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Does the First Amendment Mean What It Says?

The first amendment to the United States Constitution reads as follows:

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; of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I was considering the arguments about separation of church and state the other day and thought it might be helpful to review what the first amendment actually said. I know this may seem a little simplistic but the amendment specifically prohibits Congress from passing a law establishing an official religion for the country or a law that prevents people from practicing their religion preference. The amendment specifically does not mention the executive or judicial branches, or anyone else, for that matter. Of course, one must remember that the founders would not recognize the current federal government. The original theory was that the Congress would basically run the country in times of peace but the President had large powers for emergency situations and war because the Congress worked too deliberately in a crisis situation. George Washington felt he would only veto a bill if he believed that the law violated the Constitution. Today, Congress sits on its hands and even is currently trying to pass laws ceding power to the executive branch. I find that pretty interesting since when George W. Bush was President, there was much gnashing of teeth about too much executive power from Democrats but with Barrack Obama as President, Democrats are giving unilateral power to the Treasury Department, for example.

The founding fathers were acutely aware of the history of Europe and the Middle East where untold millions had died as a result of religious wars over the centuries. In Britain alone, the conflict between the Catholic Church and the Protestants had caused war, government upheaval and tension for centuries. Therefore, in order to avoid those types of conflicts, no official religion for the country would ever be established. Some modern advocates try to make it sound like the founders were against religion. It only takes even a cursory reading of any of the writings of most of the founders to trash that view. The vast majority of the founders were devoted to their religion and used it to guide their actions and values routinely. To claim otherwise is fiction.

People in line with groups like the American Civil Liberties Union (ACLU) have taken the position that anything government in the same area code as anything religious is a violation of the Constitution, specifically the first amendment. But is it? Since the federal government intrudes into almost every area of citizen’s lives, does that mean that religion has no place in the modern United States? Or, does the Constitution mean what it says?

Let’s look at an example for the sake of argument:

There has been a monument to memorialize Americans who lost their lives in military service in the Mojave National Preserve since 1934. It is a cross no more than about eight feet tall. It can be seen from a few hundred yards. A case recently went to the United States Supreme Court to decide whether it was allowed on public lands. I suppose it is redundant to point out that no one seemed to mind for about sixty-six years. Looking back at the first amendment, did Congress have anything to do with this monument? Did they make a law establishing it? The memorial was originally placed by the Veterans of Foreign Wars which is not Congress, and, as an organization, is a heck of a lot more respected and popular. So, since 1) Congress was not involved, and 2) no law was made, and 3) no prohibition on the free exercise of religion was established, how does the mere presence of the memorial violate the first amendment? None of the specific prohibitions listed in the first amendment apply. The case is, of course, a lot more complicated than it appears. There is question of standing for the plaintiff, there is a question about land transfer and a number of other issues including that the government refused to allow a Buddhist monument in the same area in 1999, stating they were going to remove the cross. Notwithstanding all the complexities, the plaintiff in the suit argues that the mere presence of any religious symbol on government property establishes an official religion for the nation.

Using that same premise, a Star of David or a cross on a headstone in a government cemetery is an endorsement of religion. If the mere presence of a religious symbol establishes religion, then there certainly are a number of established religions in the country.

It comes down to the same argument all over again: Can judges interpret the law any way they want, or does the Constitution mean what is written? If the liberal former view is true, they Bill of Rights would have been a lot easier to write as one amendment, “Do whatever you want to” and courts could serve up the Law du Jour each day of the week.

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