Saturday, February 25, 2012

Freedom of Religion: What it means and what it doesn't mean

"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 First Amendment of the United States Constitution~

Not for the first time in recent history the First Amendment is playing a front and center position in American politics.  The Republican Presidential candidate field, in its feverish attempts to woo its base, keeps pushing itself further and further to the right and in the process they have moved from crazy to flat out bat shit loony.  In short, the inmates have taken over the asylum!  In a weird kind of way I ALMOST pity the Republican Party for the mess that they have gotten themselves into.  In short, they created a monster in the Tea Party and they have spent years and years feeding the rhetoric and the craziness of the extreme right and now the monster has taken over and is in the driver's seat and the moderates are running for their lives.

One of the favorite mantras of the extreme religious right, as they wage their social warfare, is the freedom of religion.  Anytime a majority of the people disagree with them, they immediately scream that their freedom of religion rights, their "First Amendment" rights, are being violated.  I would like to for a few moments discuss this First Amendment and what it means in its literal and historical context and what it does NOT mean.  I think that it is important to cover this since one of the primary accusations the "persecuted" religious right insist on foisting on the liberals is that they want to "rewrite" the Constitution to fit their "liberal" agenda.  But what if, I know this sounds crazy, but WHAT IF the religious right are the ones that are doing the re writing?  What if the religious right is trying to make the founding fathers out to believe and have "intended" something that simply does not coincide with what the founding fathers believed or practiced?  I know, it sounds silly and preposterous, but, hell...what if?

So first let us look at the actual wording of the First Amendment.

"Congress shall make no law..."

So let us note a couple of things, first, this refers to Congress.  In its most literal interpretation it is referring to the Federal government.  One could make the assumption that it refers to the state and local governments but even that would be adding to the literal interpretation that the religious right is so fond of insisting on.  But let us, for argument's sake, assume that in its original intent the First Amendment was intended to refer to all government at all levels.  That being said, let us understand that it is a restriction that is placed on a specific entity...GOVERNMENT.

So by logical deduction we can conclude that it is NOT referring to me as an individual citizen.  It is NOT referring to me as business owner.  It is NOT referring to me as "king" of my home.  Your First Amendment religious rights does NOT supersede my First Amendment right to freedom of speech.  One of the things I hear frequently is when an atheist has something negative to say about religion, the First Amendment is pulled out like a tattered flag and waved around.

So having covered WHO is restricted by the First Amendment, let us look at WHAT is restricted by the First Amendment.  Congress shall make no law...and that is as far as the religious right wants to take the First Amendment.  Congress shall make no law...prohibiting the the free exercise of religion.  That is how they like to and want to read it...but that is not all of it.  Let us take it from the top.  Congress shall make no law.  This prohibits government from making laws about two specific things that we will get into in a moment.  Let us make this clear though, the prohibition is on making laws.  Not speaking their mind, not stating their opinions, not disagreeing...making laws.  When a Congressman/woman disagrees with the religious right he or she is not violating the First Amendment, they are exercising it, they are exercising their right to freedom of speech. The religious right wants to dominate the national conversation and then hide behind the First Amendment in order to silence everybody that has a differing opinion.  The First Amendment is very specific on what it prohibits, the making of laws.  The First Amendment is very specific on who it prohibits, Congress...or for sake of argument, any level of government.

So...Congress shall make no laws...about what?  you have to be specific here or you take all of Congress' power away.  So you have to make it clear what Congress is prohibited from making laws about.   Now, regardless of what the religious right wants to claim, there are TWO parts to this prohibition on making laws.  Let us look at them individually and for sake of this blog post I will look at the most popular one first, then the least popular one.

The religious right's version of the First Amendment has "..." in the middle, because they do not like the first clause, they only like the second clause.  The religious right's version reads, "Congress shall make no law respecting...religion, or prohibiting the free exercise thereof."  Simply put, with their version, if Congress and the Church disagree then Congress has to sit down like a whipped and corrected child and the church wins. If the Supreme Court disagrees with the church then they are activist judges that are simply trying to usurp the authority and autonomy of the church and trying to impose government rule on them.

So let us look at the second clause, "prohibiting the free exercise thereof (religion)".  What exactly is protected here?  Specifically, the free exercise of religion.  The religious right has expanded this to include a very broad term...conscience.  Let us make something clear, exercising your religion and your self imposed conscience rules are two different things.  By definition and by interpretation.  Exercising your religion simply put means exercising the dogma and rites of your religion.  It does not give you the right to make me exercise your conscience with you.  You want to lose weight?  Fine.  Exercise away.  Don't force me to exercise with you.  You want to perform your rights and believe your dogma, feel free to do so.  But exercising, be it literal, physical, spiritual or figuratively, is a personal thing.  The First Amendment gives you the right to exercise your religion freely, without government intervention not force others around you to exercise it with you.

Currently the contraception debate is raging across the country and the religious right is trying to wave its First Amendment religious rights flag again.  They insist on their broad interpretation of "conscience" in order to insist that a woman's rights to contraception is against their conscience and therefore Congress cannot make a law that violates their conscience.  The insanity and hypocrisy of this argument is so deep that it makes my head hurt!

1) When the Mormons had a religious practice of polygamy, nobody had a problem with Congress (in this case state law, but overall government) making a law.  It was determined that civil law, in this case, over rode, religious First Amendment rights, and nobody put up much of a fight defending them.  In this case one religion's dogma and exercising thereof disagreed with others and the majority had no problem taking away their rights.

2) The exercise of religion and even a "conscience" if you want to take their expanded definition, is personal.  If you don't want to use contraceptives, then don't use them.  If you don't want an abortion, then don't get one.  If you don't want to have sex, then don't have it.  If you want 19 children, then, by all means you crazy #$*& have them!  But do not force your conscience on others, do not force the "free exercise thereof" on others.  The argument is that they are employers and they can limit what their employees do.  Employers do not own their employees.  An employer does not have the right to violate the civil rights of their employees in order to exercise their own religious rights.

As a side note, rights are rights.  You don't get to vote on rights.  That is why they are rights.  Rights exist in and of themselves without any outside authorization or referendum and as such exist regardless of what the majority thinks.  When it comes to such things as referendums on gay rights, the simple logic is astounding: people do not get to vote on the rights of others, they do not get to vote on whether or not it is ok to allow people to have a right.  If marriage is a civil right, then it is a civil right for all, not a select few, and we do not get to vote on whether that right is permitted or allowed regardless of what your fickle and inconsistent religious conscience says.

3) The religious right are fighting to exercise sexism, not their religion or their conscience and I can prove it with two simple arguments.  First, when Congress wanted to argue this bill women did not even have the right to express themselves, defend themselves or even speak.  Second, in Georgia, when women tried to pass a bill limiting men and vasectomies they were accused of "mocking the process".  Wait!! What?? Are you aware that a vasectomy is male contraceptive?  So it is OK to outlaw female contraceptives but not OK to outlaw male contraceptives?  Men have the right to decide on fatherhood but women do not have the right to decide on motherhood.  That my friend is not religion, that is not conscience; that is sexism.

So...Congress shall make no law prohibiting the free exercise of religion...exercise, not conscience.  Why make this distinction?  Because the conscience is a funny thing.  I know people who's conscience does not let them take their children to a movie theater to watch a G rated movie.  I know women whose conscience will not allow them to wear pants or allow their girls to wear anything other than skirts that go down to their ankles.  There is a vast number of people whose conscience will not allow them to miss church on Sunday morning.  At what point do we allow established dogma and "free exercise" take a back seat to a free range of conscience, and then allow that wildly erratic thing called a "conscience" to determine national law and dominate the national conversation.  If the right wants to stick to the Constitution then let them interpret it as strictly as they want others clearly says, "free exercise thereof" it says nothing about conscience...your conscience is your problem...not mine...

Let us now look at the first clause, you know, the clause they want to ignore?  "Congress shall make no law respecting an establishment of religion."

So let us look at a very popular myth that the religious right constantly argues.  It goes like this.  The founding fathers were deeply religious and they were determined to found a CHRISTIAN nation and they were forced to add the Bill of Rights by the pastors and preachers in order to get the Constitution ratified.  The version I was told growing up was that there was a Baptist pastor in Virginia (of course I was raised Baptist) that would not throw his support behind the Constitution unless the Bill of Rights was added.  The argument goes that the good Christian people were afraid that the government would interfere in the church and therefore demanded as the very First Amendment that a limitation was placed to keep government out of the church.  They then go on to clarify that it is intended to keep the government out of the church, not the church out of the government.  There are, however, a couple of problems with this myth.

1) The founding fathers were not intent on creating a Christian nation, they were intent on creating a FREE nation.  The religious right consistently want to emphasize that this is a Christian nation and therefore their rights as Christians come first because that is, obviously (to them), what the founding fathers intended. The only problem is that the very founding fathers disagree with them.
Treaty of Tripoli (1796), Article 11

The Treaty of Tripoli, which obviously is expired, but was signed by John Adams, the second President of the United States of America but was ratified by Congress and was drawn up under the Administration of the "Father of our Nation", George Washington, the first President of the United States.  The Treaty of Tripoli, while no longer law, does, however, express an interesting view of our Founding Fathers:

"As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Musselmen; and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries." [bold text, mine]

This is just one of many examples that I will not bore you with but expressly clarifies that it would be news to the Founding Fathers to hear the religious right describe their efforts to found a Christian nation.

2) The literal interpretation of the establishment clause keeps church out of the government, the free exercise clause keeps the government out of the church, so it is a two way street.  If you look at the exact wording of the clause in question its literal interpretation is quite different from what the religious right's contortionist attempt to morph its meaning to match their cause.  Congress shall make no law respecting an establishment of religion.  Literally, Congress (or government in general if you want to expand "Congress" to mean what the religious right wants it to mean) cannot make any laws respecting (in regards to) the establishment of religion.  There is to be no laws that show preference to any religion since that would establish that religion as the "preferred" religion of the nation.  No religion is to be given a higher status than another religion. This is not a Christian nation because that would be a direct violation of this clause.  To establish that this is a Christian nation is to establish the Christian religion over all other religions, it is to give it a deferential status over all others which is exactly what the founding fathers wanted to avoid.  IF this were a Christian nation then it would be acceptable to block a Muslim mosque from being built near ground zero.  IF this were a Christian nation then it would be acceptable to pass local ordinances to prevent a Mosque from being built in a Nashville neighborhood.  IF this were a Christian nation then it would be acceptable to enforce "Christian conscience" on the citizens of this nation, whether they are Christian or not.  But this is not a Christian nation, and Christians do not get preferential treatment, and Christians do not get to dictate their religious "conscience" to the rest of the nation.

3) The historical context of the Constitution would indicate that the founding fathers feared the church as much as they feared the government.  Their intent was to keep the two from joining together to oppress the American people.  In it's historical context you had the Church of England and you had the Catholic Church that in Europe and England were such a dominating force because the governments of the different nations had established religions giving them the power to persecute and force others to agree with them or pay the consequences.  A simple lesson from history and even current world events is that every time religion is given the power to do so it will, inevitably and without exception, persecute those that disagree with it.  The founding fathers did not write the First Amendment to protect the church, they wrote it to protect the people from the combination of government and religion.

In conclusion, I want to make two very important statements:

First, rights does not equal protection from consequences.  The First Amendment also says that Congress cannot make laws "abridging the freedom of speech, or of the press."  We have the right to express ourselves and to speak our minds.  But Freedom of Speech does not equal, protection from the consequences.  I remember when the Atlanta Braves relief pitcher, John Rocker, went through his career meltdown.  He was in NYC and he made some very racist hate filled comments.  Those comments were his right to make under the Freedom of Speech.  But there were dire consequence to those remarks he made, consequences that ultimately ruined his career.  His freedom of speech did not protect him from the consequences of the comments he made, try as he might to get protection from the First Amendment.

You have the right to freedom of religion.  Your right is protected...from Congress.  Congress shall make no law.  It says nothing about how the rest of us feel about your religion or the hate filled, self righteous, conceited, sexist, homophobic comments you make, or dogma you may teach.  You have the right to believe, the rest of us have the right to say you are an idiot.  It is simple as that.  The First Amendment does not protect you from disagreement, disparagement or disassociation.  It simply protects you from Congress making laws.  If you insist on your hate and self righteous piety you will eventually find yourself to be irrelevant and that would be the consequences of you overbearingly exercising your rights and trying to cram it down the rest of our throats.

Second, theocracy is theocracy, regardless of who the divinity is.  If theocracy is wrong in Muslim countries, then it is wrong here.  The Holy Book, regardless if it is the Holy Bible or the Koran; the title of the religious figures, be it Iman or Pastor or Priest; the name of the place of worship, be it Mosque, Church, Cathedral or Synagogue, does not change the facts.  Our Founding Fathers knew this, they recognized this and they acted upon this.  This is not your nation only, we who do not agree with you are not second class citizens to be dictated by your conscience, especially since you guys can't even agree on what your conscience says.  This is our nation too, and this is one nation united by a Constitution that gives us all equal rights, not united under your God that gives you privileged rights.


Opinionated Gifts said...

Preach it brutha!

Eric Fowler said...

I have this same argument frequently and you are correct. There is no absolute guarantee of freedom of religion or speech in the Constitution. Only the government is prohibited against restricting religion or speech. Those provisions do not extend to the private sector.


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