Erasing the First Amendment

When we all studied American History and Civics 101 in school, we were taught that the First Amendment to the United States Constitution guarantees religious liberty to all.  It ensures that the government cannot interfere with religious belief or practice, nor canthe state reward or punish religious people or groups for their beliefs.  All religions are to be treated equally, with no favoritism or legal restrictions.  It’s to enjoy this specific freedom that the early settlers, and many of our ancestors, came to this country.  It’s part of what makes America great.

Too bad that the Supreme Court has been on a path to erase the First Amendment to the Constitution.

This has nothing to do with the issue of prayer in public schools or copies of the Ten Commandments in public buildings.  It has everything to do with marginalizing and penalizing religious practices that are not popular with the current powers that be.

The first major instance of this came in 1990, in the case of Employment Division v. Smith.  The case involved the denial of unemployment benefits to several Native Americans, pursuant to a rule that denied benefits to anyone who couldn’t pass a drug test.  But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass.  They challenged the law, claiming that it would force them to violate their religious beliefs.

The Supreme Court held that they were properly denied the benefits, because the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty.  In essence, the Court held that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

In one decision, the Court essentially gutted the “free exercise” clause of the First Amendment.  The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — the Catholic Justice Scalia.

The most recent shredding of religious liberty came last week, in Christian Legal Society v. Martinez.  This case arose at a public university law school — an arm of a state government.  The Christian Legal Society, an interfaith group of law students, adoped rules that required all its officers and members to subscribe to a basic tenet of Christian moral teaching — that sexual relations are properly reserved only to a man and woman joined in a marriage.  The school denied the organization recognition because of this provision “discriminated” against personw who are engaged in homosexual acts and relationships. The effect of this was to deny the Christian students access to funding and activites that were open to all other kinds of groups (including, ironically, a “gay and lesbian” association).

The Supreme Court upheld the denial of recognition to the group, holding that the school could require that all student organizations accept anyone who applies, both as members and as leaders.  In essence, the Court decided that the state government has the power to regulate the identity and message of religious organizations, and can force them to accept people who deny or undermine the integrity of their beliefs.  And, by implication, the Court’s decision means that a religious group cannot be a full participant in the “marketplace of ideas” unless its beliefs conform to current standards of political correctness.  In other words, the government can play favorites among religious groups — granting “equal” access to those it approves, and denying it to those it disapproves.

So much for the “free exercise” and “free association” rights that are supposedly guaranteed under the First Amendment.

This decision was written by Justice Ginsburg, but was joined by two Catholic Justices, Kennedy and Sotomayor.  Since this was Justice Sotomayor’s first foray into religious liberty jurisprudence, it does not bode well for how she will rule in future cases.

There is a movement afoot in America to stigmatize religious people who uphold traditional moral teaching (particularly about homosexuality and other sexual subjects) as bigots who do not have to be tolerated in the public square.  Whether they knew so or not, the Justices of the Supreme Court have advanced that agenda and, in doing so, have reduced the liberties of all.

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