Saturday, October 17, 2009

Suppose Courts Expand the Free Exercise Clause?

The Establishment Clause of the First Amendment is the subject of many posts in this blog. It is one of two religion clauses in the Bill of Rights. Those two clauses say:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

Looking at the first half of that (which is informally called the Establishment Clause), a judge in 1947 in the Everson Decision said:

"The establishment of religion clause of the First Amendment means at least this: neither a state nor the federal government can set up a church [no argument here]; neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. No tax in any amount, large or small, can be levied to support any religious activities or institutions whatever they may be called or whatever form they may adopt to teach or practice religion. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

Many, including me, believe he read way more into the document than actually exists. The ACLU, in celebrating this decision, said it "gave new meaning" to the Establishment Clause." New meaning? Is that what courts are looking for?

Suppose just for fun that the courts expanded the Free Exercise clause the same way. That would mean that no laws could be passed that restrict a church in any way. So if your religion says you can have multiple spouses, the government may not interfere. Want to sacrifice a steer on the front lawn of your church? No problem. Want to have your chapel bells ringing 24 hours a day for the 12 days of Christmas? Noise ordinances shall not apply here.

Doesn't that seem fair?

No comments: