It's All In The Interpretation

    I chose to write my final paper for American History about the first amendment. This is obvious if you know me at all. I thought it would be an easy topic to write about; it is a subject I feel strongly about and there is plenty of material available. And so it was... too easy. It was only supposed to be a six page paper and there is a plethora of material available, not to mention the superabundance of arguments to be made. Everytime I researched a facet or a tidbit, I came up with more and more material to pontificate about. Keeping it down to scale and deciding what should be focused on and what should be left out was the hardest part. My wife tells me that is what writing is always all about, or at least it is for someone such as myself who tends to overdescribe things. So I'll shut it and post it, with pictures from my visit to Mont Saint-Michel in France.

    The First Amendment guarantees that Congress will neither interfere with the free exercise nor make any laws respecting the establishment of religion. The wording of the Freedom of Religion clauses is perhaps a bit too concise, as its exact interpretation has been a constant source of dispute, even up to the modern day. The arguments surrounding any constitutional interpretation generally center on two talking points. What did the Founding Fathers intend? And given that the US Constitution was meant to be a malleable document subject to change as agreed upon by its constituents, why should it matter exactly what they intended? If the inherent and inalienable rights of modern people have been infringed upon by a devious interpretation of the Constitution, isn’t it our duty to clarify the wording to promote equality under the law? As Thomas Jefferson boldly states in the Declaration of Independence, “…whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.” (US Declaration of Independence)

    On one extreme of the argument about the religious clauses of the First Amendment, certain religious fundamentalists believe that the antiestablishment clause means that government cannot interfere with their own particular religion or church, but believe that they have the right to politically enforce their own individual moral code, or even to enforce religious practices in a public sphere such as school-led prayer. This is because the founders did not explicitly state that the freedom from religion is a part of the constitutional guarantee, and yet on the other extreme this is exactly the way that many people believe it should be interpreted. It doesn’t help their cause that for most of the life of the United States, the former extreme is how the First Amendment was generally understood. It has only been relatively recently that—as a part of the fastest-growing “religious” affiliation in America—non-believers have felt secure enough to begin the conversation without fear of reprisal and with some certainty of being taken seriously. In order to discover whether the founding fathers meant for the religion clauses to imply that we have the right to be free from religiously derived moral legislation, we need to begin by going back to the complex figure of Roger Williams.

    There is a legend in my family that my great-great grandfather took Williams’ surname as our own when he first came to America. He arrived as a stowaway on a ship, and the story goes that when he got here he stole a horse and was promptly caught. Judge Hawkins Hart presided over his case and gave him leniency, choosing not to hang him. My great-grandfather had seen a plaque or a statue bearing the name of Rhode Island’s founder, Roger Williams, so when he was released from jail he changed his name to Hawkins Hart Williams both to honor the man who let him live and in hopes of pinching off some of Williams’ prestige for himself. Despite the shady nature of my family history and our legend—or perhaps due to it—I have thus an inherent fondness for and interest in Roger Williams. He was decidedly ahead of his time regarding the relationship between religion and politics. He was also a brave man as he dared to defy the Puritan authority, risking his reputation, livelihood, and safety in the defense of his beliefs, which included the then heretical notion that Church and State must be completely separate.

    Williams was staunch in that particular conviction, even though he himself was a devout Puritan. Perhaps even because of it. As Williams stated anonymously (fearing retribution) in a tract to British Parliament, “Religion was local, not national; the church was spiritual, not political… when persons are forced to conform to a mode of worship that their ‘hearts embrace not,’ then they have been violated in the very depths of their being.” (Gaustad pp. 86-88) When he came to the Massachusetts Bay Colony, fleeing persecution in England for his religious beliefs along with many other colonists, he found himself ironically at odds with the other Puritans there when he tried discussing his ideas. They exiled him from Massachusetts for challenging their own religious authority, and he survived thanks to Native Americans with whom he was friendly. He went on to found Rhode Island in the hopes that he could put his ideas into practice there.

    At first look, it doesn’t seem as though Williams was promoting freedom from religion so much as the freedom to practice religion without interference from the State; a subtle difference, but one that a religious totalitarian might exploit if not examined too closely. If you happen to be an atheist, an anti-theist, a non-believer, or simply unaffiliated, how else can one interpret such sentiments? If Roger Williams believed that the State had no right to tell him how to worship, what if one decides not to worship at all? Would Williams have then said to the unbeliever: you can worship in any way you choose, so long as you worship? And make it law that one must do so? In taking a stand against interference with the individual’s right to worship as he or she sees fit, it would be absurd to then turn around and tell non-believers that they have to believe in something. Luckily, we don’t need to speculate on this matter too heavily as Williams made his opinion about religious rights quite clear in a letter he wrote to the town of Providence, in which he made an analogy comparing the relationship between church and state to a ship at sea:

    The passengers aboard that ship had full liberty to worship as they pleased, or not to worship at all. ‘Papists, Protestants, Jews, Turks’—whoever—all were free to worship in their own fashion, and none could be compelled to attend anyone else’s worship. But on the other hand, the captain of the ship had his own characteristic liberty too: ‘to command the ship’s course; yea, and also to command that justice, peace, and sobriety be kept and practiced, both among the seamen and all the passengers.’… Citizens had to pay taxes, they had to fulfill their obligations to serve in the militia, they had to obey—but in civil matters only. In religion, their liberty was complete. (Gaustad pp. 104-105)

    Roger Williams may not have been a founding father, but he was certainly an early inspiration with regards to the forming of the US Constitution. In 1689, a few years after Williams’ death, the philosopher John Locke published A Letter Concerning Toleration revealing the influence of Roger Williams. “I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other…care of souls is not committed to the civil magistrate…it appears not that God has ever given any such authority to one man over another as to compel anyone to his religion.” (Locke 1689) Locke was in turn to be a heavy influence upon James Madison and Thomas Jefferson, the two greatest champions that religious liberty in the new world would ever have.

    I wish that I could simply quote Thomas Jefferson’s A Bill for Establishing Religious Freedom in full and be done with it. No argument that I am capable of making is more lucid or concise than that great document. But it shows the heavy influence of Locke in certain key points: “the impious presumption of legislators and rulers…who, being themselves but fallible and uninspired men…hath established and maintained false religions over the greatest part of the world and through all time.” (Jefferson) Williams, Locke, Jefferson and Madison—who championed Jefferson’s Bill until it was finally adopted in Virginia on January 16, 1786—all show a deep distrust that any man on Earth is wise enough to assume authority over another man’s conscience in religious matters. Further, the act of forcing someone to subscribe to the moral cause of another is itself morally wrong: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical: that even forcing him to support [a] teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose moral he would make his pattern.” (Jefferson)

    There are several interesting things in that passage. One is that Jefferson makes it clear that a State Religion—enforced belief—harms not only the non-believer, but the believer as well. This is a fine point that is often lost on those who would impress their religion into law. When a believer is made to practice a set of morals, he has lost the dignity of taking a personal stand on his own merits. “A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.” (Lee v. Weisman 1992)

    Another fascinating point is how Jefferson uses the word ‘disbelieves’: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves.” If only this particular statement had carried over into the US Constitution, many ambiguities and arguments would be resolved. It is of course possible that Jefferson meant ‘disbelieves’ to be an interfaith qualification only, as in the way that someone who is Jewish disbelieves in the divinity of Christ, or a Christian disbelieves that Mohammed was a prophet. However, he made no such distinction between types of disbelief and, being a very careful man, it seems likely that—rather than an oversight—he intended it in every sense of the word. We know that he did indeed have a deep distrust of all religion: “Jefferson was a child of the eighteenth century enlightenment. He emphasized reason and was skeptical of religious dogmas. While he championed personal freedom of conscience and religious belief, Jefferson was suspicious of institutional religion and was fearful that it might have a corrupting influence on the body politic.” (Barron and Dienes pp. 422) After all, a Christian may disbelieve in Allah, Zeus, or Odin, but a non-believer simply goes just one God further. If this particular statement of Jefferson’s had been a clause in the constitution, the very idea of legislating against a group of people who don’t believe in the validity of the legislator’s religiously-derived morals would be a far shorter conversation in this country. In any case, whether it made it into the Constitution or not, we can easily deduce that his intent as a founding father was indeed to allow for the freedom from religion and its edicts.

    One of the most odious ways in which certain religious groups try to force their will on the populace is through devious interpretations of the free exercise clause. Recently, certain corporations—who should never have been given the same rights as the individual, but that is an entirely different subject—have attempted to deny certain rights to their employees by asserting the right of a corporation to coerce its employees into abiding by the morals of the CEO’s religious beliefs. The CEO of Hobby Lobby, David Green, believes that he has the right to deny his employees access to government mandated healthcare in the form of contraceptives, because of his so-called “Biblical Principles:”

    A new government health care mandate says that our family business must provide what I believe are abortion-causing drugs as part of our health insurance. Being Christians, we don't pay for drugs that might cause abortions. Which means that we don't cover emergency contraception, the morning-after pill or the week-after pill. We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the biblical principles on which we have run this company since day one. (Green)

    Forgetting for a moment the fact that the Bible actually says nothing about abortion—not to mention that contraception is not abortion, no matter what you believe—the fact is that the right to freely exercise your religious rights and beliefs does not give you the right to deny those rights to other people because they believe differently.

    It is true that judicial interpretation of the free exercise clause has changed over the course of its lifetime. On the one extreme, judges have ruled that exemptions from civil laws are allowed when they infringe on certain religious practices; allowing certain faiths to utilize otherwise illegal drugs in their religious ceremonies, for example. On the other extreme, they have ruled that only the beliefs and opinions of men are exempt from legal coercion, but not practices that are otherwise unlawful. A case which I find particularly interesting in this regard is from 1878, when a Utah Mormon named Reynolds was charged with violating a federal law prohibiting polygamy. I agree whole-heartedly that civil laws must be adhered to for the good of society whether they go against someone’s religious beliefs or not… when those beliefs might cause harm to society. It would be absurd, for example, to allow an adherent of an ancient Aztec religion to perform a human sacrifice to appease his volcano god. No matter how strenuously his court-appointed lawyer might argue his client’s right to freely exercise his religion, there is simply no chance that any judge would allow this particular religious observance to proceed unchallenged. Cases involving a consensual crime such as polygamy, however, require more deliberation.

    In the case of the Utah Mormon, “Chief Justice Waite… drew a sharp distinction between protected belief/opinion and the conduct of polygamy. Reynolds’ defense that his conduct was protected by the free exercise clause was rejected…‘Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” (Barron and Dienes pp. 505) I completely agree with the judge’s statement in principle, but disagree with his ruling, which was that Reynolds could not use religion as an excuse to break the law against polygamy. This may seem like a subject for another paper, but the law against polygamy is a morality-based law. It harms no one and picks no pockets so long as all parties in the marriage enter into it willingly and with full knowledge of the situation. Informed consent is a value that is too often ignored when writing such laws. I consider it ironic that the judge’s (and the federal law’s) distaste of polygamy is probably informed by the dictates of Judaic religious morality—whether he was aware of it or not—and yet he used civil authority as a shield with which to deny a member of an opposing religion the free expression of his beliefs, based on the prejudices of his own.

    This is getting into tricky territory, which shouldn’t be surprising given that the attempt to understand the First Amendment often leads to such places. As Peter McWilliams so eloquently puts it,

    In listening to the reasons why laws against consensual activities are enacted, or why laws against consensual activities should not be eliminated, one begins to peel away the layers of an onion, and at the core of that onion is almost invariably a religious belief. The progression usually goes something like this:

“It’s not right.”

“Why is it not right?”

“Because it’s not moral.”

“Why is it not moral?”

“Because God says so.”

And this is usually followed by some reference—sometimes specific but usually vague—to the Bible, a sermon, a televangelist, or a story remembered from Sunday School (or was it Cecil B. de Mille?)

    Knowing about that pesky separation of church and state rule… some politicians and commentators do the best they can to cloud the fact that criminalizing consensual activities is a religious issue. (McWilliams pp. 169)

    This is the danger of supposing that the First Amendment does not or should not guarantee freedom from religion. There is nothing intrinsically harmful to society about polygamy, homosexuality or the marriage thereof, personal drug use, prostitution, contraception, stem cell research, etc. and legislating against these activities or the groups that engage in them denies consenting adults the freedoms that the Constitution is meant to guarantee. As I have shown, it seems clear from the writings of Roger Williams and Thomas Jefferson that their intention at least was for the citizens of the United States—ALL of its citizens—to enjoy those freedoms and that the religious clauses of the First Amendment are meant to be interpreted in exactly that way. Furthermore I have also attempted to show that whatever the rest of the founding fathers of the U.S. Constitution intended, it doesn’t change the fact that certain morality based laws—so often derived from religious beliefs—constitute a threat to free expression and whether the words of the First Amendment explicitly declare it or not, it is in the best interests of freedom-loving Americans to make it explicit that the freedom from religion is a self-evident truth, an inherent and inalienable right.

Works Cited

Barron, Jerome A. and C. Thomas Dienes. First Amendment Law, 4th Ed. St. Paul, MN: West Publishing CO., 1993.

Gaustad, Edwin S. Roger Williams: Prophet of Liberty. New York: Oxford University Press, 2001.

Green, David. "Column: Christian companies can't bow to sinful mandate." 09 September 2012. USA Today. http://usatoday30.usatoday.com/news/opinion/forum/story/2012-09-12/hhs-mandate-birth-control-sue-hobby-lobby/57759226/1. 30 April 2013.

Jefferson, Thomas. "A Bill for Establishing Religious Freedom." 1777.

Lee v. Weisman. No. 505 U.S. 577. SUPREME COURT OF THE UNITED STATES. 1992.

Locke, John. "A Letter Concerning Toleration." 1689. http://www.constitution.org/jl/tolerati.htm. 24 April 2013.

McWilliams, Peter. Ain't Nobody's Business If You Do. Los Angeles: Prelude Press, 1993.

Reynolds v. United States. No. 98 U.S. 145. SUPREME COURT OF THE UNITED STATES. 1878.

US Declaration of Independence. 1776.