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Our Contentious First Amendment

By Sheila Suess Kennedy on September 30, 2013 in Civic Blog

We all know the stories about the Pilgrims landing at Plymouth Rock, the original settlement at Jamestown, and the subsequent colonization of the New World by the Puritans.  Most of us have heard of John Winthrop and his belief that America was destined to be the new Israel, the “Shining City on the Hill.” Legal scholar Frank Lambert has called those original settlers the “Planting Fathers,” to distinguish them from the men who would become our “Founding Fathers” about 150 years later.  Understanding the difference between the Planters and Founders is fundamental to understanding the Bill of Rights, the First Amendment, and the relationship between the Free Speech and Religion clauses.

The Continental Congress had drafted, and the legislative bodies of the several colonies had ratified, a constitution that would have been absolutely incomprehensible to their Puritan antecedents. A religious and intellectual paradigm shift had moved the country’s predominant—but by no means exclusive—worldview from that of a Christian Nation to that of a secular republic in a mere hundred and fifty years. The Enlightenment had generated what colonists called “the New Learning.”

The Planters and the Founders occupied dramatically different realities—and both of those realities continue to influence us today. America’s contemporary “culture wars” can be seen as a conflict between our present-day Puritans on the one hand—the biblical literalists—and the intellectual descendants of the Founders, who I call modernists. Literalists and modernists hold radically opposing views about the nature of morality and especially about the government’s responsibility for ensuring citizens’ moral behavior.

The Bill of Rights raises and answers an incredibly important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have, who you marry? In our system, government doesn’t get to decide these and other very personal matters. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves.

The Bill of Rights not only limits what government can do, it limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. The First Amendment ensures that a majority of your neighbors cannot vote to make you a Baptist or an Episcopalian; they also don’t get to dictate your reading materials or your political opinions. When people don’t understand that the Bill of Rights limits what majorities can vote to have government do, they often misunderstand court decisions that uphold the right of individuals to hold unpopular positions or unconventional beliefs. The courts are not endorsing the choices made by those individuals; rather, they are protecting the right of individuals to make their own choices.

As we all know, some of Americans’ most heated arguments are rooted in religion. This has always been the case, even in colonial times, when “religious diversity” mostly meant “different kinds of Protestant.” As we become more religiously diverse as a nation, it becomes even more important to understand the constitutional limits on the rules that government can impose.

When states misuse their authority to play favorites, to privilege some beliefs over others, people who do not share those privileged beliefs are relegated to the status of second-class citizens. Separation of church and state prevents adherents of majority religions from using government to force their beliefs on others, and it keeps agencies of government from interfering with the internal operations of churches, synagogues and mosques. As government becomes more pervasive, knowing where to draw the line between what is permissible and what is not becomes more difficult, making it even more important to understand the original purpose of the religion clauses.

As to that original purpose, there are few explanations better than the one offered by John Leland, an evangelical Baptist preacher who lived from 1754 to 1851. Leland had strong views on the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Sheila Suess Kennedy, J.D. is Director of the Center for Civic Literacy and Professor of Law and Public Policy in the School of Public and Environmental Affairs at Indiana University Purdue University at Indianapolis. Her scholarly publications include six books and numerous law review and journal articles. Professor Kennedy is a columnist for the Indianapolis Business Journal and a frequent lecturer, public speaker and contributor to popular periodicals.

This post is abridged from the author’s comments delivered at the Butler Freedom of Speech Freedom of Faith Seminar on September 24, 2013.