Friday, September 26, 2008

Free exercise

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..."
Richard John Neuhaus points out a common misinterpretation of the First Amendment:
... Although lawyers and courts routinely speak of the two religion clauses of the First Amendment, there is but one religion clause. The stipulation is that “Congress shall make no law,” and the rest of the clause consists of participial modifiers explaining what kind of law Congress shall not make. To point out that there is only one clause containing two provisions may seem like a small grammatical point, but it has far-reaching significance.

The no-establishment provision of the religion clause is entirely and without remainder in the service of free exercise. Free exercise is the end; no-establishment is a necessary means to that end. No-establishment simply makes no sense on its own. Why on earth should we need a no-establishment provision? Apart from the federal government’s promise that it will not interfere with religious establishments in the states, the answer is that no-establishment is required to protect the rights of those who might dissent from whatever religion is established.

In other words, no-establishment is required for free exercise. It is, one may suggest, more than a nice play on words that Mr. Jefferson’s bill of 1779 was called the “Bill for Establishing Religious Freedom.” The purpose of the non-establishment of religion is to establish religious freedom. It follows that any interpretation of no-establishment that hinders free exercise is a misinterpretation of no-establishment.

In recent history, especially in the last four decades, the priority of free exercise has been dangerously obscured. Indeed, one must go further. The two parts of the religion clause have been quite thoroughly inverted. One gets the distinct impression from some constitutional scholars and, all too often, from the courts that no-establishment is the end to which free exercise is something of a nuisance....
FIRST THINGS: On the Square » Blog Archive » Turning the First Amendment On Its Head

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