The First Amendment
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Speaking of the First Amendment:


Author Bruce T. Murray speaks to the Humanist Fellowship of San Diego/San Diego Secular Humanist Outreach

By Wilfredo W. Perez
President, San Diego Secular Humanist Outreach

What does the First Amendment mean?

The Humanist Fellowship of San Diego and San Diego Secular Humanist Outreach met June 4, 2011 at Point Loma Library to hear a presentation by local author and journalist Bruce T. Murray about his book, Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective. We had been eagerly anticipating this presentation for several months, and Bruce did not disappoint.

I introduced Bruce and informed the audience that he would speak on some of the issues discussed in his book, including the tension between the Establishment and Free Exercise Clauses of the First Amendment:

“Congress shall make no law respecting the establishment of religion, or prohibit the free exercise thereof.”

After reciting theses clauses to the audience, I gave an example of the tension between the two clauses: Is the government’s policy of providing chaplains to the military a violation of the Establishment Clause? Or would the government’s refusal to provide chaplains to the military be a violation of the Free Exercise Clause?

A young fan of Fred Phelps

Bruce began his lecture by informing us about a case concerning a Santee High School student who was a fan of Pastor Fred Phelps and his Westboro Baptist Church. These people are the ones who stage protests at funerals of fallen American soldiers. They contend that the deaths of our soldiers are God’s punishment for our tolerance of homosexuality. The student posted messages on her Facebook page that were anti-gay and supportive of the Westboro Baptist Church. Once the principal found out, she was suspended. Were the student’s First Amendment rights violated?

As Bruce was telling this story, I kept thinking about why I had never heard of this case, considering that I follow the news pretty closely. Then Bruce informed the audience that the case was fictional; it was the subject of an exercise in one of his law school classes. Well, he fooled us with that one! But the example was useful in illustrating First Amendment issues. In my view, the student’s First Amendment rights had been violated. I said that the true test of the First Amendment is whether we allow it to apply to speech we vehemently disagree with. Another audience member, a public school teacher, said that the government has the right to limit the speech of students to a certain extent.

Jim, one of our members (who actually lives in Santee), expressed concerns that he and his family could be subjected to violence and intimidation if he were to complain about religious teachings in the public schools there. This is a legitimate concern; I have heard of secular humanists in the South being ostracized and even being subjected to death threats for complaining about things such as school-sponsored prayers. It is sad that although we have freedom of speech in the U.S., some secular humanists have legitimate fears about expressing their viewpoints in their communities.

We talked about the “captive audience” concept in regards to the First Amendment. Public school children are considered a captive audience, whereas adults attending a meeting of their local city council are not. This is one reason that the Supreme Court has prohibited school-sponsored prayers in the public schools, whereas prayers are allowed at meetings of political bodies such as city councils. The reasoning is that attendees at meetings of political officials are not compelled to be there; they are free to leave the meetings.

Tax breaks for proselytizing

Some audience members expressed concern about religious groups that discriminate, yet receive tax-exempt status from the government. One of our members gave the example of the Mormon Church, which provided millions of dollars to the “Yes on Proposition 8” campaign in California to make gay marriage illegal. I thought this was an excellent point and mentioned that as recently as 1978, segregated private Christian academies fought tooth and nail in court to try to keep their schools all-white. In my view, NO religious organization should have tax-exempt status. Many conservative Southern Christians want tax breaks from the government for the purpose of perpetuating their personal religious views. As a society, why should we make this activity tax-exempt?

Gary, our former president (who was a minister in the Church of Christ for over three decades) said that from his experience, the vast majority of funds religious groups receive are spent towards efforts in recruiting others to the religion. Gary said that in the Church of Christ, only about 5% of the funds received were actually spent on helping people. Of course, when religious groups help others, there is often a caveat: the recipients of the help must often have to put up with proselytizing.

Gary also expressed concerns that religion causes divisiveness in our society. I completely agree. Every religion and denomination says theirs is the “true religion” and adherents of one religion are often intolerant of members of other religions or denominations. Gary told the group that he had a recent experience with feeling like an outsider. He was attending a rodeo in Del Mar and heard some of the other attendees making jokes and derogatory comments about President Obama and Nancy Pelosi. Well, Gary, let’s just say that a rodeo isn’t exactly the place where you’re likely to find a gathering of progressive individuals!

Another issue we discussed is when local governments direct protesters at an event a specific place to protest. This may seem like a good idea, but sometimes, the designated place is so far removed from where the event is taking place that it is questionable whether the protests have any impact. Are the First Amendment rights of protesters violated in such cases?

The case of conscience in early America

Bruce gave a brief overview of the case of Anne Hutchinson, an early American who stood trial alone in 1637, with no lawyer to defend her. She faced a panel of 49 powerful men. Hutchinson was accused of sedition. Her "crime" was expressing religious beliefs that were different from the colony's rulers. In the Massachusetts Bay Colony at that time, Hutchinson’s activities were against the law. She was found guilty and banished from Massachusetts Bay Colony. This case is yet another example of religion’s long history of oppressing women. Amidst this oppression, however, the idea of religious freedom grew. Hutchinson had not succeeded in changing the laws of her time. But her courageous actions helped set the stage for an America in which religious freedom was a reality.

We spent some time discussing the constitutionality of religious symbols on public land. From the secular humanist perspective, such symbols are clearly a violation of the First Amendment. However, governments such as the City of San Diego often try to save religious monuments such as crosses by transferring them to private land or claiming they are war memorials or something else.

Finally, Bruce discussed faith-based initiatives, a concept that really gets on the nerves of secular humanists. I pointed out that faith-based initiatives existed during the Clinton administration. But they really took off under George W. Bush. Bruce mentioned that Bush circumvented Congress by creating the White House Office of Faith-Based and Community Initiatives. I stated to the group that in my view, faith-based initiatives are a “slam dunk” violation of the Establishment Clause. As noted in Bruce’s book, the 1971 U.S. Supreme Court case Lemon v. Kurtzman established a three-pronged test to determine whether government actions concerning religion are constitutional:

  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.

If any of these three prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment. In my view, providing taxpayer dollars to faith-based groups advances religion and results in excessive government entanglement of religion. Faith-based initiatives SHOULD be unconstitutional. But the reality is that faith-based initiatives are thriving. Bruce said that a distinct line of demarcation between government and religion had been established in the past and that Bush had moved this line a significant distance towards religion. We agreed that the so-called “wall of separation between church and state” is not a brick wall and has become rather porous.

Bruce wrapped up his presentation at noon and received applause and thanks from an appreciate audience. My closing remark was that religious people should be happy about separation of church and state because this has allowed religion to flourish in the U.S. The U.S. is one of the most religious countries; there are more churches here than 7-11 stores. Contrast this to Scandinavian countries like Denmark and Sweden, which have official state churches that citizens support through their taxes, but those countries are among the least religious in the world and hardly anyone there goes to church on a regular basis.

During the presentation, we learned that Bruce is a Presbyterian. I was very impressed because neither his book nor his presentation showed any bias in favor of religion. Members, if you have not read Religious Liberty in America, I highly recommend that you do. It is a thoroughly researched, lucid and highly informative book on an important issue for the religious and non-believers alike.