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Religious Liberty

Freedom of Religion is NOT Freedom from Religion.

The Religion Clauses – the prohibition against any law of Congress respecting an “establishment of religion” and the guarantee of the right of “religious freedom” – are found in First Amendment to the U.S. Constitution. As such, religious protection is more highly guarded than other so-called “rights” granted under mere statutes. Any changes to these constitutional protections can only be made by an amendment to the Constitution through the elected legislative representatives of the people.

Unfortunately, for several decades now some judges have attempted to legislate from the bench and, thereby, to change the meaning of the constitutional right of religious freedom. Through these rulings, the democratic system has been repeatedly circumvented as judges arrogantly and unconstitutionally disregard the will of the people. In their eagerness to establish new policies regarding religion, unelected judges have ignored the text of the Constitution and have replaced it with new texts or “tests” that alter the clear meaning of the written Constitution. Below at “Religion Cases” are several examples of court rulings that have unduly and unconstitutionally altered the laws, or meanings of laws, regarding religious freedom.

As JAG succeeds in our mission of judicial renewal, activist decisions that seek to dismantle religious freedom will decline. They will instead be replaced with the laws and constitutions established and constantly adapted by an involved and informed citizenry as initially designed by the Founders. The elimination of judicial activism will not necessarily correspond with the end of the current threat to religious expression. It will, however, rightly return the battle to the fields of public policy in the legislature where the issue may be properly decided by an entire nation of free men and women rather than dictated by the personal political standards of a few unelected judges.

Religion Cases:

Everson v. Board of Education,[1] began a gradual transition from protecting against a Government installation of religion into an environment of disestablishment law. In resolving a tax suit, the court dramatically re-defined the First Amendment’s Establishment Clause, drawing on concepts in the 14th Amendment in order to find a way to apply it to the individual states. In Everson, a New Jersey taxpayer filed suit protesting the use of tax dollars to provide reimbursement to parents of both public and private school children taking public transportation to school. The plaintiff claimed that this equal application of the law violated the constitution because it was a form of state support of religion.

While the Court reached the right result, the language in their decision led to the fabrication of a new meaning of the First Amendment which would now, according to the Court, erect a “wall of separation” between the church and state. The dissenting opinion in Everson claimed that “[t]he purpose of the Establishment Clause [of the First Amendment] was to create a complete and permanent separation of spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.”[2] This statement does not follow the text nor the intent of the First Amendment. Moreover, the Court re-writing of the First Amendment changed its focus from protecting religion to punishing religion.

In Engel v. Vitale,[3] the Supreme Court announced for the first time since the adoption of the First Amendment that it would make the Amendment applicable – not just to Congress as the text clearly and exclusively requires – but also to the states. Certainly, it is reasonable to question whether governmental officials should compose an official school prayer and require its recitation in public school. However, the decision of whether “to pray or not to pray” is constitutionally reserved to the People and to their elected representatives – not to judges. The Court's overreach in Engel became the basis for several subsequent decisions limiting government-directed prayer in school. 

Abington Township School District v. Schempp,[4] was decided a year after Engel and also involved prayer in public schools. In this case, the Court declared school-sponsored Bible reading in public school in the United States to be unconstitutional. The Abington court held that the reading of the Bible was a religious exercise and “that cannot be done without violating the ‘neutrality’ required of the State by the balance of power between individual, church, and state that has been struck by the First Amendment.”[5]

Lemon v. Kurtzman,[6] is a prime example of judicial activism because the court boldly and unapologetically re-wrote the very words of the First Amendment. The First Amendment provides that “Congress shall make no law respecting an establishment of religion.”[7] Ignoring these plain words, the court created a new first amendment, now known as the “Lemon Test” which ‘requires’ that:

1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion

This three prong Lemon test goes far beyond the true First Amendment and limits the Free Exercise of Religion. Essentially, the Court’s re-writing of the First Amendment in the Lemon case is not just different from the First Amendment, but it violates the text and intent of the First Amendment. In short, the Lemon test is not just un-constitutional, it is anti-constitutional.

Wallace v. Jaffree:[8] The Supreme Court used the Lemon test to launch a direct assault on religion. When applying the test, The Court announced that an Alabama statute permitting one minute for prayer or meditation was unconstitutional, because it was somehow motivated to advance religion and did not have a purely secular purpose. Justice Burger observed the absurdity of the Court’s ruling in his dissent, noting: “To suggest that a moment-of-silence statute that includes the word "prayer" unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality, but hostility, toward religion.” [9]

This hostility was further fostered in Lee v. Weisman.[10] The principal of Nathan Bishop Middle School invited a Jewish rabbi to deliver a prayer at the graduation ceremony. In reaction, the parents of a student demanded a temporary restraining order to bar the rabbi from speaking. When it reached the Supreme Court, Justice Kennedy was quickly identified as the deciding vote – and, in reaching his decision, Kennedy entirely ignored both the text of the First Amendment and the Lemon Test and invented instead a completely new test of his own: the “Coercion Test.” Kennedy stated, "As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools …. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear … to be an attempt to employ the machinery of the State to enforce a religious orthodoxy."[11]

Thus the conspiratorial notions of one judge were allowed to completely redefine the age-old understanding of our Bill of Rights, and one judge legislated from the bench, re-wrote the constitution and imposed his will and fears on the entire nation of America for generations to come.

This is the greatest danger of Judicial Activism – that one judge, seemingly unaccountable to the People, can change our lives and dismantle our freedoms without consulting our knowledge or hearing our rebuke. This form of judicial legislation destroys the basic concept of our American form of government by taking legislative power out of the hands of the People and their elected representatives and giving it instead to unelected judges. 

[1],[2] Everson v. Board of Education, 330 U.S. 1 (1947)

[3] Engel v. Vitale, 370 U.S. 421 (1962)

[4],[5] Abington Township School District v. Schempp, 374 U.S. 203 (1963)

[6] Lemon v. Kurtzman, 403 U.S. 602 (1971)

[7] From the 1st Amendment to the United States Constitution. In its entirety, the First Amendment provides that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 

[8],[9] Wallace v. Jaffree, 472 U.S. 38 (1985)

[10],[11] Lee v. Weisman, 505 U.S. 577 (1992)