Establishment clause versus the free exercise clause 
September 21, 2009 by Yamini Piplani
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Constitutional vagueness leads to arbitrary decisions
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Time and time again, mankind has argued over the meaning of a few words to determine the fate of millions who will be affected by the interpretation.
Religious texts are one such source of contention. In the U.S., an entire branch of government was created to resolve conflicts over the interpretation of words: the judicial branch.
Courts have been able to define and refine laws for centuries to clarify and extend those that were initially expressly included in the U.S. Constitution.
But one amendment has far outdone the others in the amount of heated discourse it has caused: the First Amendment.
The First Amendment to the U.S. Constitution starts off with some words, which at first seem to imply a clear meaning: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The writers of our constitution chose the issue of religion to address first, which hints at the seriousness of religion-related issues in their society.
The importance of the role of faith hasn’t diminished more than 200 years later – debate over what is allowed and what is not continues on.
What academics and constitutional scholars know but many others don’t understand, is that often the establishment clause and free exercise clause contend.
This conflict results in arbitrary rulings that often seem contradictory.
Take this scenario recently brought up in England as an example: A nurse wears a necklace with a crucifix to work. She identifies with the Christian faith and claims that she has been wearing the necklace for 30 years.
The hospital trust claims that wearing any kind of necklace is prohibited for the purpose of safety. The nurse claims in return that many on staff have violated the “no-necklace” policy for years without reprimand.
Would the hospital be establishing a religion if it allowed her to wear a crucifix even though it is against dress code? Or would the hospital be infringing upon her freedom to practice Christianity if it decided to fire her on those grounds?
Most cases are analyzed on an individual basis. The courts have to determine which clause to uphold when they are in conflict – the establishment clause or the free exercise clause – by analyzing each situation separately.
Many times, courts will decide differently on cases that might look almost exactly the same, for technical reasons or a slight differentiation. This is why these cases can take years to solve and many times they end up in the Supreme Court.
But the courts’ decisions on many cases seem to be subjective: Many cases have troublingly arbitrary and unpredicted outcomes. The founding fathers have left us in a state of confusion, even though their intent was clear.
This issue is nowhere near universal consent and we must continue to challenge the establishment because for all we know the most facially neutral law could be ruled unconstitutional, or vice-versa.
Last month this issue was again brought to light nationally when some high school football students were baptized at a voluntary school trip to a church service in Kentucky.
A high school football coach “took about 20 players on a school bus late last month to his church, where nearly half of them… were baptized.” Apparently, the school district’s superintendent was there and did not object. The coach claimed that being baptized would bring the team together.
None of the students were given permission forms to have their parents sign and many of them were baptized without the knowledge of their parents, even though the church’s pastor “said that he requires minors to obtain their parents’ consent to be baptized.”
Even though the pastor knew that the kids belonged to a high school football team, in his defense he claimed: “Sometimes 16-year-olds look like 18 years. We did the best we could.”
But how can anyone assume that every high school student is 18 years old? Most students don’t turn 18 until their senior year of high school or later. It’s like assuming anyone in college is at least 22 years old.
Of course, the real issue of concern is not why the pastor baptized these students. The issue is whether or not the school district was establishing a religion by using a school bus and a school event as an opportunity to baptize students.
The necklace case seems harmless enough: if the hospital allowed other staffers to wear necklaces in the past, then the crucifix necklace should be allowed.
But some cases are easier to judge than others: It seems to me that the coach and pastor were both pushing their religion on the students.
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I agree that several rights granted to us by the US constitution sometimes come into conflict and I think that the author did a good job explaining some of the problems that can occur due to that conflict.
The problem I have with this debate is that often people try and argue that there must be no “God” in school which I find ridiculous. Has no one ever read the Declaration of Independence or other Founding documents? I do believe though that no “Religion” should be pushed on anyone. I think this is the main difference is that “God” and “Religion” are two separate things. One is completely ok in the public arena (ex. Founding documents, Pledge of allegiance, etc) while forcing one religion on anyone is not.
Now in regard to the football coach’s actions, yes, he could have done more to keep any controversy from happening. The following are a few ways that this situation could have been bettered.
1. Always get parental permission. Just because liberals feel they can force our children to learn anything they want and never ask our permission does not mean that conservatives should act like them. If we want liberals to ask for parental consent then we should as well.
2. As long as the trip was not paid for by public funds I think it is ok. Many of our public places (such as schools) are open to all groups (including religions) by law. Look at a high school on Sunday and you’ll likely see quite a few cars there. That is most likely due to a church that meets there (I know for a fact that a church used Durango HS for religious gathering on Sunday when I was in HS). So I don’t have really have any problem with a public group using public property for their activity as long as they pay for it.
3. I think it would be hard to say that the pastor and the football coach were pushing their religion on the high schoolers as it was a voluntary field trip and at least half of the kids there (voluntarily) did not get baptized. I would say it is much worse when a teacher holds a captive audience of students and then rants about how there is no God (that’s happens a lot more than people talk about, happened to me) or argues that evolution is absolutely true without stating that it is a theory and so is only an educated guess at best. (I’m not saying that some evolution does not exist, I believe there is evolution intraspecies [which has been proved] but I do not believe that man came from a couple amino acids that decided one day to form a protein and then a organism, etc.[which has not been proved]).
I believe that schools should be objective learning centers. They should not be used to indoctrinate students as many teachers even here at UNLV seem to want to do. (Ex. when a teacher pushes certain beliefs on students and pushes the beliefs of a certain political party [Democrat] on students that is wrong, once again this happened to me at UNLV).
To the above poster, the problem is that God is synonymous with religion. In other words, you can’t have one without the other. One who is religious will undoubtedly believe in some form of a God, and one who believes in a God is, by this definition, religious. Therefore, God cannot be taught in school, according to our founding fathers who stipulated a separation of church and state, because teaching about God is teaching about religion.
I’m curious as to why your first example occurs in England when discussing the United States constitution?
It’s just used as an example of a situation that might be perfectly appropriate and might easily come up in the U.S.
Hi Sam P,
First, I have to disagree with your assertion that God and Religion must be connected. Have you not seen the hundreds of non-denominational churches that are all over the world? Or have you not met any of the millions of people who believe in God and yet don’t go to church or consider themselves part of any religion?
Second, if our Founding Fathers wanted to make it illegal to talk about God in government then why did they include references to God in the Declaration of Independence? Why did they have a prayer said at the beginning of congress (the first one being in 1774 and continues to this day)? Why did our Founding Fathers also speak of God in their own speeches and while they were President? http://www.loc.gov/exhibits/religion/rel06.html
Also according to a US Supreme Court decision, Marsh v. Chambers, prayer at the beginning of a legislative session is constitutional. http://www.oyez.org/cases/1980-1989/1982/1982_82_23/
I think a more accurate way to describe the Founding Fathers intent would be to say that they did not want to establish a religion (such as the Church of England) but wanted to allow, even promote, the use of God and morals in our government. John Adams even went as far to say that “Our constitution was made for a moral and religious people; it is wholly inadequate for any other.” http://quotationsbook.com/quote/15645/
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