help but think, “What if everyone doesn’t believe the same thing?”

I wasn’t alone. Deborah Weisman was a Jewish student who successfully sued her Rhode Island public school district over a Christian graduation prayer in 1986. The Supreme Court (with Kenneth Starr appearing for the U.S., arguing against Weisman) held the prayer violated the Establishment Clause, concluding that making a religious act part of the graduation ceremony constituted “a state-sponsored and state-directed religious exercise in a public school.”

“The school’s rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government.”

Consider in reverse how it might feel to be among a Christian minority at a public function, and be expected to participate in another religion’s exercise en masse, different from your own. Official public exercise of one faith is not necessary to affirm its validity for private observance, and refraining from such public exercise does not disparage any faith or personal spiritual belief. Nor does it prevent anyone from private practice of one’s faith.

That’s what the First Amendment’s religious protections are meant to do: Acknowledge that variety of belief, the right to differ, and the right not to feel pressured by a government to go along with a majority.


Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.

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