What are the approaches to interpreting the establishment and free exercise clauses, and how should the Constitution work to protect religious liberty?
The First Amendment protects Americans religious liberties through two clauses that reinforce each other and work in tandem to help in the guaranteeing, protection and safeguarding of the rights and liberties of the citizens of the United States. These are the exercise clause, which work in tandem with the establishment clause. Based on the Free Exercise clause, both the federal and state government cannot impose sanctions on freedom of religion.
This clause was introduced with the intent of securing the individual’s religious liberty by prohibiting any form of civil invasion and denial of individual right and liberty to profess, ascribe to or associate with any religious grouping or faith. The clause protects against any form of federal or state regulation of religious beliefs. As a result, the government cannot rely on secular programs as a means of restricting freedom of religion, or even to discriminate between religions. The Free Exercise clause hinges on the freedom of conscience. It affirms that there are no legal grounds upon which the government can discriminate or penalize again a person or group of persons based on their religious inclination, and neither does the government has a legal right to force an individual to subscribe to certain beliefs.
The interpretation of this clause is however complicated when we consider that exercising religious freedom does not take the form of mere beliefs rather it involves rituals and practices that constitute conduct. This has led to several inconsistencies in the protection of conduct as free exercise by the courts. Majority of the courts are of the view that the Free Exercise Clause does not have a legal basis that enables it to restrict the government from compelling certain acts or forbidding individuals from doing others acts merely because the act is motivated by religious belief. The courts have only consented that there are some religiously motivated conduct that enjoy protection from generally applicable prohibitions. Scholars and the courts alike have been trying to understand the level to which which the Free Exercise Clause affords protection to religious beliefs and practices.
The relationship between the Free Exercise Clause and the Establishment Clause depends on how expansively the two clauses are interpreted. According to Schultz, although the Establishment Clause is one of the clauses meant to address the role that religion plays in the US society, there has been a raging controversy over its interpretation (241). The difficulty in the interpretation has stemmed both from failure to reach consensus about the Establishment Clause itself and from inherent tensions between the Establishment Clause and the Free Exercise Clause. A general agreement has been that the establishment clause hinders the federal government from establishing an official Church. However, there has been conflicts regarding the level of government involvement in religious matters, the meaning of the establishment of religion, and the word respecting.
From a general perspective, the two clauses prescribe the level to which the government is involvement in or tend to interfere with religion. There is a however a tension between the requirement that the government be neutral as far as religion is concerned as put in the Establishment Clause and the requirement by the Free Exercise Clause that the government should be accommodative to some religious practices. The courts have been working to harmonize the interpretations by ensuring free-exercise mandated accommodations do not amount to the creation of establishment violations. The court has also upheld a decision to the effect that certain legislative accommodations that are not even mandated by the requirements of free exercise. For example, in Hobbie v. Unemployment Appeals Comm’n (1987), the Supreme Court considered the constitutionality of Florida’s denial of employment compensation to Paula Hobbie, a Seventh Day Adventist who lost her job because she was no longer able to work on Saturday (Djupe 202). It was the position of the Court that the state cannot deny employment to Seventh Day Adventists who failed to report to work on Saturday. Moreover, the Court accused the government of attempting to restrict the creation of the Seventh Day Adventist religion. The court defended itself by arguing that the government was mandated to accommodate various religious practices in a manner that is in keeping with the contents of the Establishment Clause.
What are the rationales for safeguarding freedom of speech and why are some forms of speech accorded First Amendment protection and others are not?
Based on the First Amendment to the US constitution, Congress should not be seen to make a law that contravenes either freedom of press, or freedom of speech. With this language, the government has no ability to constrain the speech of citizens. This prohibition on abridgement of the freedom of speech, at the very least, not absolute. There is no outright prohibition of certain types of speech.
The Supreme Court has further acknowledged certain classes of speech that do not enjoy any protection by the First Amendment, and that are likely to be completely prohibited. Examples of classes of speech that do not enjoy protection by the First Amendment include child pornography, obscenity, and speech that constitute what are known as fighting words or true threats.
According to Smith, the framers of the First Amendment were guided by a strong feeling that America’s survival was dependent on the ability of its people to learn and abide by the truth (16). The various contents of freedom of speech are the rights to freedom of press, assembly, speech, the right to petition the government to redress certain grievances, as well as the implied rights of belief and association.
In U.S. v. Stevens, 559 U.S. 460 (2010) the Supreme Court made it clear that it would be unlikely to name new categories to the list of the types of speech that fall outside the First Amendmentpurview, though the Court did not entirely rule out the possibility that such unprotected speech exist. Perhaps there could be certain classes of speech that have remained unprotected historically, but are yet to be specified or deliberated in case law. However, even if this was the case, we do not have any evidence that “depictions of animal cruelty” constitutes these classes of speech. There is a dire need to ensure that in future, such extra categories of speech are duly recognized as a means of opposing the highly manipulable balancing act that the government has embraced, in an attempt to identify these.
The rationale behind the First Amendment on freedom of speech has been subject of debate among advocates and scholars for many years. Some of the prevailing questions are whether free speech is so favored in the United States because of its necessity to the functioning of democracy, or whether it is for instrumental purposes. Many scholars argue that the First Amendment jurisprudence is still a relatively new doctrine which sprang from court quarters in the 1900s. . The Justification of the First Amendment initially took a moral approach based on the notion that there is an intrinsic value to speech that has implication of a proper moral conception of persons. Those who disagree with the moral justification to free speech argue that the First Amendment jurisprudence is instrumental and that free speech is only valued to the extent that it promotes specific goals such as political stability , economic stability, and personal happiness.
Practical: First Amendment and Worship in Schools
The First Amendment contains two clauses that guarantee freedom of religion. The Establishment Clause bans the government from enacting any legislation whose goal is to either create an official religion or favor a certain religion and not another. Accordingly, this particular clause seeks to enforce the separate of Church and the State.
Public schools are less likely to hinder or inculcate religion. They must however be seen to hold religious convictions and religion with respect and fairness. The reasons why public schools endevor to uphold the First Amendment is with a view to try and protect the religious liberty rights of students from all faiths, as well as those who belong to none. Schools demonstrate fairness by ensuring that the curriculum includes study about religion as far as is appropriate and as an integral part of whole education.
There have been questions asked in trying to arrive at a consensus on how schools should treat religion. One crucial question has been around the idea of neutrality in the study of religion. The First Amendment has drawn a sharp distinction between the teaching of religion on one hand and the indoctrination on the other hand. In keeping with the current law, the various common documents stress that teaching about religion must be grounded on sound scholarship.
There has been a belief among some school officials and parents that the constitution prohibits any form of religious expression in public schools. That is however a wrong concept. Students have the right to pray, even in isolation, any time they want. They can gather and say grace among them and be allowed to gather out of free will. In addition, student religious clubs should be treated like any other extracurricular club in schools and they should be allowed to publicize their meetings and hold their meeting on school grounds, utilize school facilities just like other clubs in the schools. They also have the right to gather and read any religious book of their wish (Jones and Eric 112).
On their part, teachers can and should give teachings on religion and the role it has played in shaping the history of America and how it has contributed to values, knowledge, music, and art. The students should also feel free to express their religious beliefs through art, school work, and presentations. All these forms of religious expression and worship are permitted and enjoy protection by the First Amendment. Where there are misunderstandings about the First Amendment and the role it plays in protecting freedom of religion in schools, efforts should be made to create awareness and enlighten students, teachers, and school authorities. All parties should be brought to the understanding that the First Amendment protects freedom of religion by allowing students to pray. It also protects freedom of religion by prohibiting schools from preferring any form of religion and compelling students to express or subscribe to any form of religious beliefs (Mountjoy 98). The amendment also protects the individual’s including student’s right to associate with any religious group within the confines of the law.
The Supreme Court upheld such an interpretation in Good News Club v. Milford Central School when it ruled that the refusal of a school to allow a group to use school facilities for worship services violated the First Amendment. Milford Central School refused a request by the Good News Club, a nondenominational religious club to meet once a week at an elementary school to have some fun time of singing songs, listen to Bible lessons and memorizing scripture.
Djupe, Paul A, and Laura R. Olson. Encyclopedia of American Religion and Politics. New York, NY: Facts On File, 2003. Internet resource
Jones, Steven P, and Eric C. Sheffield. The Role of Religion in 21st-Century Public Schools. New York: Peter Lang, 2009. Print.
Mountjoy, Shane. Engel V. Vitale: School Prayer and the Establishment Clause. New York: Chelsea House, 2007.
Schultz, David A. Encyclopedia of the United States Constitution. New York: Facts On File, 2009.
Smith, Rich. First Amendment: The Right of Expression. Edina, MN: ABDO Pub. Co, 2008.