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.
Recently there was a thread about the case involving the Little Sisters of the Poor and the Obama Administration. That thread opened up a discussion about clashing interpretations of the First Amendment, hence this thread where everyone is invited to correct my interpretation.
In my interpretation, the First Amendment only restricts the laws that the government can make. It says so quite clearly. It does not restrict what anyone other than the government can do. Hence it’s logically impossible for anyone other than the government to violate the First Amendment.
Some people don’t seem to get this. For instance, people on this and other message boards have claimed that having rules for what can be posted and moderators to enforce those rules is against the First Amendment. They’re wrong; of course. Private institutions can have whatever rules governing speech they want, within their own property or events.
Defenders of the Obama Administration in that thread said things like this:
To me, it looks like the defense of the Obama Administration rests on the same sort of childish misunderstanding as those who say that message board policies violate the First Amendment. So which side is right?
Since you didn’t provide a link, would this have something to do with conditions that the federal government imposes on those that wish to receive federal funds, or is it just a case of a private group with discriminatory policies?
First of all, it depends on whether or not the religious institution is acting as an actual religious institution, or if they are acting as something else. When the Catholic Church sets up a hospital, are they really acting as a religious organization? (I would say yes, but it’s certainly debatable and I wouldn’t call the other side’s argument “childish”.)
It also depends on how one defines “establishment”, which these days means the Lemon Test. I don’t agree with that test, but it is currently the law of the land.
It’s not logically impossible for anyone other than the government to violate the First Amendment. There are state actors who are not the state. I can’t comment on this childish misunderstanding because you didn’t say what it was.
Thank you. So this is basically the same thread with even less content provided by the OP…such as the fact that the great indignity those poor nuns suffered was that the federal government required them to sign a form stating that they were exempt because they were a religious organization.
The First Amendment has been held to apply to states via Incorporation through the Fourteenth Amendment. More information.
The very first case in which that precedent was set, Everson v. Board of Education involves a local school board reimbursing religious schools for student travel expenses.
In that case, the law was found constitutional because it applied equally to all students and all schools, and did not solo out the religious ones.
I don’t know exactly what the issue with the nuns is, or what the misunderstanding is, but if they’re receiving money from any government under any state or federal law, then their actions can raise First Amendment issues.
This isn’t a debate. It’s a passive-aggressive pitting.
You already know that non-state actors aren’t subject to the First Amendment, and that those quotes taken literally would suggest they are. So what’s the debate? There isn’t one. You just want to crow about having found some people whose loose talk is literally false.
There are two parts of the first amendment with regard to religion. The first is that the state must not make laws that prevent the practice of religion, which is what you seem to be most concerned with, but the second is that the state should not establish a religion. Or in other words give special treatment to one religion over another. A statute that says that Catholic Churches are immune from zoning laws is just as bad as one that imposes additional zoning requirements on Catholic Churches. In this case the organization is trying to carve out an exemption to the ACA for itself.
As well as the first amendment there are also non-discrimination statues that do affect non-governmental organizations. I don’t believe a Muslim factory owner can require that all of his employees pray to Allah 3 times a day, or a Jewish one to require his employees to remain Kosher. Similarly, the nuns requiring their employees to not buy subsidized birth control, seems to me to be making demands on their personal life that are extraneous to their job performance.
That said, I do agree that saying the nuns are violating their employees first amendment rights is a bit of a stretch since I don’t think there is a religion that demands use of contraception.
By a strict theory of enumerated powers yes, the First Amendment only applies to the government. But a laissez faire freedom of private parties to discriminate has been effectively dead since the Civil Rights era, when it was held that regardless of legal theory, if minorities were in practice discriminated against then they were being deprived of full citizenship. This was a tremendous change in the very nature of what’s considered “fair” in our society.
Not at all. The Little Sisters of the Poor have filed suit, seeking their religious freedom from a federal rule which requires them to violate their religious beliefs. The federal government could simple cancel the rule in its entirety and then no one’s religious beliefs would be violated.
Imagine, for instance, that the Obama Administration made a rule saying that all employers were required to serve pork, and an Orthodox Jewish employer filed suit seeking his religious freedom. Would that Orthodox Jewish employer be seeking an unconstitutional “special treatment”? Or would be merely be seeking his constitutional rights?
As it is, the Obama Administration wrote the rule so that religious institutions would not be required to have contraception coverage; however, they defined “religious institutions” so narrowly that some religious institutions weren’t included. The Little Sisters of the Poor are among those who weren’t included. But if we took your argument seriously, the rule as written exempting some religious institutions would be unconstitutional.
And that’s not the only example of a religious exemption in the PPACA. Some groups are exempted from the law in its entirety, including Amish and Mennonites. This, of course, follows a tradition of religious exemptions applying everything from military service to Social Security, dating back centuries. Is every such exemption unconstitutional?
The government enacts a law, which everyone agrees it has the authority to do. This law apples to everyone.
The government then says that some people are immune to this law because of their religion. That’s the government giving a benefit to some people because of their religion. And the government singling out one religion for a benefit would be a violation of the establishment clause.
There are two clauses in the First Amendment which define how the government must treat religion. One says the government cannot establish any religion and the other says the government cannot prevent the free exercise of any religion. Obviously there are going to be situations where these two clauses come into conflict. When that happens, the government has to find a balance between them.
But you can’t just pick the clause that supports your opinion and pretend the other clause has disappeared. You have to remember both clauses exist. It’s a balance between the two and being a balance means you can only go so far.
When the USA broke from England, the English had an established religion. Only members of the Church of England could hold office, vote, attended university and so forth. That’s what the framers had in mind when they prohibited Congress from making “an establishment of religion”. An establishment of religion is when the government bans or punishes the members of all religious groups but one.
You’re trying to invert the meaning of “establishment of religion”. According to you, if a group such as the Little Sisters of the Poor are free to practice their religion, that would be an establishment of religion, merely because one of their religious practices is now outlawed by the federal government.
But as we’ve seen, religious groups have been exempt from laws that infringe on their practices throughout American history. Is there any evidence that the framers of the Constitution thought this was an “establishment of religion”? Has American law ever treated it that way? Has the Supreme Court ever ruled that way? Is there any factual basis for your claim that allowing people to freely practice their religion becomes an establishment of religion, merely because it infringes on some federal rule?
