Religious liberty and the limits of the First Amendment's free exercise clause

¶ … Religious Liberty as Stated in the First Amendment

Religious Liberty

The practical and legal ramifications of religious liberty are not difficult to determine, for they follow from the theological implications of the concept of religious liberty. The idea of religious truth, such as defined by the North Carolina state government in 1776 which forbade anyone from serving who denied the truth of the Protestant religion, has no place in a country that holds religious liberty as law. Yet, religious liberty has not always been practiced, as North Carolina and Maryland (which was officially declared an Anglican state in 1692) both show. Today, the first amendment has been ratified to make such claims untenable. Nonetheless, many scholars question whether religious liberty itself is defensible. By acknowledging the right of religions to be exercised publicly, the U.S. constitution sets the stage for a massive fight between various and contending religious beliefs, which can readily be seen today. Liberty reduces the objective nature of religion to the level of subjectivity, which makes an objective standard for what religious cults may or may not do difficult to determine. This paper will examine the limits of religious liberty by looking at the various interpretations of the "free exercise" clause of the First Amendment, from a historical, practical, and legal standpoint.

Legalese

When Westboro Baptist Church of Topeka, Kansas decided to protest the homosexuality of fallen Marine Matthew Snyder outside his funeral in 2006, it touched off a media firestorm that eventually saw the case of "free exercise" go all the way to the Supreme Court. The Supreme Court ruling given in response to the protest states that "hurtful speech" is protected by the First Amendment. However, not everyone on the bench agreed with the ruling. Justice Samuel Alito gave the dissenting opinion that the First Amendment does not have to tolerate a "vicious verbal assault" (AP, 2011). But despite Alito's words, the fact remains that the First Amendment does have to tolerate it. This was, after all, not a case of religious tolerance -- it was a case of religious liberty. Tolerance implies that an objective standard exists, and that the State will tolerate, up to a point, behavior that does not measure up to that standard. Liberty implies that there exists no standard whatsoever. If no standard exists, Westboro Baptist has every right to do what it did -- even if others are offended -- which is what the Supreme Court essentially stated. Yet, common sense suggests that something is wrong somewhere. And that something has a lot to do with Westboro Baptist, which is, in a sense, what is at the heart of what makes religious liberty such a problematic right: in fact, the legal system of the U.S. upholds the amendment that allows such a problem to persist, despite its uncomfortable ramifications.

Practicality

Religious liberty not only gives every individual the right to believe as he/she sees fit (regardless of natural law), it also gives every religion the right to declare itself as true. By upholding no religion as true, it virtually upholds all religions as true, and sets the stage for titanic clashes like the one seen in Waco, TX, when the Branch Davidians faced down the FTA in 1993, an incident that resulted in the death of 76 men, women, and children who lived on the Branch Davidian compound. The violent suppression of the sect might never have been necessary had the sect never had the right to form in the first place. But refusing that right would have violated the First Amendment. Thus, the conundrum is written into the Constitution, and interpreting it has become an exercise that mirrors a kind of judgment once reserved for the Holy See.

As far as Waco is concerned, the federal government clearly saw the sect led by David Koresh as a demarcation from religious activity and the beginning of criminal activity (occasioned by the alleged possession of illegal weapons). Obviously, what the federal government stated in 1993 is that when religious liberty threatens national security, its right is denied.

But such an assurance is hardly satisfying, for it leaves unanswered the question of religion itself. If, as Aristotle claims, a government is modeled on the most basic family unit, which in turn consists of individuals who must determine the truth or worth of religion for themselves, why should that truth or worth be limited to the family context and not extend to the fullest national context, ultimately embracing the governing body? Yet, the First Amendment contradicts such an idea by separating Church and State and making religion a personal affair that should (ideally) remain separate from "politics." Is this the case? It is not, as politicians like Sarah Palin make very clear: they see no reason to separate their religious views from their political views. As shocking as it may seem, such reasoning is actually logical -- for in reality there can be no separation between Church and State. Logically speaking, whoever runs the State will run it according to the views (religious or irreligious) from which it draws its perspective. The perspective of America is not one of religious tolerance (upholding one religion as supreme). Its perspective is one of religious liberty (which upholds none, yet often steps in to protect itself against what it deems threatening).

Such a perspective was set in 1683 when the Catholic Governor of New York Thomas Dongan enacted the first law establishing religious liberty in America. As has been stated, it was a perspective which grew out of the Peace of Westphalia. The philosophies that it engendered ranged from that of Immanuel Kant to Jean-Jacques Rousseau to Voltaire and the Marquis de Sade, all of whom took their philosophical underpinnings from the acknowledgement afforded by the Peace of Westphalia that religious liberty was a natural condition of societal concord. What religious liberty actually engendered, however, was the dichotomous nature of the modern era -- the era which would assert that there was no truth, and that that was the truth. Subjectivity would reign and has reigned (philosophically) right into our own time, finding its ultimate expression in the First Amendment of the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." This subjectivity even received the approbation of the very objective Alexis de Tocqueville (1838), who came to America to see first-hand its democratic process:

Upon my arrival in the United States, the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more did I perceive the great political consequences resulting from this state of things, to which I was unaccustomed. In France I had almost always seen the spirit of religion and the spirit of freedom pursuing courses diametrically opposed to each other; but in America I found that they were intimately united, and that they reigned in common over the same country (p. 289).

Upon further investigation of the peaceful union among the several sects as well as the Roman Catholic Church, de Tocqueville found that almost all the priests of his Church attributed the peaceful unity to the separation of Church and State. De Tocqueville was then astonished to find that "American clergy occupy…no public appointments; not one of them is to be met with in the administration, and they are not even represented in the legislative assemblies […making it] the pride of their profession to abstain from politics" (p. 290).

Such a political set up would have been wholeheartedly advocated by Rousseau, and de Tocqueville admits of its benefits. Here, de Tocqueville reveals his influence by Rousseau: he advocates the separation of Church and State and sees it as a favorable condition for all. Church is good for the individual, but, when connected to the affairs of the State, can exert a harmful influence. But how could this be? It is in effect an echo of Rousseau's (2008) statement in The Social Contract:

But I am mistaken in speaking of a Christian republic; the terms are mutually exclusive. Christianity preaches only servitude and dependence. Its spirit is so favorable to tyranny that it always profits such a regime. True Christians are made to be slaves, and they know it and do not mind; this short life counts for too little in their eyes. (p.134)

Therefore, the State adopts a Machiavellian attitude, ascribing its own survival above the common good of its individual subjects -- or rather stating that its own survival is for the common good of its subjects. Such a position echoes not the Separation of Church and State but the precise opposite: it echoes the reign of the Catholic Church over the empires of Europe. Such a position sets the State up as Holy See; yet, weirdly, it is a Holy See that espouses no doctrine but survival. It is peculiarly Darwinian. And it is bizarrely adverse to Aristotelian principles.

To answer the question of whether religious liberty is truly possible one need only look at the current United States of America and ask oneself if violent suppression (as witnessed at Waco), or freedom to harass (as seen by Westboro Baptist), are actions that should be permissible. If one has no notion of objective truth or common good, he is likely to find no flaw in America's system of religious liberty. Yet, the flaw is fundamental, for the system asserts an absurd principle: that truth is ultimately subjective. All proceeding questions are answered by asserting that truth is, on the contrary, objective, and can and ought to be determined not just by individuals but by a State as well, which would in turn uphold a homogenous belief and standard to which its citizens could conform. A degree of toleration would likely be necessary for the common good and to ease societal tension. A religion that becomes violent does not necessarily mean it should be suppressed -- for some, religious belief is something that one should die for. What binds a nation together, however, is the fact of that belief being upheld by the State. A violent religion ought to be judged by its objective merits -- by the criteria with which one would judge any philosophical tenet to be true or false.

However, the U.S. Constitution does not allow for such objectivity. In fact, it destroys it: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." It is the official stance of Congress that it should turn a blind eye to the objective pursuit of truth. Its concern is primarily one of self-preservation.

From such a perspective, religious liberty and the Separation of Church and State become ephemeral ideals of imaginative minds rather than attainable philosophical positions. Objectively speaking religious liberty announces the State's lack of concern for what many families consider a subject of primary concern -- religious observance. If the State cannot apply itself to the rigors of religious observance, the logical extension is that a family should not either. Thus religious liberty leads to the exercise of no religion in particular, which leads one to wonder whether religious liberty, practically speaking, leads in deed to atheism.

Conclusion

In conclusion, the First Amendment guarantees that the State shall "make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." But what it guarantees, therefore, are the kind of uncomfortable situations which took place in Waco in 1993 and in the protest of Westboro Baptist in 2006. Such a guarantee has its roots in the Peace of Westphalia which splintered the unifying element of Europe (religious politics) into fragments. The Peace afforded a kind of peace; but that peace would prove ephemeral itself in the following centuries, culminating to date in two World Wars, with perhaps another on the horizon. Religious liberty, therefore, is merely political ideology designed to effect the absolute rule and preservation of the State over the religious politics of its subjects. It is, essentially, tyrannical in its ambivalence.

Reference List

Associated Press. (2011). High Court Rules Against Fallen Marine's Father In Funeral

Protest Suit. KWTX. Retrieved from http://www.kwtx.com/home/headlines/High_Court_Rules_Against_Fallen_Marines_Father_In_Funeral_Protest_Suit_117242333.html

De Tocqueville, A. (1838). Democracy in America. (H. Reeve, Trans.). New York,

NY: George Adlard. (Original work published 1835). Retrieved from http://books.google.com/books?id=DUAvAAAAYAAJ&printsec=frontcover#

Elliot, J. (2009). Spain, Europe and the Wider World: 1500-1800. Yale University

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Rousseau, J. (2008). The Social Contract. (G. DH Cole, Trans.). New York, NY:

Cosimo. (Original work published 1762).