Constitution Day and the First Amendment

By Angus Kirk McClellan '05

On September 17, 2014, in honor of Constitution Day, Dean of Faculty Dr. Dennis Stevens led the on-campus discussion Religion, Politics, and the First Amendment: Seeking a Balance.

He focused on the five interpretations of the establishment clause, the two interpretations of the free exercise clause, the idea of the “wall of separation” between church and state, and the related Burwell v. Hobby Lobby Stores, Inc. (2014) Supreme Court case.

The Establishment Clause

Dr. Dennis StevensThe religion clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

In the first interpretation, “the establishment clause prohibits the National government from federally supporting a single church or religion,” Stevens said. This appears to be the simplest, most literal interpretation.

In the second interpretation, the “establishment clause was adopted to restrain the National government from interfering with existing state religious establishments.” At the time of the founding, a number of states directly supported established religions within their borders, and Anti-Federalists wanted reassurance that the National government would not interfere in state religious affairs.

Third, “the establishment clause prohibits the National government from extending direct aid or support to any or all religious sects or organizations.” The problem with this interpretation, as Stevens said, is that the National government did exactly that in the early days of the republic, directly supporting Christianity in a number of ways: Money was allocated for a congressional chaplain; in 1803, “Congress appropriated money to support missionaries to convert the Indians.”

Fourth, “the establishment clause allows indirect aid to religion or religious organizations, as long as it is not discriminatory.” In historical support of this interpretation is the Northwest Ordinance of 1789, which, in short, allocated money for schools that were then religiously oriented, and set guidelines and parameters for U.S. territories to follow before applying for statehood. Congress, in promoting good government in the territories, allocated money for schools “with the understanding that it would support religion and morality”—incidentally.

Justice Hugo Black

The fifth interpretation is the “separationist view,” which “prohibits the national government from providing any direct or indirect aid or support to religion or religiously affiliated institutions,” he said. This interpretation was extrapolated from a letter that Thomas Jefferson wrote in 1802 in which he mentioned a “wall of separation between church and state.” This letter was essentially the only justification for the majority ruling in Everson v. Board of Education (1947), in which Justice Hugo Black not only used Jefferson’s words as a basis for the separation between church and the National government, but he went against Jefferson’s states’ rights philosophy (and for that matter, the Court’s unanimous decision in Barron v. Baltimore [1833]) by ruling that there was also a wall of separation between religion and State governments through the doctrine of incorporation. 

What were once State and local affairs, to be handled by the people living in their particular and distinct communities, are therefore now decided by a majority on the Supreme Court and uniformly applied to every citizen and community in the country.

The Free Exercise Clause

The National government lacks the power to prohibit the free exercise of religion, according to the second clause of the First Amendment. Stevens outlined two interpretations—a broad one and a narrow one—of that clause.

“Basically the argument is,” in the narrow interpretation, “if you have a valid secular law that was not passed with the intention of attacking religion, and it incidentally affects religious practice, then the courts are under no obligation to grant religious exemption. They can choose to grant religious exemption, but Congress is not obliged to do so.”

His example was the case Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the court ruled that the Hialeah, Florida, city ordinance forbidding citizens “to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption” was unconstitutional, as it directly attacked the church’s religion.

The broad interpretation is that “the court has a duty under the free exercise clause to grant exemption to religious practitioners or organizations from secular laws which adversely affect them,” said Stevens.

The court returned to the narrow interpretation in Employment Division v. Smith (1990), a case in which two Native American drug rehabilitation counselors were fired for ingesting the hallucinogenic drug peyote as part of a ritual in their Native American Church. Consuming peyote is illegal under Oregon state law. The law deprived Native Americans of their use of peyote only incidentally, and so the court ruled against the Native American counselors.

The Hobby Lobby Case

The issue in the Hobby Lobby case was whether the Religious Freedom Restoration Act, which overturned the Smith decision, protected Hobby Lobby from the Affordable Care Act, which could require businesses to provide health insurance for employees that included certain types of birth control—some of which disrupt or abort pregnancies rather than prevent conception.

“These are devout Christians at Hobby Lobby,” said Stevens, “who close their stores on Sundays, costing them millions of dollars. It’s not for PR.”

In the end, the court struck down the government’s requirement in favor of Hobby Lobby, but it left the main question unanswered as to whether the court supports the broad or narrow interpretation of the free exercise clause.

Stevens ended the discussion with four conclusions: The Constitution clearly did not establish a separation of church and state; the Supreme Court undermined the original purpose of the religion clauses by applying the Bill of Rights to State powers through the doctrine of incorporation; the Supreme Court avoided taking a stand on the one issue that matters in the free exercise clause; and “the Founders thought that religious rights are not fundamentally secured by the Supreme Court interpreting the First Amendment, but by a vibrant, commercial republic characterized by a multiplicity of interests and sects. The Founders taught us more than anything not to bend on parchment rights.” 

Dr. Stevens holds a Ph.D. from Boston College, and he taught political science for more than 15 years before turning to college administration.