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The First Amendment and religious freedom


Here is the First Amendment in full:

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.

Commentators tend to state that religious freedom is protected by the establishment and free exercise clauses of the First Amendment. For example the website 1 for All, says in its FAQ:

5. How does the First Amendment protect religious liberty?
It protects religious liberty through the establishment clause and the free exercise clause. The establishment clause — “Congress shall make no law respecting an establishment of religion” — provides for separation between church and state. The free exercise clause — “or the free exercise thereof” — means that individuals can hold whatever beliefs they wish on religion or nonreligion and to freely practice those beliefs.

While this is certainly true, it’s not the whole truth. These two clauses certainly explicitly protect religious freedom; all the other clauses, to some extent, implicitly protect religious freedom.

To further discuss this, I’ve parsed the First Amendment into its separate clauses, which I discuss separately. (Note that parsing the First Amendment is a non-trivial exercise and there is at least one other parsing that I considered – if you disagree with my parsing below, I’m most interested in hearing your version.)

Congress shall make no law respecting an establishment of religion

One of the two clauses explicitly protecting religious freedom.

Congress shall make no law prohibiting the free exercise of religion

One of the two clauses explicitly protecting religious freedom.

Congress shall make no law abridging the freedom of speech

Nowadays, when we talk about freedom of speech, we often think of freedom of political speech, but free speech is required for the practice of most religions. Free speech protects the right to preach, to pray aloud, to recite creeds and simply to state one’s religious beliefs.

Congress shall make no law abridging the freedom of the press

Nowadays, when we talk about the press there is almost an implicit assumption that we are talking about the Fourth Estate, that is newspapers and other journals. The framers of the Bill of Rights certainly saw a free press as a protection against tyranny. For example, George Mason in his Master Draft of the Bill of Rights stated “the Freedom of the Press is one of the great Bulwarks of Liberty”.

However the term “press” has a wider meaning, it encompasses the printing press and also applies to any form of publishing establishment.

A free press is required for the printing of religious texts. Restriction of the press has been used to restrict the freedom of religion, and the framers of the Bill of Rights would certainly have been aware of this. For example:

In 16th century England the Tyndale Bible, the first mass produced English translation of the Bible, was banned. Tyndale was arrested by church authorities, tried for heresy, strangled and burnt at the stake.

In 1668, after writing The Sandy Foundation Shaken (a text espousing his Quaker views) William Penn was charged for publication without a license and imprisoned in the Tower of London.

Congress shall make no law abridging the right of the people peaceably to assemble

Nowadays, when we think about the right to assemble, we normally think of political assembly and in particular the right to protest. But we shouldn’t forget that the practice of most religions involves peaceful assembly. Religious persecution has often been carried out by breaking up religious meetings, prosecuting those involved in said meeting, or banning such meetings. For example:

In 1662 John Browne was arrested was arrested on orders of Peter Stuyvesant, Director-General of the colony of New Netherland (now New York) for allowing a Quaker meeting in his house.

In England the Conventicle Act of 1664 forbade religious assemblies of more than five people outside the Church of England.

In 1670 William Penn was arrested, accused of preaching before a gathering in the street. Penn had deliberately provoked the authorities in this way to test the validity of the then new law against assembly.

Congress shall make no law abridging the right to petition the Government for a redress of grievances

What’s this about then? It seems almost unrelated to the other clauses.

In December 1657 by a group of citizens from the town of Flushing (now part of Queens, New York) petitioned Peter Stuyvesant, protesting against his persecution of Quakers. None of the 30 signatories of the petition were Quakers themselves. This petition became known as the
Flushing Remonstrance. Stuyvesant arrested those who presented the document to him, and forced the signatories to recant. Edward Hart, the town clerk, and Tobias Feake, sheriff of Flushing, refused to recant, and spent over a month in prison.

Nowadays we tend to think about the right to petition as a means of achieving political aims and as a means of protecting public participation in government, however petitions have historically been used to protest against religious persecution.

In summary

Every single clause of the First Amendment protects religious liberty. Removal of any of these clauses would open the door to a form of religious persecution.

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  1. adamhannan
    Aug 12, 2010 at 16:46 | #1

    Thanks for providing context to the First Amendment. I appreciate your post.
    I didn’t know William Penn was locked up… interesting.

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