The Free Exercise Clause: A License for Anarchy?
by Gene Garman
Strict constructionists of the Constitution for the United States of America
use the words as written to mean what they say. For example, the object of the
preposition "of" in the Establishment Clause is "religion" not church.
Therefore, the prohibition against Congress relates to laws which would
establish "religion" which includes all the ideas and practices respecting
religion" not just church. In other words, says the strict constructionist, if
the First Congress had meant to restrict the prohibition merely to the
establishment of a church, it would have used those words. The fact is that the
First Amendment limits the authority of Congress and gives it no power
whatsoever over the subject of "religion" and no state would have ratified any
such authority.
How can the intent of the First Congress be unquestionably documented and
verified to be as obvious as a simple distinction between the meaning of the all
inclusive word religion and the limited-in-meaning word church? The answer is
obvious in the words of the Free Exercise Clause. The adverb "thereof" in the
Free Exercise Clause takes its entire meaning from the word to which it refers.
In this case, "thereof" (of it) relates back to "religion" in the Establishment
Clause, and "religion" is the only meaning ever given to "thereof" in the Free
Exercise Clause. It would be absurd, for instance, to distort the meaning of the
word religion into "a state church" because the meaning of the word thereof
would then be limited to an understanding as follows: Congress shall make no law
... prohibiting the free exercise of a state church. Further, as strict
constructionists emphasize, the word church does not appear in either of the
Religion Clauses. It is the broad understanding of "religion" which was meant by
the First Congress because that is the unmodified word it used.
In order to completely understand the intent of the First Congress in respect to
"religion" the emphasis of this essay focuses on the active word of the Free
Exercise Clause: "prohibiting." It is obvious to any open eyed reader of the
First Amendment that the First Congress used a different word in regard to "the
free exercise" of religion than it did to speech, press, assembly, and petition.
If words mean things and if the First Congress chose its words in the Bill of
Rights with care, why did it without question use "abridging" in regard to
speech, press, assembly, and petition; but, in regard to religion, it used
"prohibiting"? The answer is as apparent as the words themselves. The word
abridging has a different meaning than the word prohibiting. The First Congress,
then, meant something different in regard to religion than it did in regard to
speech, press, assembly, and petition.
It is prohibition which is protected by the Free Exercise Clause, not
abridgment. A prohibition is total; an abridgment is merely a restriction or
limitation. The First Congress clearly wrote that speech, press, peaceable
assembly, and petition could not be restricted or limited because that is what
"abridging" means. It clearly wrote that "the free exercise" of religion could
not be totally prohibited. Thus, the thesis of this essay is: the free exercise
of religion cannot be totally prohibited, but it can be abridged. If the
majority in the First Congress had intended to use the word abridging in
reference to religion, it would have; it did not. Failure to understand the
First Amendment in the same terms as did the majority in the First Congress is
to reject the basic strict constructionist principle and to distort the Free
Exercise Clause into a license for anarchy.
If there is any one principle upon which the United States of America is
founded, it is absolute acceptance of the rule of law--the supreme law of the
land being the Constitution for the United States of America as initially
drafted and subsequently amended. There is not one word in the Constitution
which advocates anarchy. The First Amendment is not an exception to the
principle of the rule of law. The Free Exercise Clause does not authorize any
action in the name of religion which is in violation of the laws of the land
which apply to all citizens equally. The only action which can be freely
exercised in regard to religion is activity which complies with the laws of
society as drafted and approved by the majority of the citizens of the United
States of America in accordance with the Constitution. Congress shall make no
law prohibiting the free exercise of religion, but it certainly can--in the name
of law and order--make laws which constitutionally limit the actions of any
citizen.
It is ridiculous to assert that the Free Exercise Clause guarantees all actions
in the name of religion, that it gives some citizens rights which do not apply
to all citizens, or that some citizens can violate laws to which all other
citizens are bound. All effort to advocate and establish religion laws for every
religious idea in existence is to promote chaos. The Religious Freedom
Amendment, the Religious Freedom Restoration Act, and the Religious Liberty
Protection Act are all bad ideas which are totally unnecessary, based upon an
erroneous understanding of the Free Exercise Clause, and definitely
unconstitutional. The only acceptable strict constructionist understanding of
the First Amendment is: Congress shall make no law respecting an establishment
of religion--"Congress shall make no law" means Congress shall make no law. The
First Congress understood the words they used, meant what they wrote, and wrote
what they meant. Leave the First Amendment alone.
In America, every citizen may believe about religion whatever he or she chooses,
but no one has a right to actions in the name of religion which violate the law.
Religion is not the business of government, but religion is not above the law.
The two religion clauses of the First Amendment are not in conflict. Congress
has no constitutional authority to make any law which would, directly or
indirectly, officially establish religion in any way whatsoever. The Free
Exercise Clause does not authorize anarchy.
Copyright 1999 Gene Garman
Reprinted with permission
http://www.sunnetworks.net/~ggarman/anarchy.html
America's Real
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