Bill of Rights Billboard

Free Exercise of Religion

By: Marcus Smith

In the first Bill of Rights Billboard we discussed the first clause found in the First Amendment which says: "Congress shall make no law respecting an establishment of religion". In that Billboard we learned that this clause does not prohibit all levels of government from extablishing a state-supported religion, rather it only prohibits the Federal (or national government) from establishing a church that would trump the churches established by the states (for most of the states at the time of the founding of our country already had a state-supported religions (that is, supported by money)).

In this months Billboard we will discuss the second clause found in the first Aamendment: "or prohibiting the free exercise thereof." This clause is called the Free Exercise clause. So, this far we have learned about the "Establishment Clause" and now the "Free Exercise Clause." It is important to remember these brief phrases by the terms "Establishment" and "Free Exercise." In newspapers, television reports, scholarly books and articles such phrases in the Bill of Rights are referred to by these terms.

The Free Exercise Clause is different than the Establishment Clause. Remember, the Establishment Clause was meant to be protection afforded to state governments and not individual citizens. However, the Free Exercise Clause was meant to be a protection afforded to all persons. That is, whether you were Buddhists, Muslim, or Christian, you could exercixe your religious beliefs and not be tougched by the government. We are a people with a religious history deeply seeded into free exercise of religion. Protestants came over from the old world precisely because of the corrupting religiouis influence coming forth at the behest of the Catholic church and Church of England. (Although, Americans didn't show the same respect to immigrating Catholic's from the old world and in some colonies protestants treated Catholics with essentially the same disrespect that protestants received in the old world.) Nonetheless, by the time of the founding Americans had come to a political consensus that such disrespects were not acceptable. So it's simple. "Congress shall make no law..prohbiting the free exercise" of religion.

But its also not so simple. Let me give an example. Lets say that there is a religion in North Carolina that practices human sacrifice (I only use North Carolina because that is where we well be moving in order for me to attend law school). Now lets say that Congress passes a low that says "there shall be no human scrifices." Would it be unconstitutional for Congress pas this Law? After all, the Free Exercise Clause say that Congress shall pass no law...prohibiting the free exercise of religion. And if it is part of this North Carolinian religion to sacrifice humans and Crongress has made a law prohibiting such exercies to take place then appears as if congress has violated the First Amendment, doesn't it? Of this Akhil Amar wrote that "general laws designed to serve secular purposes...would be a very different matter, if, in operation, they had the effect of impairing some particular groups relilgious practices." So in the case above we could easily see that Congress would have a reasonable secular purpose, that of prohibiting the murder of innocent (or guilty) persons by a sacrificial killing. And if this law is applied to all persons in society, that is applied "generally" to all people, then this human sacrifice law would be in violation with the free exercise of religion clause. It's when Congress passes a law on a specific religion or even all religions; or passes a law for religious purposes, that it violates the free exercise clause. When it is passing laws to the public in general, with only secular purposes, and that law happens to prohibit a religion from exercising a specific belief (like smoking marijuana) then Congreess has not violated the first amendment and they will be upheld by the courts in passng such a law.

By: Marcus Smith

Any typing errors are to be charged to Wendell Haws Eyring Jr.