Critiquing a lay reading of the Constitution’s “freedom of religion” clauses

Please note that this post is from 2012. Evaluate with care and in light of later events.

In this second part of my series on typical problems in lay readings of the Constitution, I will focus on the question of the freedom of religion in Michael J. Nellet’s “How The Left Redefined The Term ‘Rights.’”

Nellett writes:

ATHEISTS claim that there is a “seperation of church and state” and they enjoy a right to “freedom FROM religion”; thus no prayer in public schools, no pledge of allegiance, God’s name is not to be uttered at all, and nothing scriptural can be displayed ANYWHERE in public (especially in or on government property.) The sad truth (for atheists anyway) is that this is a LIE! The First Amendment of our Constitution says “Freedom OF religion”, which means that religion IS protected from government interference.

Meanwhile, the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

(Before we go further, we have to acknowledge that the Supreme Court has held that the 14th Amendment “incorporates” (most) of the Bill of Rights to apply to state and local governments too, not just Congress and the federal government. This is another level of interpretation that is also controversial, although it cuts across political lines — as we saw with recent Second Amendment rulings. Also note, though, that the Bill of Rights applies only to government action, not the actions of private entities.)

Reading the literal words above, it’s clear the Constitution does not actually say either “freedom of” or “freedom from” religion. Nonetheless, both of these interpretations of the Constitution are valid readings when the two clauses are read together. How is this possible?

The Establishment Clause supports the idea of “freedom from religion,” since it prohibits government from establishing religion. What does this mean? Originally, it likely meant (and now we see the move to bring in “intent”) that the United States couldn’t have a state religion (like the Church of England) funded by the government — which has led to prohibitions on prayers in state-supported schools, since this suggests that the government supports one religion (even if it is non-denominational Christian) over others. Key to this is state funding and the perception of state promotion. Entities that are not state funded have no such restriction, since the First Amendment does not apply to them.

In short, Nellett is too broad in his understanding of the limits placed on religious display. Indeed, the Free Exercise Clause underlies “freedom of” religion by non-governmental actors. However, Nellett is correct to say that atheists have no right to be free from religion or the religious in general.

This reading of the First Amendment illustrates a few common problems in lay readings of legal documents like the Constitution:

1. relying on what you think a document says, rather than closely reading the actual words;
2. relying too much on an irrelevant distinction for the basis of your entire argument (“from” vs. “of”);
3. misunderstanding the scope of a law or who or what is affected (“no prayer in public schools” is different from “nothing scriptural can be displayed ANYWHERE in public”);
4. similarly, failing to realize that even “plain English” is problematic (“public” means government when you say “public schools,” but it means “where most people can see it” in the phrase “ANYWHERE in public”).

How can readers of the Constitution avoid these problems?

First, some legal experience and knowledge of precedent helps: incorporation isn’t obvious without some pre-existing knowledge (though you might derive it on your own) and the scope of a clause may not be clear (though it does say “Congress shall make no law,” implying that only government is limited).

Second, and even more importantly, avoiding common reading mistakes requires stepping away from your subjective expectations of what you think something says and actually reading it very closely and paying attention to its words — and the potential ambiguities of the English language.