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Rescuing the First Amendment

Stock Photo of the Consitution of the United States and Feather Quill

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment, U.S. Constitution.

The First Amendment is the cornerstone of our constitutional liberties. It has been on my mind recently when I read two initially unrelated stories, but the more I thought about it, I began to see a connection.

The first story came from a column written by Peggy Noonan called “What We Lose If We Give Up Privacy” In her article she quotes Nat Hentoff, a noted journalist who has been covering civil liberties issues for many years. A link to her article is found here.

One of Mr. Hentoff’s points was the interconnection between the First Amendment and the rest of the Bill of Rights. As an example, he cited a question he once gave to Supreme Court Justice William Brennan. When asked which amendment from the Constitution was the most important, Justice Brennan answered the First Amendment. Justice Brennan said, “…If you don’t have free speech you have to be afraid, you lack a vital part of what it is to be a human being who is free to be who you want to be.”

The second story came from the New Mexico Supreme Court. The case involved a business called Elane Photography.

Elane Photography is a small business run by a husband and wife, who happened to be Christians, who believed in the sanctity of marriage. A couple of years ago, Elane Photography was charged with violating the New Mexico Human Rights Statute, when they refused to accept an offer to photograph a gay couple’s wedding. The New Mexico Human Rights Commission held that they were in violation.

Elane Photography appealed to the New Mexico Supreme Court. The New Mexico Supreme Court ruled that Elane Photography discriminated against the couple and that their religious beliefs were insignificant.

In a concurring opinion, a justice wrote:

…The Huguenins are free to think, to say, to believe, as they wish; they may even pray to the same God of their choice and follow those commandments in their personal lives wherever they lead…But there is a price, one that we all have to pay somewhere in our civic life…it is the price of citizenship.

A copy of the decision is found here.

Justice Brennan is partially correct- the First Amendment is the cornerstone of our freedoms. But, Justice Brennan failed to recognize that the First Amendment recognizes something deeper than just free speech, a free press, the freedom to practice your faith, and the freedom to assemble and associate with whomever.

What Justice Brennan and the New Mexico Supreme Court have failed to recognize is that the First Amendment deals with, to borrow a term from Os Guinness, the freedom of conscience. The freedom of conscience recognizes that the federal or the state government does not have the right to judge my beliefs no matter how counter that belief runs against conventional wisdom.

For instance, the U.S. Supreme Court in the case of West Virginia Board of Education v. Barnette, ruled that a statute requiring the Pledge of Allegiance to be compulsory for all students without accommodating religious beliefs was unconstitutional because the statute persecuted Jehovah Witnesses whose religious beliefs instructed them not to take an oath. The interesting fact about this case is that it was decided in 1943 during the height of World War II. In its decision, the court made the following comment, “…If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein…”

Recently, we have seen this shift where government officials are beginning to dictate what is orthodox and what is heresy. This past year in the Colorado Senate, State Senator Pat Steadman, responding to concerns about religious liberty to his Human Rights bill, stated:

We have laws against discrimination. Discrimination is banned in employment, and housing, and public accommodations, and so bakeries that serve the public aren’t supposed to look down their noses at one particular class of persons and say ‘we don’t sell cakes to you.’ It’s troubling, this discrimination. And it’s already illegal. So, what to say to those who claim that religion requires them to discriminate? I’ll tell you what I’d say: ‘Get thee to a nunnery!’ And live there then. Go live a monastic life away from modern society, away from people you can’t see as equals to yourself. Away from the stream of commerce where you may have to serve them or employ them or rent banquet halls to them. Go some place and be as judgmental as you like. Go inside your church, establish separate water fountains in there if you want, but don’t claim that free exercise of religion requires the state of Colorado to establish separate water fountains for her citizens. That’s not what we’re doing here.

The link to his speech on the floor of the Colorado Senate is found here.

Besides his sheer ignorance of discrimination laws, where religious institutions are given some latitude in employment discrimination laws because of their religious nature, state senator Steadman’s attitude are similar to thoughts being held by men like Nero when persecuting Christians and Bull Connor when thinking about Dr. Martin Luther King, Jr. and his march for civil rights.

The problem is that there has been a shift in some circles to limit freedom of religion to freedom of worship. There is a difference. Freedom of religion recognizes that faith dictates our conscience. Faith guides us on we are to treat people. It instructs us that we will be accountable to God for not only the way we treat people, but how we use the talents we have been given. It is what motivated the abolitionist movement against slavery in the 1800’s. It is why churches were the first to start hospitals or why a Chick Fil-A closes its stores on Sundays.

On the other hand, freedom of worship focuses only on the ability of one to attend church and worship. It recognizes that religion has a place, but religious doctrine must bow to the state orthodoxy. You can see that thinking in the New Mexico Supreme Court and with Mr. Steadman. You can also see it with the Health Human Services’ initial regulation calling for all business to provide contraception in their insurance policy. See here.

Such thinking cripples our ability to be free. The moment that the government dictates to us what is orthodox in our beliefs, what will keep them to dictate from the other spheres of our lives? It is in these times that we need to rescue our First Amendment.

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