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First Amendment means freedom of religion without government support

Wednesday, October 16, 2013 - 12:01 am

Thanks to Douglas Wellman we can further discuss the meaning of the First Amendment. His objections to my column of Sept. 12 invite a response.

Wellman certainly accepts that the First Amendment says, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” He also appears to agree that “establishment” means government support, including financial.

However, he disagrees that the amendment means that “Everyone is free to exercise a personal choice of religion but must not expect or demand government support.”

Instead, he claims the amendment merely prevents establishment (or support) of a national religion. That would be correct if the amendment read “establishment of a religion .”

However, there is no “a” in the amendment; and the only way to get Wellman’s meaning is to misread the amendment.

Omission of the “a” is not an error. As my references indicated, the key papers and legislation of the times were deliberately speaking of religion in general. Certainly the well-educated founders who wrote the amendments and the Congress and the state conventions that studied and approved them would have inserted an “a” if they wanted it.

For support, Wellman turned to the Supreme Court and an 1892 case with a unanimous decision, Church of the Holy Trinity v. United States. Unfortunately, that case didn’t mention the First Amendment

Trinity had hired a British pastor and was sued under a law that forbade the importation of foreign labor, a measure intended to protect domestic wages. The court quickly decided the law applied to manual labor, not to professionals. Its decision was unanimous but irrelevant to our discussion.

My Supreme Court reference was Everson v. Board of Education in 1947, possibly the first case requiring a careful interpretation of the First Amendment. It made a 5-4 decision that Wellman considered improper and inferior to Trinity’s unanimity.

The case involved bus fare for students who were going to parochial schools. The school system used public transportation, and the decision depended on whether the fare supported religious activity or the state’s interest in getting children to school. (The majority supported paying the fare.)

However, all the justices had to review the basic meaning of the First Amendment. Among other requirements, the majority decision said that “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

The dissenting justices agreed that the First Amendment’s prohibition “broadly forbids state support, financial or other, of religion in any guise, form or degree. It outlaws all use of public funds for religious purposes.”

In effect, there was a unanimous decision here on the meaning of the First Amendment.

Wellman also protested that the Everson decision violated “150 years of firmly established precedent.”

That precedent had residents in each colony paying taxes for a state-supported church even though they might belong to another. For colonies with a royal charter, the charter mandated the Church of England; in New England, the mandate came from the Congregational church.

After 150 years and a growing number of members of other denominations, protests grew from Baptists, Presbyterians, Quakers and other groups, probably including Catholics. Political independence in 1776 brought the opportunity to do something at the national level, and the First Amendment was the result.

In 1868, the 14th amendment applied the entire Bill of Rights to the states. Those two amendments, First and 14th, not the Everson opinions, were what fortunately ended the precedent that Wellman misses.

We should note that Wellman’s interpretation of the First Amendment would allow the introduction of religion into public schools as well as religious displays and activities in government buildings and on government property. This would recreate the situation where many people would be forced to share the cost for religions other than their own.

Instead, the First Amendment assures freedom for a personal choice of religion without paying a tax for someone else’s religion. Our churches have flourished with the support of members, not government.

To reiterate, the First Amendment means that everyone is free to exercise a personal choice of religion but must not expect or demand government support.

As for the Mark Levin “Liberty Amendments” hailed by Wellman, none mentions the First Amendment. One proposes that a group of states should be able to override acts of Congress. We’ve already had a Civil War over that.