Religious Freedom: A Freedom that is not Fully Established - Term Paper Example

?Running Head: US CONSTITUTION AND FREEDOM Religious Freedom Religious Freedom: A Freedom that is not Fully Established Religious Freedom: A Freedom that Is not Fully Established Introduction There is a great number of problems with the original amendments to the Constitution because they are often written in a way that s a lot of space for interpretation. The First Amendment provides freedom of religion as far as most of people have interpreted the law. This does not inherently mean that people may practice any religion that they desire in any manner that suits them. The government cannot prohibit the free exercise of religion, although actions by the Supreme Court have generated controversy over that right. This freedom has been one of the cornerstone beliefs in the expression of freedom and rights of citizens within the nation; it is not expressly given that religion may be practiced in any way desired within the territory of the United States. The practice of religion has been forbidden in the United States within the framework of some of the forms that have been considered as those which are against the common good. The practices that are restricted are often dangerous or against social policy and are founded on basic principles of human interaction that define American society. Although it has been considered a basic right, the right to worship has not been liberally given in the First Amendment and a protection against governmental interference has not clearly established. The First Amendment provides a few basic conditions through which the government and the people have created a relationship in which the freedom to believe, express, and exist within the nation is guaranteed through certain rights that provide for security from persecution for those expressions or beliefs. In relationship to religion, the First Amendment provides conditions in which the government cannot establish a religion for the people and cannot prevent them from believing what they might choose. Religion is based upon the individual’s right to believe and not on sanctioned beliefs from the government. The Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof” (Find Law, 2012). Two distinct rights are established in this sentence. The first expression that is made in this sentence is called the Establishment Clause. This clause states that “Congress shall make no law respecting the establishment of religion” (Find Law, 2012). This clearly states that the government will not define belief for the people. One of the primary problems in the European context in relationship to this issue is that every state had an established religion that put those who did not practice it at peril for laws against their beliefs and also making them vulnerable to prejudice. When the United States was established many of its people had come to the ‘New World’ in order to practice their beliefs in peace. This was particularly important to those who had embraced Protestantism as the Catholic Church remained both a political and religious power in Europe. According to Bardes, Shelley, and Schmidt (2009), Thomas Jefferson stated that the Establishment Clause was intended to create “a wall of separation between church and state” (p. 111). This statement, however, has been misinterpreted as law and has often been linked to the relationship between the state and religion. The Establishment Clause The separation of church and state is a long held tradition that is not necessarily supported by law. Hamburger (2004) makes the argument that there is no specific law that has established this separation and this premise is based on the letter that Jefferson wrote in 1802, in which he stated “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make ‘no law respecting an establishment of religion or prohibiting the free exercise thereof’ thus building a wall of separation of church and state” (p. 1). This statement has resonated behind the First Amendment, but is not specifically guaranteed under the law. The case of Everson v Board of Education of Ewing in 1947 established modern concepts of ‘separation of church and state’ as Justice Black defined this separation though a decision that established that the state could not violate the meaning of the Establishment Clause through their own laws that might controvert it (Russo, 2008). Further in 1948 the case of McCollum vs. Board of Education Justice established that religion should not be a part of the curriculum in public schools. In Engel vs. Vitale in 1962, the problem of state created prayer in school was put to an end (Russo, 2008). The early and mid-20th century belief was established in a strong separation between church and state by the legal system, even if there is no expressed separation. This belief began to waiver, however, as calls around the country for in school prayer began to put into question the separation of church and state. The distinction between the common belief in what the First Amendment meant and what it actually said was being put to the test in relationship to fundamental Christians who believed that because the First Amendment had not specifically declared this distinction then it was not what had been intended (Schultz, 2002). The claim often made is that the founding fathers intended for this to be a Christian state and that they had never intended to divorce religion, specifically the Christian religion, from the functions of government. Despite Jefferson clearly establishing this intention in his letter, the claim is still that the founding fathers intended for this to be a Christian nation. In his dissent during Wallace vs. Jaffree in 1984, Justice Rehnquist denied the established pattern of separation of church and state suggesting that “it should not be read to preclude the government from promoting religion. Instead, he has contended that the Establishment Clause permits the government to favor religion as long as it avoids discrimination among competing sects (Bradley, 2006, p. 55). In relationship to funding schools with religious bias, Justice Rehnquist has framed the discussion in five ways. First, the Establishment Clause provides for religious equality which means not only equality between different types of religion, but also between what is religious and what is irreligion. The second aspect is that religious voluntarism, which is defined as choices about religions behaviors, should be free from compulsion or influence by the government. Third, the clause demands respect to the identity of those who are religious by not promoting values that dissenters may not share. The fourth aspect is that society should be inclusive where religion is concerned. And the final aspect is that organizations that are religious should have their autonomy protected which means that separation of church and state in an institutional sense should be accepted (Bradley, 2006). Free Exercise Clause The Free Exercise Clause is the portion of the sentence that states that Congress will not “prohibit the free exercise thereof” of religion. This was a somewhat dangerous clause to include within the Constitution, and has been defied regularly by the court in order to support what the courts consider the common good. An example of this is the choice to handle snakes as a sign of faith. In the Appalachian mountains where American lifestyle seems remote to the practices of people who have their own version of language and beliefs, there is a movement of serpent handling that supports the idea that faith in God can be revealed by handling poisonous snakes without being bitten. A recollection of snake handling from a 1914 newspaper article revealed that snake handling occurred as the congregation had begun to see moments of speaking in tongues, the religious fervor gaining momentum that brought them to a state in which they picked up a rattlesnake and handled it without the fear of it striking them (Kimbrough, 2002). Because of the incidents of five deaths as a result of snake handling, the Tennessee legislature passed a law that stated “it is unlawful for any person or persons to display, exhibit, handle or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person” (Kimbrough, 2002, p. 126). The law had penalties of fines that were from $50 and $150 or jail sentence for six months. The law was vehemently denied by a leader of the snake handling movement, George Hensley, who was killed when he was bitten by a large diamondback rattle snake after having handled it for more than fifteen minutes without incident. As he began to put it back into the container, it turned and struck which made his arm where he had been bitten swelling up and turning black as he began to vomit blood. Hensley considered it God’s will that he die from that bite and interestingly, the state of Florida where this took place called it a suicide (Kimbrough, 2002). Snake handling is not the only example of courts denying different religious sects the practice of their beliefs when it came in conflict with what was the good of the state. Polygamy, a practice in which one man has multiple wives, is against the law. Writer Dorothy Alfred Soloman (2004) chronicles her life as the daughter of a polygamous family by stating that she is the 24th child of 48, born to her father’s fourth wife. In a story that chronicles her life, she relates the experiences of living with her mother and her mother’s sister wives and the head of the house which was her father. She speaks in pride, in shame, and of the peaceful nature of her life in comparison to that of some of the more militant polygamists who ruled with a rod. Polygamy is illegal; the court took the stand that it was against the standards of society. Bakken (2000) writes that “the court adopted a belief-action doctrine holding that government was without Constitutional authority to punish people for their beliefs, but had full authority to regulate religious actions as long as it had a rational basis for doing so” (p. 292). Mormonism had become a target and the rest of the United States targeted the people of the religion in order to serve their beliefs in the legitimacy of their belief system. The result was the Edmonds Anti-polygamy Act of 1882. The Edmonds Anti-Polygamy Act of 1882, which followed the Morrill Ant-bigamy Act which had banned plural marriage in the United States, took a harder line and among other things banned polygamists from voting, serving on a jury, or serving in a political office. The pressure of this act was such that there was a ‘revelation’ in the church in 1886 by John Taylor that plural marriage practices would continue without regard to the law but by 1890 this was reversed and plural marriage officially came to an end in church. Despite this reversal of belief, the Act of Polygamy has continued to be in force in laws of Utah against cohabitation in 1935, which elevated it to a felony act. In 1955 the state revoked parental rights from polygamists. In 2003, however, the Supreme Court decriminalized sex between consenting adults in Lawrence vs. Texas, which effectively created a safe haven for those practicing polygamy. The true problem with polygamy resides now within the context of young age of wives (Jacobson & Burton, 2011). Young girls, sometimes as young as twelve, are taken as wives by men in outcast communities of Mormons, thus, continuing the persecution of the religion through the belief that law overrides religious freedoms when it addresses the common good. The plight of Mormons is an example of the hypocrisy that sometimes accompanies the good that was intended by the Constitution. The ideologies of the founding fathers was based upon the belief that no one should be persecuted for belief or the expression of belief and the First Amendment provided for protections against being persecuted in this manner. Despite many of the problems that have come from having a Constitutional right to religious practice, the protection that this provides has also been the foundation of many ways in which religious communities have been protected from persecution. The example of the Mormon Church is one that defies that commonly held belief system according to which people should be free to worship. Those in the Mormon Church became targets because their beliefs were so outrageous to mainstream Christians that they could not accept them in their society. Belief systems are both comforting and dangerous as they create perceptions of the world that may not fall in line with mainstream society. Persecuting those who follow certain customs and practices in relationship to their belief systems has occurred despite the general protection under the First Amendment. In the case of snake handlers, the protection of life is seen to outweigh the need of the handlers to express their beliefs. In this same vein, practices of human sacrifice, of child endangerment through the exposure to what is considered dangerous beliefs, and the practice of family configurations that defy the common belief systems have all been subject to action through law. In the case of Gluckstern vs. Gluckstern in 1956 the belief system of Christian Scientists came into question as they refused to go to doctors. The health and well-being of a child was in question in relationship to seeing a Western medicine and it was established that children must be allowed the benefits of Western medicine in defiance of the beliefs of that religious sect. Children are regularly protected against the decisions their parents might otherwise make in relationship to their health and well-being (Eilers, 2003). One must question, then, exactly what freedoms are given through the First Amendment where the free practice of religion is concerned. The reason that this right has been so dramatically challenged is that people, as a community, regularly reject that which seems foreign or strange. In the case of Mormonism and polygamy practices, it is clear that prejudice has had a place in dampening polygamist practices. Working with Mormons to establish minimum age for marriage might have served the greater good better than making the practice of polygamy a resource for creating outlaw communities. Working within the law provides for more control than disenfranchising a section of society to the point that they have to go into hiding to practice their belief systems. The primary focus of religious denial has been in the interests of children. Primary care-givers are most often in control of religious upbringing, leaving the non-believing parent at the mercy of the actions of the believing parent. Religious protection has been given as needed in relationship to how children are brought up. As an example, in Michigan when the mother of a child practiced Santeria, in which animal sacrifice was a large part of the practice, the judge still awarded full custody to the mother as long as she did not allow her child to be a part of the sacrifices. On the other hand, a child of a mother, who practiced Wicca, was taken from her and given to the father through the use of non-religious factors, such as the cleanliness of her house. Whether or not this was religious persecution is unclear, but this is the claim of the mother as she believed the legitimate excuses for removal of her child was a guise to persecute her because of her beliefs. In Wallis vs. Spencer the children of a woman were taken from her because she was reported to have been Wiccan who would sacrifice a dog in front of her children (Eilers, 2003). Where the interests of children are concerned, the court tends to side with what will be the course of least harm. Importance of Freedom of Religion The right to worship freely was given by the founding fathers without modification in relationship to beliefs that might come in conflict with what is held as the common good. Thus, without any structure through which to filter persecution, dangerous and what mainstream society considers immoral have rarely been defined separately, the danger of what might be considered an immoral act inciting responses that are just as, if not more so, definitive in making an act unlawful. Although the concept of polygamy is foreign in Christian practices, it has been liberally practiced throughout history. The Mormon practice of polygamy, without the idea of child marriage attached, is benign and does not promote social dangers. Yet, the law has established that it is not allowed. Other religions have sporadic uses of actions that have been persecuted for the nature of their practices and beliefs. Voodoo, Santoria, and Wicca all have followers that use sacrifice as a part of their practice, thus, laws come into being that limit how and where these types of practices can be established. As with many of the ways in which the founding fathers approached different freedoms, it was not taken into consideration the many ways in which they would be tested. At the time of the writing of the Constitution slavery was still in practice, thus many of the laws that existed did not apply to African Americans. There was an assumption that the rights that had been written applied to mainstream belief systems and that they would only apply to those who were part of the free society which was primarily defined by being of European descent and Caucasian. As with many of the freedoms that have been given, the assumption has been tested and proven to be false, the practice of religion given respect through whatever manifestation it came as long as it stayed within what the court would consider reasonable limits. This has allowed the exchange of ideas to become liberal and expansive as Buddhism, Hinduism, Evangelical, and Catholic religions all live in mostly peaceful co-existence. The development of prejudices has inserted problems into the system, but for the most part the system of supporting beliefs of all types has provided a sanctuary where thoughts are not legislated and actions are supported to a degree. Even in a nation of high prejudice, the existence of law that supports religious freedom has for the most part been a stabilizing factor so that it is unlikely that on the basis of religious differences there would ever be a civil war as is seen in so many other nations across the world. Conclusion The right to worship is a fundamental American right that has been challenged in the courts extensively and mostly upheld. Although the courts have frequently put restrictions on practices that are dangerous, for the most part, the right to worship has been supported through law and decisions that provide for the freedom of belief. The intention of the First Amendment was to support the freedoms that had been denied by European forms of governance. The fact that the founding fathers chose to immediately deny the government the role of religious leader from the onset shows that they believed that the trap of governmentally sanctioned religion was an important problem in granting overall freedom. In stating that religious worship was also an important right, it became clear that the originators of the Constitution felt that through these rights the rest of the rights would fall into place within the document. The pursuit of religious freedom has not been a perfect road. While it makes sense to forbid public handling of snakes in order to preserve the welfare of those involved, dictating how family is constructed seems heavy handed and filled with prejudice. Denying practice in order to control other aspects that come from that practice seems a denial of freedom. The example of polygamy shows that denying polygamy is overuse of court direction where the denial of underage marriage would be enough to satisfy the safety of the community. The actions against the Mormon Church were done through an attitude of religious persecution. In reversing their practices the Church showed that it was willing to work within the law in order to exist, but the question is whether or not it should have had to change. Freedom is a work in progress, prejudices and the fear of ‘otherness’ and differences providing for influences that are in conflict with freedom. The United States was built upon ideologies of freedom, but the progress of freedom has been a steady evolution of enlightenment. References Bakken, G. M. (2000). Law in the western United States. Norman: University of Oklahoma Press. Bardes, B. A., Shelley, M. C., & Schmidt, S. W. (2009). American government and politics today: The essentials. Belmont, Calif: Wadsworth. Bradley, C. M. D. (2006). The Rehnquist legacy. Cambridge: Cambridge Univ. Press. Eilers, D. D. (2003). Pagans and the law: Understand your rights. Franklin Lakes, NJ: New Page Books. Find Law. (2012). First Amendment – religion and expression. Retrieved from http://caselaw.lp.findlaw.com/data/constitution/amendment01/#annotations Hamburger, P. (2004). Separation of church and state. Cambridge, MA.: Harvard University Press. Jacobson, C. K., & Burton, L. (2011). Modern polygamy in the United States: Historical, cultural, and legal issues. Oxford: Oxford University Press. Kimbrough, D. L. (2002). Taking up serpents: Snake handlers of eastern Kentucky. Macon, Ga.: Mercer University Press. Russo, C. J. (2008). Encyclopedia of education law. Thousand Oaks, Calif: Sage Publications. Schultz, D. A. (2002). The encyclopedia of American law. New York: Facts on File. Solomon, D. A. (2004). Daughter of the saints: Growing up in polygamy. New York: W.W. Norton & Company. Read More