Take Alarm At The First Experiment On Our Liberties

Originally Published on forbes.com on March 22nd,2012

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Andrew Seidel recently appeared here with a guest post on the unconstitutionality of the “parsonage” exemption, which allows “ministers of the gospel” to exempt some of their compensation from federal incometax if it is designated as a housing allowance. This post is in part a response to my criticism of the Freedom From Religion Foundation as being perhaps a bit overzealous.

This is the second guest post Peter Reilly has invited the Freedom From Religion Foundation to submit. This post will focus on two issues: First, is it necessary to address every little violation of the Constitution? Second, why does FFRF focus on the Establishment Clause more than the Free Exercise Clause? The short answers are (1) that every violation the Establishment Clause, no matter how small, is a violation of the Constitution that creates precedent for further violations and so should be fought; and (2) without freedom from religion, freedom of religion does not exist. I will call upon James Madison, the fourth President of the United States and primary author of both the Constitution and the First Amendment, for assistance in this post. Madison, who would have celebrated his 261st birthday on March 16th, has written extensively on both issues.

Presidential $1 Coin Program coin for James Madison. Obverse. (Photo credit: Wikipedia)

Fight Every Violation

In 1785, the soon-to-be-state of Virginia was embroiled in an ongoing religious controversy. Patrick Henry, the fiery orator who famously demanded liberty or death, introduced a bill imposing a property tax “for the support of Christian teachers.”
James Madison was the greatest opponent of the tax. Madison wrote A Memorial and Remonstrance Against Religious Assessments to build opposition to the bill and was extraordinarily successful (if you have not read the Memorial and Remonstrance you owe it to yourself to do so now).

Madison thought it not only proper to address seemingly insignificant violations, but the duty of each citizen to do so:

“It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.” James Madison, Memorial and Remonstrance against Religious Assessments ¶3.

Unfortunately, there are too few today who remember the lesson, let alone revere it. But FFRF is an organization that operates on this principle. We believe working to enforce the Constitution is a duty and a noble cause. And we believe, as did Madison when fighting against a tax of only “three pence,” that there is no such thing as a de minimis violation of a fundamental right. There is nothing more important than defending the First Amendment.

If we allow one violation, why not others? If we let schools distribute bibles, why not let students pray at graduation, or have a preacher come in and talk to them about God? In that case, why not let the preacher tell children that they’ll go to hell if they don’t believe in Jesus? Why not make prayermandatory or flunk children that don’t accept Jesus as their savior? The violations add up quickly.

The indifference and disregard for “small” violations leads to more, and worse, violations. We are well into a descent down this slippery slope.

Thankfully, a wall was built by the Founders: our government “shall make no law respecting an establishment of religion.” FFRF works to maintain that wall. If we do not enforce the line we have nobody to blame but ourselves when our rights are trampled: Madison fought the “three pence” tax because “Either we must say, that [the Legislature] may control the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into law the Bill under consideration.” Id. at ¶15. Anybody who values the Constitution, the First Amendment, and the freedoms protected therein should be joining FFRF in our cause, not denigrating it.

The Overriding Importance of the Establishment Clause

As Peter has pointed out, the First Amendment guarantees six things: a secular government (the Establishment Clause), the freedom of speech, the freedom of press, the freedom to assemble, the right to petition our government, and prevents the government from “prohibiting the free exercise” of religion (the Free Exercise Clause).
Of the religion clauses, FFRF focuses on the Establishment Clause because freedom of religion cannot exist without freedom from religion. Without the Establishment Clause the Free Exercise Clause is meaningless. The reverse is not true. The government is not omnipotent; it is government of limitedpowers. In the words of Alexander Hamilton, the Constitution gives the executive “no particle of spiritual jurisdiction.”

Government actions involving religion will always violate the rights of conscience of its citizens, but government actions that are secular will rarely do so. The government has the power to pass general laws that incidentally affect religion but it does not have the power, it literally lacks the authority, to instruct it’s citizens in religion.

For instance, the banning of hallucinogenic drugs may impinge the free exercise of some citizens. But when a government calls for all citizens to pray it is abusing the rights of conscience of every citizen because “the Religion [of] every man must be left to the conviction and conscience of every Man.” Id. at ¶1. When the government violates the Establishment Clause it is violating those rights of conscience. This is true even if citizens are not “forced” to participate in a particular religion or religious rite because “[a]n advisory Government is a contradiction in terms. The members of a Government as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities.” James Madison,Detached Memorandum (ca. 1823).

In Pakistan, the theocratic government beheads apostates and jails those who blaspheme Muhammad, for life. Religion is not left to the conviction and conscience of the individual but is a matter of government policy.

No doubt most readers will scoff at a comparison of our government to Pakistan’s. But the comparison is only a matter of degree; our government declares National Days of Prayer, calls it’s citizens to pray, gives “ministers of the gospel” free housing, and weighs in on a whole host of other religious issues. Each government action endorsing or supporting religion “is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance.” Madison, Memorial. at ¶9.

In addition to the overwhelming importance of the Establishment Clause to our rights, there are other reasons for FFRF to focus on it as opposed to the Free Exercise Clause.

First, there are hundreds of other groups that work to protect the free exercise of religion and very few that work to uphold Jefferson’s “wall of separation.” We are members of a small club. Second, people are very willing to cry foul when they feel unable to practice their religion, but those same people are more than happy to use the government to spread their religion. The Catholic Church imposing its beliefs about sex on its employees, regardless of their religion or personal choices, is free exercise run amok. (Are we going to allow Christian Scientists to not cover any employees, will we allow Quakers to stop paying taxes because the money supports wars, or let Mormons restart polygamy? See this article for more.)

Third, our democratic government will, by its very nature, violate the Establishment Clause more often than the Free Exercise Clause. Democracy relies on the will of the majority and the majority of this country is Christian. However, the Constitution was designed to protect the rights of the minority against the tyranny of the majority.

In virtually every case FFRF handles, someone argues that majority should rule, i.e. “a small minority shouldn’t tell all of us not to pray.” I invite those of you who agree with this to imagine that your child goes to school in a predominately Muslim community, and the school board voted to have students pray five times a day to Allah. Or that the mayor of your hypothetical community uses official speeches to praise Islamic values and say that Allah makes the city great. Do you think this is constitutional?

The government has no authority to involve itself in religion. Madison and the Founders were adamant that religion is a personal choice, dedicated to the individual, not to society, and not to the government. True freedom comes only with freedom from religion:　

“[I]f Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. … The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves. Id. at ¶2.

Submission to actions for which our government lacks the authority, no matter how small the violation may seem, is a form of slavery, of abjection. FFRF and its members fight to uphold the Establishment Clause because we value our freedom. We value your freedom. Please consider joining myself, President Madison, and the Freedom From Religion Foundation in our fight to enforce the most important right we have, freedom from religion. A special thanks to President Madison, still fighting the good fight after 261 years.

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Andrew L. Seidel is a Constitutional Consultant with the Freedom From Religion Foundation.  Andrew graduated cum laude from Tulane University with a B.S. in neuroscience and environmental science and magna cum laude from Tulane University Law School.  In May of 2011, Andrew completed his Master of Laws at Denver University Sturm College of Law with a perfect GPA. He has written a book on international human rights law (forthcoming) and joined FFRF in November 2011.

You can follow me on twitter @peterreillycpa.