The congressional framers of our Bill of Rights did not place our First Amendment rights first. And there is nothing to indicate that the states somehow concluded that the Third Amendment, as it came to them, should be changed to the First Amendment. It is a mere fortuity (see previous blog) that the protections in our First Amendment come first in the supplements to the main body of the Constitution, and no importance should be accorded its placement. The notion that our country’s founders regarded First Amendment protections as the most important because they placed them first in the Bill of Rights is revisionist–dare we say fake–history?

          However, First Amendment rights, or at least most of them, are essential for a free society. Nations do not need all of what is in our Constitution, but it is hard to imagine a country we would consider free that did not have free speech and a free press. We may not think about the ability to assemble as much as speech and press, but people need to be able to come together for many reasons: comradeship, grieving, exchanging ideas, protestation, worship, laughter, dinner, and much, much more. Without a right to assemble peaceably, a society would not be free. And a society is not free if governmental communication only goes one way, from the government to the people. In a free society, the government is the instrument of those it governs. Freedom requires citizens and others to be able to tell the government of perceived problems and need of improvements. Whether we label this the right to petition the government or something else, it is essential.

          But when Education Secretary DeVos and Attorney General Gonzalez were referring to the primacy of the First Amendment (see Monday’s post), they were not drawing attention to speech, press, assembly, and petition rights. Instead, they were stressing the importance of the Free Exercise of religion clause.

          We take the basic right of freely exercising religion for granted. You can go to your chosen house of worship; read the Bible in any of the multitude of versions of it or the Koran or even Dianetics; pray together with others in your home or elsewhere; watch sermons on TV; give money to religious missions; solicit money for religious purposes; and so on.

Nevertheless, there are those who claim that the free exercise of religion is under attack. However, they don’t mean that our right to worship whatever Being we want in the fashion we choose is not secure. Instead, they mean that the free exercise of religion is under attack because they want their behavior to be exempted on religious grounds from the duties placed on the rest of society. For example, even though the law says businesses may not refuse to serve someone because of race, sex, or sexual orientation, a person claims that because serving a gay person violates his religious belief, he should be exempted from the law. An employer maintains that contraception violates his religious beliefs, and therefore although the law mandates that he provide health insurance that covers the costs of contraception, he feels he does not have to. The claim is not that the government has prevented people from being allowed to attend the church they want or study the text they hold sacred or pray in the form they desire. It is the assertion that because of their religious beliefs, they must be allowed to behave differently in society and ignore the laws that the rest of us must obey.

          The advocates for these kinds of free exercise claims seldom mention the First Amendment’s other religion clause, the one that bars the establishment of religion and comes first in the Bill of Rights.

          The founders knew that free societies and representative democracies could have an established religion. At the time the Bill of Rights was proposed by Congress, several states, including those ratifying the First Amendment, had established churches. These establishments were not regarded as inconsistent with a free, representative government. The Constitution’s Section 4 of Article 4 commands, “The United States shall guarantee to every State in this Union a Republican Form of Government. . . .” If established churches were detrimental to that form of government, Congress would have had the duty to disestablish the state churches. They, instead, did not interfere with the established churches. (Even today countries that seem to have at least as much liberty as ours have established churches, including Denmark, Iceland, Scotland, and England.)

          The Establishment Clause is striking because it has a purpose that is different from the rest of the First Amendment, but also because of its broad language. Picking a church to be established nationally would have been divisive—state-aided churches in the south were Anglican and in New England were Congregational—but the Bill of Rights does not just prevent an established church. It bars any establishment of religion, and it does not just prohibit a formal establishment of religion, it goes much further and says there shall be “no law respecting” such an establishment. The founders did not just want to prevent an established church or the establishment of religion; their language indicates that the United States should not even be on a road that could possibly lead to such an establishment. (This divorce from religion was also evident in Article VI of the Constitution, which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Some states did have religious requirements for office-holding that lasted into the nineteenth century. New Hampshire, for example, required state officials to “be of the Protestant religion.”) Therefore, all interpretations of free exercise must consider whether a law respecting the establishment of religion is being made.

          The original notion of the free exercise right—I can worship as I choose–produces no tension or conflict with the Establishment clause. I can join the congregation of my faith; read my desired sacred texts; fill the collection plate of my selected church; label my god by my preferred title; worship more than one god; insist that women should be segregated from men during a service; maintain that divorce, homosexuality, contraception, and looking at the behinds of the opposite sex are sins. None of this raises an issue of the government moving towards the establishment of religion.

          However, the modern claim of free exercise that says a law cannot force a person to behave contrary to religious principles is different. If a person is exempt from following the law others must obey because of religious beliefs, then that person is put in a favored spot over the non-religious or those with a different religion. Does creating this privileged position based on religion violate the injunction that there can be no law respecting the establishment of religion?

          If your answer is no, consider this possibility: Assume a law requires employers to provide insurance to employees when ten people are employed. Assume that Sam, the owner, believes in something akin to Christian Science and that healing comes only through prayers without medical intervention. He maintains that it would violate his free exercise of religion to provide the legally mandated health insurance. Of course, if he is exempted from that general law, not only do his employees not get the coverage, Sam gets a financial advantage over other businesses, and perhaps competitors might think about joining Sam’s church.

          I am not pretending that I know how those claims should be decided, but in examining them, we should realize that many of the free exercise claims bring a tension with the Establishment Clause.