NOVEMBER 2, 2000  

Individual Right
First Amendment Guarantees Freedom From Religion, Not Just Freedom of Religion

        By John Burton
        When Joseph Lieberman said while campaigning in Michigan that "the Constitution guarantees freedom of religion, not freedom from religion," he revealed that the Democratic presidential ticket, no less than the Republican, is hostile to the democratic traditions on which this nation was founded.
        As disciples of the Enlightenment and dedicated rationalists, the Constitution's framers viewed the injunction against government support of any religious ideology as foundational for the new democracy. They demonstrated the importance of the prohibition against the establishment of religion by placing the Establishment Clause first in the Bill of Rights.
        The Establishment Clause grew out of the political revolution that accompanied the armed struggle for independence from England. Even though many early settlers fled Europe because of compulsory support for government-established churches, these same practices continued in the colonies. With the declaration of political independence from England in 1776, a wave of Enlightenment-inspired legislation swept through the former colonies. James Madison drafted and pushed through Virginia's Declaration of Rights, the first official legislative pronouncement that freedom of conscience and religion are inherent rights of the individual. As a result, on Jan. 1, 1777, the Virginia Episcopalian Church was denied its tithes.
        After the military defeat of England, the Virginia Episcopalian Church sought to renew compulsory support, but was met with protests from other sects. Deals were made. In 1784, the Virginia Legislature proposed the Assessments Bill, which imposed a tax to support religious education, but let each taxpayer decide which church was to receive it. In that way, the Assessments Bill was very much an assertion of freedom of religion, but not freedom from religion.
        Madison opposed this bill because it placed a government imprimatur on religion, violating the inherent rights of people to determine their own beliefs free of governmental interference. In his famous "Memorial and Remonstrance Against Religious Assessments," he explained that the "Religion ... must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men."
        Accordingly, "in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance." Madison wrote that "Rulers who are guilty of such an encroachment" are "tyrants," and "people who submit to it ... are slaves." He also explained that government sponsorship of religion violated "that equality which ought to be the basis of every law." He wrote, "If 'all men are by nature equally free and independent,' all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an 'equal title to the free exercise of Religion according to the dictates of conscience.'"
        The "Remonstrance" leaves no doubt about the importance Madison attributed to defeating the Assessments Bill.
        So potent was Madison's "Remonstrance" that instead of enacting the Assessments Bill, the Virginia Assembly passed Thomas Jefferson's A Bill for Establishing Religious Freedom. This historic law provided "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened, in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief."
        The Supreme Court has written often that the Establishment Clause is itself the product of the "Remonstrance," and must be read in the light of it. Only by sweeping away the history of this critical advance in the development of American democracy can Lieberman and others of his ilk maintain that the Constitution does not guarantee "freedom from religion."
        The Supreme Court has not always been at the forefront of defending democratic rights, but it usually echoes the spirit of Madison's "Remonstrance."
 Everson v. Board of Education, 330 U.S. 1 (1947), is the first Supreme Court decision applying the Establishment Clause to states. Although the court upheld 5-4 a state subsidy of school transportation, including religious schools, Justice Hugo Black's majority opinion still reaffirms Madison's freedom of thought. "Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'"
        Justice Wiley Rutledge's dissent argued that the majority was not going far enough. "The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."
 Everson, the Supreme Court will not tolerate any governmental preference for religious views. For example, Black, writing for a unanimous court striking down a Maryland law requiring notaries public to affirm a belief in God, stated that "neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." 
        One year later, the court invalidated a New York law mandating a "nondenominational" prayer at the beginning of the school day. Again, Black wrote for the court: "The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs."
        In 1968 a unanimous Supreme Court ruled unconstitutional an Arkansas law prohibiting the teaching of evolution in public schools. Justice Arthur Goldberg made clear that the First Amendment guarantees "freedom from religion" as well as "freedom of religion." "Government ... must be neutral in matters of religious theory, doctrine, and practice. ... The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."
        More recently, in
 Wallace v. Jaffree, 472 U.S. 38 (1985), Justice John Paul Stevens explained, "Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among 'religions' - to encompass intolerance of the disbeliever and the uncertain."
        Even the current Supreme Court, the most reactionary since before World War II, has refused to back down on the court's protection of "freedom from religion." Just this year, in
 Santa Fe Independent School District v. Doe, the court ruled that a public high school cannot allow "voluntary" student prayers over its loudspeaker system at football games.

        John Burton
 is a Pasadena civil rights attorney.