First amendment confusion

One of the most significant court issues in a long time revolves around the meaning of the First Amendment to our Constitution. The First Amendment says, “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 peacefully to assemble, and to petition the Government for redress of grievances.”

The First Amendment has two provisions that directly affect religion in the United States: The Establishment Clause and the Free Exercise Clause. The first Clause clearly means that the Government cannot establish a national religion such as the Church of England. Today, what constitutes an “establishment of religion” though is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon versus Kurtzman in 1971. Under the Lemon test, the government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of a “public morals” or a “compelling government interest.” Although various courts have been involved in interpreting what all this means, the U.S. Supreme Court normally has the final say in the matter. Recently, the Supreme Court responded to an appeal from the courts in Florida to arbitrate the matter. Obviously,

this is a very difficult area, and the Supreme Court ultimately decided to send the issue back to the lower courts for more deliberation and direction. Some members of the Supreme Court also wrote that the so-called Lemon test was now obsolete.

So, what’s at stake here? Well, for instance, the state of Arkansas (and other states as well) is deliberating the possibility of providing funding for private schools, many of which are religious in nature. Are those efforts promoting the “establishment of religion?” Or, consider the

chaplaincy. Although the military has its own guidelines regarding chaplaincy, there are hundreds of other forms of chaplaincy in the United States, including law enforcement. No one really objects if someone wants to help someone, but it gets sticky if religion is involved. How do you separate a chaplain from the basic religious calling that led him or her into the chaplaincy in the first place? Over the years, the International Conference of Police Chaplains has attempted to comply with the Lemon test, but there has been difficulties.

The most obvious attempt to conform with the law is to restrict chaplains from imposing their religious convictions upon people they help unless they are invited to share them.

The Lemon test also affected the Baccalaureate services in schools, initially eliminating prayers, but was later adjusted to allow student prayers if the audience was not compelled to participate — i.e. requiring those present to stand for the prayer. Since the court rulings scared school boards, it effectively eliminated school sponsored Baccalaureate services in the United States at the insistence of a small minority.

We may take these issues a little further. The current case in Florida involves an atheist who objected to being exposed to someone expressing his or her religious convictions, the argument being that a religious person may not in any form or fashion practice religion that another person does not want to hear or see practiced. The U.S. Supreme Court recently supported athletes who wish to say a prayer privately before a game, but that decision has a different twist than the court case in Florida.

A part of the confusion is centered in what personal rights an atheist has to force others to conform to his or her understanding of God or the absence of God. Does a religious person have the same right to impose his or her personal beliefs upon an atheist who is attempting to convert others to his or her religious orientation, and attempt to prevent the atheist from becoming involved in a mixed society? Where is the middle ground? Too often, it is the extreme minority that attempts to force its positions upon the rest of society, and courts do not recognize that the majority also has some of those same rights and privileges guaranteed by the First Amendment.

Apparently, the meaning of the First Amendment is very difficult to both fully understand and to execute. Thus, chaplains, religious schools, and even religious hospitals are watching this case from Florida very closely; and it also bears close attention by the rest of society as well. We do not want its resolve to restrict our right to religious freedom nor the right of any person in our country to pursue his or her own convictions.

Robert Box has been a law enforcement chaplain for 30 years. He is a master-level chaplain with the International Conference of Police Chaplains and is an endorsed chaplain with the American Baptist Churches USA. He also currently serves as a deputy sheriff chaplain for the Benton County Sheriff’s Office. Opinions expressed are those of the author and not the agencies he serves.