THE FIRST AMENDMENT: AN ESSAY ON
FREEDOM OF BELIEF
In March 2001 when the Taliban’s
destruction of the giant, historic Buddhas in Bamiyan province came to the world’s
attention, among the many who value respect for diversity and history, a
collective repulsion was felt. The Taliban Government rationalized this act of
state power based on their interpretation of Islam. In their perception, the Buddhas were idolatrous and violated Islamic law. In Jerusalem, the city of peace, the land on
the Temple Mount, upon which sits the Dome of the Rock, is sacred to three
monotheistic religions: Judaism, Christianity, and Islam; this convergence of
symbolic expression serves as a distressing example of how a sacred place can
be a source of political conflict. Now
after the recent atrocities on our own soil, the constitutional principles
which create an environment of toleration for religious differences can be seen
as even more
fundamental to a harmonious society and individual freedom.
The definition of
God and religious truth have long been philosophical subjects that have
found a way into political disputes. One non-theological reason for this is
that religious values can form the essence of self-identity. The
interrelationship between diverse systems of belief and political organization
is the challenge in governing a heterogeneous society. History is replete with
examples of new or competing ideas being censored as a threat to the status
quo. For example, Benedict de Spinoza was excommunicated from his religious community
in the 1600s for departing from an anthropological view of God. In his “Ethica Ordine Geometrica
Demonstrata” (“Universal Ethics Demonstrated
Geometrically”), he developed the pantheistic view that everything that exists
is God and that God can best be described as a divine, universal energy form.
E
pluribus unum, which means, “out of many, one,” is
both a reference to the thirteen colonies being united into one nation, as well
as a recognition that the nation was composed of
citizens of different ethnic and religious origins. The First Amendment to the
United States Constitution acts as a civilizing principle in the pursuit of
democracy and freedom of belief in a pluralistic society. The First Amendment
language 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.”
The
great American jurist, Oliver Wendell Holmes, recognized the ultimate value of
the principles found in the First Amendment when he wrote:
“When
men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundation of their conduct that
the ultimate good desired is better reached by free trade in ideas, that the
best test of truth is the power of the thought to get itself accepted in the
competition of the market.”
Achieving a
harmonious synthesis of freedom and diversity of beliefs may be a laudable goal
for humanity, when achieved. However, a state of common mind may always be
elusive. By definition, a synthesis of ideas will inherently be at variance
during an evolutionary progression of concepts. Thus, a government which
embraces the right of the individuals to assert ideas must be able also to
manage and tolerate dissent and conflict. The struggle between dissenting
viewpoints and prevailing authorities is a tension in a democratic society.
John Stuart Mill, addressed the tension of competing
religious ideas in his essay, “On Liberty”, in which he wrote:
“It
is accordingly on this battlefield, almost solely, that
the rights of the individual against society have been asserted on broad
grounds of principle, and the claim of society to exercise authority over
dissentients openly controverted. The great writers
to whom the world owes what religious liberty it possesses, have mostly
asserted freedom of conscience as an indefeasible right, and denied absolutely
that a human being is accountable to others for his religious belief. Yet so
natural to mankind is intolerance in whatever they really care about, that
religious freedom has hardly anywhere been practically realized, except where
religious indifference, which dislikes to have its peace disturbed by
theological quarrels, has added its weight to the scale. In the minds of almost all
religious persons, even in the most tolerant countries, the duty of toleration
is admitted with tacit reserves.”
Why
must a Government strive for neutrality in its relation to religion? The First Amendment clauses work together to restrict the
Government from using its power to endorse a belief system or from passing laws
that target a religious practice. The purpose is to prevent compelled
religious views, prevent religious tyranny by the majority, and allow for
individual belief systems to flourish. Supreme Court Justice Harry A. Blackmun wrote:
“When
the government puts its imprimatur on a particular religion it conveys a
message of exclusion to all those who do not adhere to the favored beliefs. A
government cannot be premised on the belief that all persons are created equal
when it asserts that God prefers some.” Lee v. Weisman, 505 U.S.
577(1992)
As
our nation undergoes the re-examination of the role of civil rights in an open
society within a context of needing to detect activities of groups whose
beliefs are both inimical and destructive to an open society, the principles elucidating the
Constitution can provide a framework.
This essay will address the first two clauses of the First Amendment,
the Establishment Clause and the Free Exercise Clause.
The Free Exercise Clause
The
right to free exercise of religion is not an absolute, for if everything were
permitted, there would be anarchy. The case law makes a distinction between
thought and action; all actions, whether based in religious belief or not, have
consequences which society can regulate. In Employment Division v. Smith,
494 U.S. 872 (1990), members of the Native American Church ingested peyote in
order to induce hallucinations as part of religious ritual. The U.S. Supreme
Court ruled that the Free Exercise Clause cannot exempt one from narcotics laws
and ruled that no religious actions may violate general laws, but that laws
aimed specifically at religions or a particular religious practice would be
held unconstitutional. As members of a society, individuals do not cede their
right of free reason and judgment, but in order to preserve peace, individuals
must submit to the control of authority over their actions. When religious acts
break the law, the Government has a right to preserve public order.
In
the case of United States v. Ballard, 322 U.S. 78 (1944), the Supreme
Court ruled that persons issuing religious teachings could not be prosecuted
for criminal fraud. Guy W. Ballard, in accordance with his theories, and by
reason of his high spiritual attainments and righteous conduct, had been
selected as a divine messenger, through which the words of the “ascended
masters” would be communicated to mankind under the teachings known as the “I
Am” movement. The beliefs of one person may seem unbelievable to another, but
religious liberty demands Government toleration of unconventional views.
The Establishment Clause
The
Supreme Court decisions interpreting the Establishment Clause are often
criticized as unpredictable. The Establishment Clause comes into play when a
Government act or expenditure is seen as an endorsement of a particular
religion. Government-sponsored nativity displays are a frequent flash point of
emotion. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court ruled that
a Government-owned nativity scene displayed on private land did not endorse a
religion and therefore did not violate the Establishment Clause. In Allegheny
County v. ACLU, 492 U.S. 573 (1989), the Court ruled that a nativity scene
displayed inside a Government building violates the Establishment Clause. The
logical inference to differentiate these cases is that a display on Government
property creates the impression of endorsement.
Christmas
is both a time of a religious holiday as well as a time for family gathering
and gift giving. Because Christmas is a Christian
celebration, one may ask, why is a religious holiday a Federal holiday? Does
this violate the Establishment Clause? A ‘citizen-grinch’
sued the Government seeking to declare 5 USC 6103, the statute which declares
ten public holidays, one of which is Christmas, a violation of the
Establishment Clause. In this case, Ganulin
v. U.S. , 71 F.Supp.2d 824 (1999) the plaintiff filed a lawsuit asking that
the Federal government be required to stop declaring December 25 a holiday. He
argued that Christmas is a religious holiday and the Congress is not
constitutionally permitted to endorse or aid any religion, purposefully or
otherwise, or promote entanglement between the Government and religious
beliefs. In dismissing the suit, Judge Dlott decided
“that Christmas can be observed as a federal holiday because non-Christians
also mark the holiday by celebrating the arrival of Santa Claus.” Since
nonreligious people also observe the holiday, giving federal workers a day off
for Christmas does not elevate one religion over another. The Government is
acknowledging the secular and cultural aspects of Christmas by declaring
Christmas to be a legal public holiday. In sum, a Government practice need not
be exclusively secular to survive. Judge Dlott
poetically opined:
“The
court will address plaintiff’s seasonal confusion erroneously believing
Christmas merely a religious intrusion Whatever the reason constitutional or
other Christmas is not an act of Big
Brother! The court will uphold seemingly
contradictory causes
decreeing “The Establishment” and “Santa” both worthwhile Claus(es).”
Education and Libraries
Not
only does the First Amendment, in both the Free Expression Clause and the
Establishment Clause, incorporate by implication the virtue of tolerance for
diverse viewpoints, but also the idea that tolerance, as a value in and of
itself, can act as a unifying force.
Tolerance for others minimizes the effect of differences between people
in interpersonal relations, which encourages civility. Tolerance as a virtue
runs into a predicament when parents are concerned with their children’s
exposure to information in a public forum or in a Government-supported forum
such as a school or a library. Parents are responsible for the upbringing of
children and part of that entails instilling values. Modern culture bombards
society with images, sensational information, controversies as well as facts,
opinions and art. This ‘information soup’ is a part of Holmes’ marketplace of
ideas. Information technology makes it almost impossible for parents to isolate
children from the views to which they do not want their children exposed. One
family’s values may conflict with another’s values. Parents seek to protect
children from what the parents deem as inaccurate, inappropriate or offensive
information and parents may seek to influence what information is available to
children. In this situation, what is the role of the state? The First Amendment
limits what the Government can do, both in terms of endorsing a belief as well
as limiting access to information.
The
courts and Congress have played a role in the protection of the First Amendment
rights of children. Because religious values can form the essence of
self-identity, and because children are deemed impressionable, the rights of
parents to protect their growing children’s value systems are respected by the
courts as are the rights of children to access information and express
themselves. The rights of minors to form groups, express beliefs, and have
access to reading materials have been upheld by the courts.
The
tension between school boards, parents and student groups is a crossroad of
controversy. In 1943, the Supreme Court ruled that Jehovah’s Witnesses’
children could not be expelled for refusing to salute the flag in public
schools. The Court stated:
“The
Witnesses are an unincorporated body teaching that the obligation imposed by
law of God is superior to that of laws enacted by temporal government. Their
religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and
5, which says: ‘Thou shalt not make unto thee any
graven image, or any likeness of anything that is in heaven above, or that is
in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.’ They
consider that the flag is an ‘image’ within this command.”
Justice
Jackson reasoned, “the State may require teaching by
instruction and study of all in our history and in the structure and
organization of our government, including the guaranties of civil liberty which
tend to inspire patriotism and love of country. Here, however, we are dealing
with a compulsion of students to declare a belief. Authority here is to be
controlled by public opinion, not public opinion by authority.” West Virginia v. Barnette, 319 US
624 (1943).
In
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969),
junior high students were suspended for wearing black armbands to school in
protest of the Vietnam War. The court affirmed the right of the children to
wear armbands as a right of symbolic expression and quoted the Barnette case: “That they are educating the young for
citizenship is reason for scrupulous protection of Constitutional freedoms of
the individual, if we are not to strangle the free mind at its source and teach
youth to discount important principles of our government as mere platitudes.”
Congress
passed the Equal Access Act in 1984 to cover clubs in public secondary schools.
A club can not be excluded from use of school facilities because the club has a
religious purpose. Each club must have equal access to meeting spaces, the
public announcement system, school periodicals, and bulletin board space.
Officials can require all clubs to follow a set of rules, including
non-discrimination policies. In the case of Rosenberger v. Rectors of the
University of Virginia, 515 US 819 (1995), the U.S. Supreme Court
invalidated a policy which denied funds to a Christian student newspaper on
both Free Exercise and Establishment Clause grounds. The Court found that once
a public university chooses to fund some student viewpoints, it may not choose
which viewpoints to fund. Democratic political participation invites all ideas
and values; since religious values will necessarily intertwine with ideology,
religious values must have equal access to the public forum.
Families
entrust public schools with the education of their children, but condition
their trust on the understanding that the classroom will not purposely be used
to advance religious views that may conflict with the private beliefs of the
student and his or her family. In the case of Edwards v. Aquillard,
482 US 578 (1987), Louisiana’s Creationism Act forbade the teaching of the
theory of evolution in public elementary and secondary schools unless
accompanied by instruction in the theory of creation science. The Act did not
require the teaching of either theory unless the other was taught. It defined
the theories as scientific evidence for creation or evolution. The U.S. Supreme
Court invalidated the Creationism Act because the Act’s primary purpose was to
change the public school science curriculum to provide a persuasive advantage
to a particular religious doctrine (creation science) that rejected the factual
basis of evolution in its entirety. Thus, the Act was designed either to
promote the theory of creation science, which embodied a particular religious
tenet or to prohibit the teaching of a scientific theory disfavored by certain
religious sects. Justice Scalia, in dissent, chided
the majority for censoring a belief system and equated the theory of evolution
to secular humanism, which is a court-acknowledged belief system. He stated:
“The
censorship of creation science has at least two harmful effects. First, it
deprives students of knowledge of one of the two scientific explanations for
the origin of life and leads them to believe that evolution is proven fact;
thus, their education suffers and they are wrongly taught that science has
proven their religious beliefs false. Second, it violates the Establishment
Clause. The United States Supreme Court has held that secular humanism is a
religion. Thus, by censoring creation
science and instructing students that evolution is fact, public school teachers
are now advancing religion in violation of the Establishment Clause.”
The
contents of public school libraries have engendered many lawsuits. Educational
information can be part of a curriculum through text or lecture or available in
a public school library. The removal of books from a library is subject to
court scrutiny if the restriction on a minor’s access to materials is motivated
by discrimination
against a viewpoint. In the U.S. Supreme
Court case of Board of Education v.Pico, 457
US 853 (1982), the Court ruled that school officials may not remove books from
school libraries because they disagree with the ideas contained in the books.
The case began when a parent group submitted a list of books to the school
board and asked to have the books removed. The Board of Education agreed with
the parent group, and the Board argued in court that the Board must be allowed
unfettered discretion to “transmit community values” through the schools. The
Court disagreed with this position and reasoned that access to ideas makes it
possible for citizens generally to exercise their rights of free speech and
press in a meaningful manner, and that such access prepares students for active
and effective participation in the pluralistic, often contentious society in
which they will soon be adult members.
In
a similar case, Minarcini v. Strongsville
City School District, 541 F.2d 577 (1976), the Strongsville City Board of
Education rejected the faculty recommendations to purchase Joseph Heller’s Catch-22
and Kurt Vonnegut’s God Bless You, Mr. Rosewater and ordered the removal
of Vonnegut’s Cat’s Cradle from the library. The U.S. Court of Appeals
for the Sixth Circuit made a distinction between the right of the school board
to be selective in attaining a book and the limitations on a school board to
remove a book once a book is in the library. The Court ruled against the
removal of books, citing the rights of the students to receive information.
Justice Brennan declared in another school board case, “Local school boards may
not remove books from school library shelves simply because they dislike the
ideas contained in those books and seek by their removal to prescribe what
shall be orthodox in politics, nationalism, religion or other matters of
opinion.”
A
provision of the Federal Communications Decency Act (CDA) of 1996 sought to make
it a crime to put indecent adult-oriented material on the Internet where a
child may find it. In Reno v. ACLU, 117 S.Ct.
2329 (1997), the U.S. Supreme Court ruled parts of the CDA to be
unconstitutional as too vague and trampling on the free-speech rights of
adults. The rationale of the Court was that the interest in encouraging freedom
of expression in a democratic society outweighs any theoretical, but unproven,
benefit of censorship. The message that parents should take away from this
decision is that it is the parents’ responsibility to develop children’s values
and that the Government can not dictate content or appropriate beliefs; and,
parents can not rely on the media or libraries to make moral decisions for
individuals. Individuals decide what ideas are right and wrong and individuals
must be free to express a belief. Government can regulate actions and conduct
but must strive to be neutral in regulating contents of an expression of
belief. This neutrality toward the expression of viewpoints is the key aspect
of toleration.
The
U.S. Constitution and its principles stand as a beacon of encouragement for
mankind. On December 10, 1948 the General Assembly of the United Nations
adopted and proclaimed the Universal Declaration of Human Rights, which is
comparable to the Free Exercise clause. Article 18 proclaims:
“Everyone
has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or
belief in teaching, practice, worship and observance.”
The right to free thought, though not yet
experienced by all, is a natural right essential to the human condition.
Tolerance of different ideas is a virtue which results in increased mutual
understanding of others and the flourishing of new ideas. The rule of law ensures this diversity in
belief systems and the existence of a society where people can have a life
which is civilized and free.
Back