A Note Concerning First Amendment Jurisprudence

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”

This has not been properly understood. It certainly prohibits Congress from establishing a national religion. It prevents any citizen from being required to support, financially or otherwise, any religion. It prevents any and every citizen from being required to follow the tenets of any religion. No law can force a citizen to adopt, or prevent a citizen from leaving, a religion. That is because it separates church from state.

However, if that were its sole purpose, the amendment might better have read “Congress shall make no law respecting the establishment of religion.” In that case, “establishment” would be the thrust of that portion of the amendment. Establish would there be used as a verb. However, an establishment of religion would refer to any church as well as a national church; therefore, Congress shall make no law concerning a church. Churches are establishments of religion, just as a university might be termed an establishment of learning. Establishment is a noun, just as much as it is a verb.

Enjoining Congress to make no law respecting an establishment of religion includes any law that would establish a religion.

The remainder of the amendment concerning religion, which prevents Congress from making any law prohibiting the free exercise of religion, means Congress cannot hamper religions. They cannot tax, they cannot say what may be said from the pulpit, or not said. They cannot demand that religion hide itself or shrink from sight. They cannot say who must, or can, be hired, or who can or cannot be, fired from a religion’s employ. Within a religion’s schools and hospitals, the State cannot say what must or must not be taught, or what procedures must, can, or cannot be performed. No law can prevent a free citizen from display of tokens of religious devotion or adherence

The only time the barrier between church and state may be breached would be if someone were being deprived of life, or liberty. Depriving a citizen of life or liberty is more likely to be an action of the state against religion and religious adherents, than of a church against its adherents. The Third Reich killed Jehovah’s Witnesses for refusing to fight in World War Two. It murdered Catholic and Lutheran priests and laiety for preaching against Nazism, and for sheltering their fellow human beings. The Chinese government persecutes Tibetan Buddhists and Christians in China. Islamic theocracies persecute Bahais, Christians, and even Muslims who do not adhere to the Wahhabi Islam straight out of the Koran.

The Supreme Court has at times been called upon to decide just what is and what is not a church-an establishment of religion. It is true that simply calling oneself a religion does not make it so. That does occur, but it is the great exception.

Supreme Court justices are human beings, with all the flaws pertaining to human beings. However, Supreme Court justices also have sufficient education and time to restore Constitutional principles to our Constitutional Republic.

Let us pray that wisdom and conscience prevail.

This column originally appeared in the Journal of American Physicians and Surgeons Volume 17 Number 2 

©2024. Tamzin A. Rosenwasser, M.D. All rights reserved.