# Correct my understanding of the First Amendment **URL:** \ **Category:** Great Debates\ **Created:** [March 13, 2014, 5:46pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631 "2014-03-13T17:46:03Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [March 13, 2014, 9:28pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/21 "2014-03-13T21:28:19Z")
> [@Little\_Nemo](#): > > There is a clear legal argument that can be made. > > The government enacts a law, which everyone agrees it has the authority to do. This law apples to everyone. For the record, the regulation at the center of the Little Sisters case is not a law; Congress never voted on it. It’s a federal rule created by unelected bureaucrats. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [March 13, 2014, 9:35pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/22 "2014-03-13T21:35:22Z")
> [@ITR\_champion](#): > > For the record, the regulation at the center of the Little Sisters case is not a law; Congress never voted on it. It’s a federal rule created by unelected bureaucrats. Did a law give those bureaucrats that ability? Also, boo fucking hoo. This is the stupidest issue of freedom of religion ever. The rule is X. Sign a paper stating you’re exempting yourself religiously and you aren’t subject to it. _SIGN A PAPER!!!11 OMZG me rights!!11_ ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [March 13, 2014, 9:39pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/23 "2014-03-13T21:39:27Z")
> [@Little\_Nemo](#): > > There is a clear legal argument that can be made. > > 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. [This article](http://www.ozarksfirst.com/story/affordable-care-act-religious-exemptions-explained/d/story/sUg-4udrMU6hORloH5HXfA) explains that these churches already have long-standing exemptions from _federale_ mandates. Basically, if you’re exempted from paying Social Security taxes, you’re exempted from the ACA. “1. The government’s action must have a secular legislative purpose; (Purpose Prong)” - There is a secular purpose to the law prohibiting the slicing a 16-year-old virgin girl’s throat that has absolutely nothing to do with suppressing Satanic Cults. The free exercise of this religious practice will land one in prison, rightfully so. All the Satanist gets here is the right to believe human sacrifice should be legal, the right to freely say they should have this right and to partition the government for redress of this grievance. I have very distinct memories of receiving grape juice at communion when a child, and the adults receiving wine. That hypocrisy alone drove me to Pastafarianism. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [March 13, 2014, 9:42pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/24 "2014-03-13T21:42:08Z")
> [@ITR\_champion](#): > > For the record, the regulation at the center of the Little Sisters case is not a law; Congress never voted on it. It’s a federal rule created by unelected bureaucrats. Really? Who created those jobs for bureaucrats, and gave them the power to write and enforce regulations? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 13, 2014, 9:57pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/25 "2014-03-13T21:57:54Z")
> [@Little\_Nemo](#): > > There is a clear legal argument that can be made. > > 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. This argument says that the First Amendment has no force and means nothing. People who exercise their religious rights are always acting on behalf of their own religion, and the government’s recognition of that specific case is always going to be singling out the religion. Besides, the government does not say that some people are immune to a specific law. The Constitution says that Congress may not make any law that interferes with the practice of anyone’s religion. The Little Sisters are not claiming that they alone are exempt from the law. They are saying that all US citizens are exempt from those aspects of the law that violate the free exercise clause of the First Amendment. If the Obama administration wants this law to be licit, and not violate the First Amendment, they need to allow for religious objections somewhat like the draft used to allow for conscientious objections. Conscientious objection was not an establishment of religion either, because it applied to any citizen, religious or not, who could not serve in combat without violating his right to practice his religion. The point about how non-state actors cannot, by definition, violate the First Amendment is trivially true as well as obvious. Anti-religious types, and those who get itchy at the suggestion that there might be some force with greater authority than the nanny state, tend to make this mistake, but fortunately most people have better sense than that. Regards, Shodan ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 13, 2014, 10:00pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/26 "2014-03-13T22:00:31Z")
> [@ITR\_champion](#): > > Why would that matter? The First Amendment only limits Congress; it does not put any limits on what any private organization can do. It limits which actors Congress can regulate. Congress can’t tell the priest what to do at the pulpit, but it can regulate the administration of the priest’s hospital. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 13, 2014, 10:03pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/27 "2014-03-13T22:03:41Z")
[QUOTE= Little Nemo] 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. [/QUOTE] Perhaps it will clarify things if you realize that the Obama administration’s attempts are to establish a religion. They are trying to establish a version of Roman Catholicism that does not object to contraception, and interfere with the religious practices of a version that does. As stated in the original thread, it appears mostly to be a power play by bureaucrats who cannot bear the notion that the First Amendment gets to tell them to go pound sand, but the principle underneath is sound. In areas of religious practice, the government does not get to tell its citizens what to do. Regards, Shodan ---
**Author:** ![WillFarnaby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/willfarnaby/32/514_2.png) [@WillFarnaby](https://boards.straightdope.com/u/WillFarnaby)\ **Post date:** [March 13, 2014, 10:33pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/28 "2014-03-13T22:33:23Z")
> [@John\_Mace](#): > > It limits which actors Congress can regulate. Congress can’t tell the priest what to do at the pulpit, but it can regulate the administration of the priest’s hospital. When you say “it can” do you mean it can because it has the strength of the military and armed government bureaucrats or it can because it has unilaterally declared itself the final arbiter of its own powers? Or both? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [March 13, 2014, 10:46pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/29 "2014-03-13T22:46:57Z")
> [@Shodan](#): > > In areas of religious practice, the government does not get to tell its citizens what to do. Polygamy is still illegal, isn’t it? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 13, 2014, 11:08pm UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/30 "2014-03-13T23:08:18Z")
> [@Shodan](#): > > This argument says that the First Amendment has no force and means nothing. No, it just means that people who demand simple answers aren’t going to find them. ---
**Author:** ![Punoqllads](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)\ **Post date:** [March 14, 2014, 12:38am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/31 "2014-03-14T00:38:33Z")
> [@Shodan](#): > > Perhaps it will clarify things if you realize that the Obama administration’s attempts are to establish a religion. They are trying to establish a version of Roman Catholicism that does not object to contraception, and interfere with the religious practices of a version that does This being Great Debates, I’m sure you’re going to post citations real soon now. ---
**Author:** ![Jragon](https://avatars.discourse-cdn.com/v4/letter/j/e19b73/32.png) [@Jragon](https://boards.straightdope.com/u/Jragon)\ **Post date:** [March 14, 2014, 12:49am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/32 "2014-03-14T00:49:36Z")
The thing is, we limit the “free expression of religion” all the time. I **highly** doubt a religious institution that lived hardcore by Shariah Law or the laws in Leviticus in the US would be afforded real legal protection. Since the law in question already has a religious exception, we’ve decided as a legislative body that in this specific case public good can be curtailed for religious exemptions, so that’s settled. Now the question is “to what degree is a religious-affiliated organization afforded the same types of exceptions as an actual religious institution?” However, let’s not act like “free expression of religion” is a magic phrase, when it comes down to it, there’s a level of scrutiny where religious freedom can be, and is, routinely denied. Right now we’re determining whether for **this** specific public good, whether or not it’s worth it to allow or deny an exemption to an affiliated organization. I don’t think you can make a hard argument either way and it ultimately comes down to a complex soup on your feelings about religious institutions, your feelings on the benefits and ills of mandated contraception coverage, and the precedence you feel this all will set. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 14, 2014, 1:10am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/33 "2014-03-14T01:10:27Z")
> [@ITR\_champion](#): > > 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”. Cite? We’d probably be a lot more impressed with your determination of what the framers of the Constitution had in mind if you demonstrated a greater understanding of the history of constitutional law. I’m re-reading the original thread, and I’m not 100% sure I understand the initial complaint. Is it against the Nuns’ religion to fill out a form that says they object to contraceptive coverage? That seems like a fairly twisted sort of logic. > [@Shodan](#): > > If the Obama administration wants this law to be licit, and not violate the First Amendment, they need to allow for religious objections somewhat like the draft used to allow for conscientious objections. Isn’t that exactly what the form that the nuns are refusing to sign is? ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 14, 2014, 1:17am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/34 "2014-03-14T01:17:29Z")
> [@Jragon](#): > > Since the law in question already has a religious exception, we’ve decided as a legislative body that in this specific case public good can be curtailed for religious exemptions, so that’s settled. Now the question is “to what degree is a religious-affiliated organization afforded the same types of exceptions as an actual religious institution?” However, let’s not act like “free expression of religion” is a magic phrase, when it comes down to it, there’s a level of scrutiny where religious freedom can be, and is, routinely denied. Right now we’re determining whether for **this** specific public good, whether or not it’s worth it to allow or deny an exemption to an affiliated organization. We’re actually arguing over something far sillier, if I understand it correctly. According to the original cited [injuction](http://legaltimes.typepad.com/files/13a691-little-sisters-injunction-opp.pdf) > [@](#): > > the employer-applicants here are eligible for religious accommodations… > > \ > > They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan. The nuns are not arguing that their First Amendment rights protect their desire to not provide contraception. No one is apparently disputing that. They are arguing that their First Amendment rights protect their desire to not sign a form that _says_ that they are a religious organization that objects to providing contraception, which is a requirement of not providing contraception. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 14, 2014, 1:27am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/35 "2014-03-14T01:27:09Z")
> [@Shodan](#): > > Perhaps it will clarify things if you realize that the Obama administration’s attempts are to establish a religion. They are trying to establish a version of Roman Catholicism that does not object to contraception, and interfere with the religious practices of a version that does. Well, if this is the case, then Congress cannot take any action to stop it. If, as you’re claiming, Obamacare is a religion then Congress is explicitly forbidden by the First Amendment from interfering with the free exercise of it. You’ve just declared that opposing the ACA is unconstitutional. ---
**Author:** ![Jragon](https://avatars.discourse-cdn.com/v4/letter/j/e19b73/32.png) [@Jragon](https://boards.straightdope.com/u/Jragon)\ **Post date:** [March 14, 2014, 1:28am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/36 "2014-03-14T01:28:28Z")
> [@iamthewalrus\_3](#): > > We’re actually arguing over something far sillier, if I understand it correctly. According to the original cited [injuction](http://legaltimes.typepad.com/files/13a691-little-sisters-injunction-opp.pdf) > > The nuns are not arguing that their First Amendment rights protect their desire to not provide contraception. No one is apparently disputing that. They are arguing that their First Amendment rights protect their desire to not sign a form that _says_ that they are a religious organization that objects to providing contraception, which is a requirement of not providing contraception. …huh. Carry on then, that is exceptionally silly. If they end up winning and don’t have to fill out a form, can I convert to Catholicism and say paperwork is against my religion? ---
**Author:** ![UTejas](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UTejas](https://boards.straightdope.com/u/UTejas)\ **Post date:** [March 14, 2014, 1:32am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/37 "2014-03-14T01:32:47Z")
> [@Shodan](#): > > Besides, the government does not say that some people are immune to a specific law. The Constitution says that Congress may not make any law that interferes with the practice of anyone’s religion. This is definitely not what the Constitution says. The [Lemon test](http://en.wikipedia.org/wiki/Lemon_v._Kurtzman#Lemon_test) was already posted. In case you don’t want to click. That test is: [ul] [li]The government’s action must have a secular legislative purpose; (Purpose Prong)[/li][li]The government’s action must not have the primary effect of either advancing or inhibiting religion; (Effect Prong)[/li][li]The government’s action must not result in an “excessive government entanglement” with religion. (Entanglement Prong)[/li][/ul] Now you can disagree about whether or not requiring Little Sisters of the Poor to sign a form that says they are exempt from the ACA contraception requirement meets all three of those criteria. That’s what the whole court case is about. The Constitution definitely allows for laws that interfere with people’s religion. Anyone can have any religious beliefs. If we exempted everyone from any law that interfered with whatever they claimed their beliefs to be, then no law would have any force. As long as the primary purpose of a law has a legitimate purpose, isn’t designed to advance or restrict religion, and isn’t overly entangled with religious beliefs, then the law is valid. ---
**Author:** ![Steely\_Dan\_Fan](https://avatars.discourse-cdn.com/v4/letter/s/9de053/32.png) [@Steely\_Dan\_Fan](https://boards.straightdope.com/u/Steely_Dan_Fan)\ **Post date:** [March 14, 2014, 5:24am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/38 "2014-03-14T05:24:02Z")
> [@ITR\_champion](#): > > Why would that matter? The First Amendment only limits Congress; it does not put any limits on what any private organization can do. Its literal text is irrelevant. What matters is the principle it enshrines: ensuring that people can express their views openly, without fear. The literal text merely represents a late eighteenth-century understanding of the possible sources of repression against religious liberty. Now that we know that non-state actors can have just as much of a deleterious effect as the state can, however, we’re perfectly justified in limiting the acts non-state actors can take against freedom of religious expression too. The principle is more important than the literal text, which the critical-thought-free such as the OP want to decontextualize and thus render meaningless. Sure, we can amend it so that the literal text reflects the principle as its real-world implications are understood. Or, we can say “fuck you” to the tyranny of the past, and start doing the right thing _right now_. Moral, freedom-loving people will choose the latter. Substance is more important than form. ---
**Author:** ![Steely\_Dan\_Fan](https://avatars.discourse-cdn.com/v4/letter/s/9de053/32.png) [@Steely\_Dan\_Fan](https://boards.straightdope.com/u/Steely_Dan_Fan)\ **Post date:** [March 14, 2014, 5:27am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/39 "2014-03-14T05:27:13Z")
> [@Shodan](#): > > The Constitution says that Congress may not make any law that interferes with the practice of anyone’s religion. Actually, no, the Constitution in fact does _not_ say that the state cannot prohibit Joe Bob Jim Jack from executing seventeen virgins every hour at half-past in order to appease the Dread Arch-Demon Blagoblagabat so that he won’t destroy the world in the final phase of the Great Cosmic Battle of Plamagen. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [March 14, 2014, 6:14am UTC](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631/40 "2014-03-14T06:14:37Z")
> [@Steely\_Dan\_Fan](#): > > Actually, no, the Constitution in fact does _not_ say that the state cannot prohibit Joe Bob Jim Jack from executing seventeen virgins every hour at half-past in order to appease the Dread Arch-Demon Blagoblagabat so that he won’t destroy the world in the final phase of the Great Cosmic Battle of Plamagen. Damn. We’re all doomed. (Meanwhile, I was so hoping to strangle a bunch of strangers along the road for the honor of Kali.) [Previous page](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631.md?page=1) [Next page](https://boards.straightdope.com/t/correct-my-understanding-of-the-first-amendment/683631.md?page=3)