On Church and State

Ever since the founding of these Unites States of America people have been trying to deal with the complicated issue of the proper relationship between Church and State. Perhaps the most important phrase in that discussion was one made by Jefferson in a letter during his presidency. It mentions a "wall of seperation" between the two. This has since been adopted as tantamount to constitutional canon, despite its almost entirely personal nature (it was from a private letter, which under any understanding of the Constitution cannot have the force of law). This phrase has come to be the definitive interpretation of the 1st Amendment that states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of." People say that the 1st Amendment establishes a complete and inviolable seperation between Church and State.

Let us then examine the wording of the Amendment in this regard. "Congress shall make no law" is pretty straightforward. Congress, or the House of Representatives and the Senate, are prohibited in the exercise of their enumerated powers from making any law whatsoever that would violate the amendment. This does not limit the powers of the President, of officers or officials who are not members of Congress, or even of the operations of Congress itself outside of its lawmaking duties. "... respecting an establishment of religion..." is also clear. The aforementioned outright prohibition on legislation applies to each and every issue that is in respect to establishment of religion. This means that Congress cannot by law forbid any other part of the Federal government (that is, the several States, the other branches of the General government, or other such bodies, including private institutions) from establishing one or more religions as the official religion of said body. This would apply to States such as Virginia (which might decide to establish the Methodist Church as its official religion) or Massechusetts (which might establish some form of reformed or Puritan church as its official religion), just as it would apply to a college (for instance Fordham might make Roman Catholicism its official religion, while Brigham Young University might establish the Baptist Church as its official religion). So too could the President declare that all officers of the executive branch must hold whatever religion he so chooses to be the official religion of said branch of government. However, it also applies in the other direction. Congress cannot force any institution to adopt a particular religion as its offical one (so if Virginia wanted to disestablish its church it could do so without interference, or if the President wanted to secularize the executive branch then he could). Finally, "... nor prohibiting the free exercise thereof." This is the most problematic section, and the one most often ignored. It means, quite simply, that Congress cannot make any form of law that would limit the ability of the People freely and openly to practice their religions. This would mean that public prayer, open wearing of religious symbols, and all other such trappings of faith are untouchable by any act of Congress. And since all legislative power has been reserved to Congress, the States, and the People in their respective spheres, if the People decide to practice a religion and the States allow them to do so then Congress cannot interfere (nor can any other part of the General government, since only Congress can pass laws; courts, I'm looking at you here).

There are two major problems with the above analysis. First, what about religions like Druidism or Baal worship that entail human sacrifice (infant sacrifice in the case of the latter)? What about other religions with similarly evil practices? It is my conclusion that the religion itself remains protected. Only those specific practices of that religion that violate other laws can be prosecuted, and then only because they violate other laws. A law cannot be passed that says that women are not allowed to wear veils in order to limit their right of exercise of religions like Islam. However, laws can be passed that prohibit murder, which would prevent human sacrifice as an incidental effect. Second, there is the 14th Amendment. Though not broadly applicable when it comes to restricting the several States by the limitations of the Constitution, by stretching its wording it can be argued that a State establishing a religion would thereby be abridging the privileges and immunities of the citizens of that State who were not members of said religion. This is a tenuous argument, though, since the 14th Amendment is most clearly read when it is interpreted to refer only to such things as voting rights, criminal rights, and other such matters of basic personal protections, rights, and responsibilities inherent to citizenship.

In conclusion, it is my opinion that the 1st Amendment therefore prohibits Congress from imposing any limits whatsoever on the free exercise of religion, up to and including a State establishing (or disestablishing) a particular religion as its official one.