Freedom of Religion

By Charles Kiker

Freedom of Religion is the first of five topics in the very first amendment to the United States Constitution. It is the first freedom among many.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There are two clauses in this promise: the establishment clause and the free exercise clause. While I do not believe these two clauses are contradictory, they are, I think intentionally, set side by side in tension.

The establishment clause, as it has been interpreted by the Supreme Court time and again, prohibits the state from sponsoring or favoring one religion over another. “Congress shall make no law. . . .” Some have interpreted this to mean that this clause applies only to the federal government, and not to state and local governments. At least one member of the Supreme Court, Clarence Thomas I think, favors this interpretation. According to that interpretation, the federal government cannot establish an official religion, but the states can if they wish. In Mississippi the state religion could be Baptist, the Southern Baptist version of course. And Utah could be officially Mormon, etc. But the 14th amendment, as interpreted by the Supreme Court, provides that the Bill of Rights applies to all citizens of all the states.

The free exercise clause forbids the state (and the states) from prohibiting the free exercise of religion, of any religion, or of no religion. And we really can’t have freedom of religion without freedom not to be religious at all, if that is our choice.

Sometimes in our day-to-day practice the establishment clause and the free exercise clause bump heads. What if I try to freely exercise my religion in such a way that it infringes on someone else’s freedom. Thus the Supreme Court has ruled, rightly in my opinion, that public schools cannot SPONSOR prayer. It becomes state prayer. But what if I want to exercise my faith by praying in school. The courts have ruled that I may pray in school, but that in so doing I may not disrupt the classroom. The school may not allow me to pray in such a way that it infringes upon other students.

Last week a post on Facebook shouted, “PRAYER WAS NEVER BANNED FROM OUR PUBLIC SCHOOLS.” And, as you can imagine, it got a lot of posts pro and con.

Anecdotes galore were cited. One was that that 10 students were expelled from a school somewhere because they were praying in school. Now I don’t know any of the details of that, not even if it really happened. But I can imagine that a group of students could have agreed together to pray out loud if the teacher was teaching something they didn’t like, and thus disrupt the class, and seek to impose their religion on the entire class. If something like that happened, the teacher would be justified in asking them to leave, and the principal/superintendent would be justified in expelling them if they persisted.

Another anecdote claimed two students had been forbidden to wear their rosary beads. Again, I don’t know the circumstances or even the factuality of the anecdote. I do know that the courts have upheld the rights of students to wear clothing that displays their faith. I could wear a t-shirt that says, “Jesus saves.” I should be able to wear a t-shirt that says “Allah Akbar.” There’s a good chance someone might try to forbid that, but if they did, and I took it to court I would win. The courts would probably even allow me to wear a t-shirt that says, “God hates fags,” unless they decided that crossed the boundary into obscenity. (Which I think it does!)

The ACLU—yes, the ACLU—has repeatedly gone to court to insure the rights of children in school to display their faith unobtrusively.

“Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” It takes the Wisdom of Solomon to rightly interpret those clauses in tension. And none of our judges possess that wisdom. But they struggle with it. And I’m glad they do.

A free church in a free state: that’s a great slogan. Let’s strive for it as reality. And let us not cut each other’s throats literally or figuratively when we disagree on exactly how to live it out.

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