Monday, November 19, 2018

Freedom FROM Religion

by Agit8r (writer), Spokane, WA, March 15, 2012

An addendum to the last thing that ought ever need to be said about church and state

The assertion keeps coming up during sessions of shameless demagoguery: "Our Constitution grants us freedom OF religion, not freedom FROM religion." Some disagree by saying that we need both. That is partly true, but the latter certainly enjoys greater protection. And, given the system that our country revolted against, as it well should!

The wording that so often comes up is from a the pen of Thomas Jefferson. Now it could hardly be argued that Jefferson himself was unwilling to touch the freedom of religious institutions that had been granted charters by the public, when it was contrary to a compelling interest of the community. This may be concluded from legislation he introduced for the reform of the College of William and Mary (which was then run by the Church of England) thus:

' Be it therefore enacted by the General Assembly, that, instead of eighteen visiters or governors of the said College, there shall in future be five only, who shall be appointed by joint ballot of both houses of Assembly, annually, to enter on the duties of their office on the new year's day ensuing their appointment, having previously given assurance of fidelity to the commonwealth, before any Justice of the Peace ...any four of the said visiters may proceed to business; they shall chuse their own Rector, at their first meeting, in every year, and shall be deemed the lawful successors of the first trustees, and invested with all the rights, powers, and capacities given to them, save only so far as the same shall be abridged by this act, nor shall they be restrained in their legislation, by the royal prerogative, or the laws of the kingdom of England; or the canons or constitution of the English Church, as enjoined in the said charter. ' (my bold print)

Granted, corporations had no protected rights until the Waite Court included a reference in the introduction of Santa Clara County v Southern Pacific Railroad, but in the majority opinion in the case of Reynolds v. United States, Chief Justice Waite also held that individual religious practice was not absolute:

' As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church "that it was the duty of male members of said church, circumstances permitting, to practise polygamy; ... that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved "that he had received permission from the recognized authorities in said church to enter into polygamous marriage; ... that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church." '

Chief Justice Waite subsequently attempts to determine whether or not such ACTIONS fall within the realm of religious freedom:

' The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed. the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association... took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. ' (my bold, both places)

This opinion was cited in United States v. Lee (1982) in explanation of the following:

' We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.

The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry. Not all burdens on religion are unconstitutional. See, e. g., Prince v. Massachusetts, 321 U.S. 158 (1944); Reynolds v. United States, 98 U.S. 145 (1879). The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.

...Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. '

So, I suppose that is the last word that ought ever need to be said on the difference between freedom OF and freedom FROM religion least until next time :)

About the Writer

Agit8r is a writer for BrooWaha. For more information, visit the writer's website.
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4 comments on Freedom FROM Religion

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By Notumbus Bumbus on March 16, 2012 at 11:56 am

Double Bingo! And yet, here we are once again, with Arizona passing a law giving ANY employer the right to prevent a woman from even USING contraceptives, regardless of how she pays for them, because it might "offend that employers conscience." Hold on, baby, this rides about to get rough!!!

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By ColonialBoy on March 17, 2012 at 01:21 pm

NB, it only gets rough if you persist in saying untrue things. Just look at the actual text of the law in question:

It clearly states that religious organisations can elect to not include reimbursement for contraceptives in their employment benefits insurance plans - in fact it makes a point of saying:


You only hurt your own credibility when you make a statement so easily proven to be untrue.

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By Agit8r on March 18, 2012 at 12:51 pm

HB 2625 the AZ bill in question:

"Removes the provision that prohibits religious employers from discriminating against an employee who independently chooses to obtain insurance coverage or prescriptions for contraceptives from another source."

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By Caballero_69 on April 05, 2012 at 09:14 am

And in fact ,this is the kind of America for which our forefathers died, when they fled here to escape religious test oaths that denied office to members of less favored churches; when they fought for the Constitution, the Bill of Rights and the Virginia Statute of Religious Freedom; and when they fought at the shrine I visited today, the Alamo. For side by side with Bowie and Crockett died McCafferty and Bailey and Carey. But no one knows whether they were Catholic or not, for there was no religious test at the Alamo.

The psuedo-patriots who seek to rewrite history and annoint a nonexistence Judeo-Christian culture as the established religion of the Republic are subversive of the Constitution as it is plainly written and as it was clearly intended. They need to be removed from office and relegated to obscurity.

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