Religion in the Constitution

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

Amendment 1 to the Constitution of the United States

The First Amendment of the Constitution makes it clear that the United States is never to become a theocracy. The authors of the Constitution were mindful of the hazards posed by state religions of any kind, and they wanted to prevent the United States from suffering their worst effects.

Does the First Amendment protect religious beliefs, or does it protect religious practices? The wording of the Amendment seems to imply that it protects both. The phrase “the free exercise thereof” seems to encompass not just religious beliefs, but religious practices as well.

But that isn’t a plausible interpretation. Consider the following scenario. A judge, who is an ardent and practicing Catholic, is presented with a case involving a Catholic priest who is charged with pederasty. His attorney is a Jesuit who argues that the court has no jurisdiction in the case because the Vatican claims priority involving all Catholic clergy. Because the judge regards himself as a staunch Catholic, he agrees and releases the defendant to the custody of the Vatican.

Article VI of the Constitution says the following:

The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI of the Constitution of the United States

So the judge described in the scenario above would be bound to regard the Constitution as the supreme law of the United States, regardless of whatever claims the Pope might make to the contrary. And the decision to turn the defendant over to the Vatican would be an act that violates the Constitution, regardless of the wording of the First Amendment.

Consider now the case of a judge who, when he is appointed, is an avowed evangelical Christian. And suppose further that after a period of some years he undergoes a spiritual transformation in which he converts to a strident form of Islam that insists on the enforcement of Islamic Law. So when he is brought a case of robbery in which the defendant is found guilty, he sentences the robber to have his right hand and left foot chopped off.

Again, the Islamic judge is bound by his oath of office to follow the Constitution, the laws of the federal government, and the laws of the several states– NOT the teachings of the Koran, or of any other religious writing.

The previous cases involve judges who render opinions in courts of law. What about private citizens? Are their religious practices defended by the First Amendment? Imagine a devout Christian who studies the old testament of the bible and finds to his delight that Jacob had two wives– Leah and Rachel. He also learns that each of these wives had a maidservant, and that Jabob fathered children by both of his wives and by their maidservants– four women in all. Jacob was renamed Israel by God, thereupon identifying him as the patriarch of the Israelites. He thereupon deduces that God must want good Christian men to follow in this practice. So he marries four women in a state that has long since outlawed bigamy.

To consider a more extreme example, suppose that a cult of the Aztec god of war, Huitzilapotchli, takes hold in this country. The Aztecs believed that the god required regular ritual human sacrifices. So the cult leader insists on performing a ritual human sacrifice every new moon in accordance with the ancient practices.

None of these behaviors is protected by the First Amendment. In fact the only religious practices which are protected are those which do not violate the secular laws of the state, and of the nation.

Written 2020-11-25

Copyright (c) 2020 by David S. Moore

All rights reserved