Perhaps it’s time we embraced the Founders and their view of religious liberty once again.
Once again this Christmas season, Americans are forced to deal with the travesty of satanic displays in state government buildings. Such displays have been erected or are being proposed in Oklahoma, Michigan and Florida.
In each case, the acolytes of the Satanic Temple claim the First Amendment right to the free exercise of religion. If the Christians get their Nativity scenes, they argue, then we get our “Snaketivity” scenes (their term) which picture angels being consumed by the fires of hell.
Here is the dismal condition of the swamp in the Sunshine State:
“Members of the Satanic Temple in Florida sought to put up a holiday display in the state Capitol Building this year as other religious and non-religious groups have done...
“Everything from nativity scenes to beer-can Festivus poles to plates of pasta from the Church of the Flying Spaghetti Monster have been displayed in the rotunda of the Florida Capitol Building during holiday time...
“The unholy rollers claim Florida is denying them their constitutional rights under the First Amendment, citing the 1994 Supreme Court decision in Rosenberger v. University of Virginia, the upshot of which was the government cannot selectively choose from among religious-based efforts.
“If the state of Florida is going to allow one religion in the door, it has to let them all in, regardless of the content, Mark Joseph Stern wrote at Slate.”
Does the Constitution require us to put up with this idiocy?
It all depends on whether we use the Constitution as given to us by the Founders or the one mangled beyond recognition by the Supreme Court.
If we use Jefferson’s Constitution, the answer is a flat no. We do not have to put up with such errant nonsense unless we want to. If we use the one butchered by the Supreme Court, however, we may have no choice.
According to Joseph Story, the longest serving associate justice in Supreme Court history, the Founders were dealing exclusively with Christianity, and not religion in general, when they drafted the First Amendment.
They were seeking to exclude all rivalry among the various Christian denominations by prohibiting the central government from picking one Christian denomination (say, for example, Episcopalian, Presbyterian or Congregationalist) and making it the official church of the United States.
They weren’t dealing with alternative religions at all. They were neither endorsing them nor prohibiting them. They intended to leave all matters of religious expression up the states, and keep the central government, and every branch of it, including the judiciary, out of the equation altogether.
They flatly prohibited the central government (including the judiciary) from interfering in any way whatsoever with the exercise of religion in the various individual states. Regulating religious expression was literally to be none of the central government’s business.
Here’s how Story - appointed to the Court by James Madison - put it in his eminent history of the Constitution:
“The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment.”
Everything else would be left to the states. If a state wished to pick one Christian denomination and make it the “established” church of its state, it could. Nine of the original 13 states did in fact have established churches at the time of the founding. The First Amendment was written to prevent the federal government from establishing religion, not the States.
As Jefferson put it, writing as the sitting president in 1808 (emphasis mine):
“This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U. S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.”
So the Constitution - as given by the Founders, not as shredded beyond recognition by the courts - gives individual states complete autonomy in the regulation of religious expression.
Sadly, our current grim and misaligned state of affairs has been brought about by a Supreme Court which has been tragically misguided on the subject of religious liberty since at least 1947.
But if we were to use the Constitution the Founders gave us, then the way forward would be quite simple. The federal government, including the judiciary, would have no say whatsoever over religious displays in the individual states. The judiciary would have no power to outlaw or to protect.
The issue would rest exclusively with state authorities. If a state wants Nativity scenes in schools, county courthouses and the state capitol, they can have them. If they don’t want satanic temple displays, they don’t have to have them. The issue would rest entirely with the elected representatives of each individual state.
If the issue is settled by elected officials and elected officials alone - with no courts dictating such decisions - then the people remain their own rulers. If we don’t like the policies established by our state representatives, we can elect different lawmakers and get different policies. That, ladies and gentlemen, is freedom.
This kind of freedom is what Joseph Story said the Founders intended, and this is the kind of freedom that Thomas Jefferson, the icon of religious liberty, practiced as president. They were right. Perhaps it’s time we embraced the Founders and their view of religious liberty once again.