Our Shredded Constitution, Part I: Free Exercise of Religion

Americans take justifiable pride in the freedoms given to them by nature or God and enshrined in the Constitution’s Bill of Rights. As we seem to be finding out day after day, however, those rights are no longer of any real value; they are, as James Madison suspected they would be, “parchment barriers” against the encroachment of government and a population conditioned to believe that rights originate with that government, not from a higher power.

Founding philosophy believed that the legitimacy of government sprang from defending rights inherent to human beings; if the government were to violate those rights, it would undermine its entire raison d’etre. Too many Americans today do not ask whether government defends our rights; instead, they ask, why government should allow Americans to exercise their rights.

The result has been a complete shredding of American rights altogether. The Bill of Rights is now a relic of what it once represented, a Swiss cheese of liberty. In this series, we will be examining the Bill of Rights and determining just how much is left of those rights after government has shredded them. We begin with the most controversial provision of the week: freedom of religious exercise.

The Meaning of the Free Exercise Clause

The First Amendment contains this provision: “Congress shall make no law…prohibiting the free exercise [of religion].” This seems clear on its face; Congress cannot ban a religion. But there is play in the joints here. Is religion just something in your head, or something you practice? And if so, how do we reconcile general laws with specific religious practice?

To answer that question, let’s look at the writings of James Madison, the creator of the Bill of Rights. He helped write the Declaration of Rights in Virginia, insisting that rather than the language of George Mason, which seemed to suggest that freedom of religion existed only thanks to the kindness of government; his text suggested instead that “all men are entitled to the full and free exercise,” meaning that the right to freedom of religion preceded government. He wrote in 1785 that religious exercise was “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”

Madison’s original First Amendment language read this way: “the civil rights of none shall be abridged on account of religious belief or worship…nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” Conscience, Madison wrote elsewhere, “is the most sacred of all property.”

In other words, government was designed to preserve the right of religious practice. Barring some other countervailing right – for example, your right to life, or your right to property, or your right to religious practice – religious exercise cannot be infringed.

How The Supreme Court Perverted The Free Exercise Clause

The battle at the origin of the republic was not over secular government ramming its values down the throats of religious individuals, but over religious sects using the government to harm other religious individuals. And the Supreme Court’s perversion of Madison’s principle to accommodate such efforts began with Reynolds v. United States (1879), which allowed federal law banning consensual polygamy to trump early Mormonism. Not state law, which would have been perfectly legitimate under the Constitution – federal law. In 1940, the Supreme Court applied the free exercise clause to the states under flawed incorporation theory.

The worm, for a brief while, began to turn. In Sherbert v. Verner (1963), the Supreme Court found that it was unconstitutional to deny benefits to Seventh Day Adventists for taking Saturdays off; in Wisconsin v. Yoder (1972), the Court found that Amish families could school their children at home. But then, in Employment Division, Oregon Department of Human Resources v. Smith (1990), the Supreme Court found that a Native American tribe could not use peyote in religious rituals, because drug laws are “neutral law of general applicability.” In other words, free exercise only stretches as far as government says it stretches.

Meanwhile, the Supreme Court had also established a line of cases striking down laws enshrining traditional morality – laws that were secularly-based, but coincident with religious values. In Roe v. Wade (1973), for example, the Court suggested that it would be unconstitutional for states to regulate abortion. In Lawrence v. Texas (2003), the Court decided that states could not prohibit sodomy. And a series of appellate cases all over the country have now suggested that state laws restricting marriage to a man and a woman violate the Constitution.

Where We Stand

The combination of these toxic rulings leads to a perverse outcome: religious Americans cannot avoid neutral laws of general applicability, and yet religious Americans also cannot have a say in the laws of their communities, lest they violate separation of church and state. The natural effect is that laws are passed coercing religious people into violating their religious precepts.

The only question now is how far courts will go in directly undermining the free exercise clause. Courts across the country are now deciding on whether the federal government can force religious Americans – whose religious practice extends to their personal lives and their businesses – to fund insurance covering abortion and take part in same-sex weddings. It is only a matter of time before the anti-religious movement in the country insists that non-profit status be removed from churches that refuse to practice same-sex weddings. After all, neutral laws of general applicability in some states suggest that discrimination against gays and lesbians by private parties – defined broadly by some courts already to include discrimination against gay and lesbian behavior – is illegal.

The right to free exercise has been turned on its head: instead of a right to exercise your religion free of the bounds of government, the government now gets to decide just how much of your religion you are allowed to exercise.

Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the New York Times bestseller “Bullies: How the Left’s Culture of Fear and Intimidation Silences America” (Threshold Editions, January 8, 2013). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.