VIOLATING THE ESTABLISHMENT CLAUSE IN ORDER TO PROTECT “RELIGIOUS FREEDOM”
JOCELYN CLAIRE YOUNG
Fifty-five years ago the Civil Rights Act of 1964 was passed. There had been some slow, but steady progress over the years to reduce the hate and discrimination towards disenfranchised groups. This demonstrated that our country was showing “evolving standards of decency that mark[ed] the progress of a maturing society (1).” Over the past two and one-half years we have started a slow unravelling of that previous progress due to political and religious encouragement of hate and discrimination towards minority individuals.
Our society has always had some form of hate and/or discrimination aimed at vulnerable populations. However, this current White House Administration is encouraging and promoting hate and discrimination towards many disenfranchised groups of people: women, illegal immigrants, minorities (including specific religious groups) and LGBT individuals (with a special focus on transgender persons). This hate and discrimination is driven by the encouraged infiltration of the extreme religious right into the administration’s policy making.
Religion has been used over the centuries as a means to promote hate and encourage discrimination towards certain groups of people. Historically when this has been done it was done with the assistance of a government, usually a theocracy.
The most significant fact to the present joint venture in hate is that the First Amendment right to “religious freedom” of others is being violated by the very people who seek to have their “religious freedom” protected. Irony is a wonderful thing!
The current White House Administration willfully violates the President’s oath of office, which states that he will defend the Constitution. The inclusion of the religious right into the policy- making function of this Administration is a blatant violation of the First Amendment that has and continues to occur. Former Justice Antonin Scalia (the ultimate constitutional originalist for the GOP) commented in a 1995 decision of the Supreme Court of the United States (SCOTUS) “Of course, giving sectarian religious speech preferential access to a forum close to the seat of government (or anywhere else for that matter) would violate the Establishment Clause… (3).” Another aspect to this situation that further demonstrates another purposeful violation of the Establishment Clause is the implied promotion of the Christian religion by the current Administration. The Establishment Clause prohibits a state religion. In another decision before SCOTUS in 1995 Associate Justice Clarence Thomas wrote “with the view that the Framers saw the Establishment Clause simply as a prohibition on governmental preferences for some religions over others.”
The government is to remain neutral in religious matters so as not to favor one religion over another. John Adams, one of the Founding Fathers, made the following comment, “The Government of the United States is in no sense founded on the Christian religion (3).”
The subtle support by this Administration of the Christian religion and its moral animus creates a multitude of problems for many people. Whether it is the denial of reproductive health for women or encouraging medical professionals to deny health care to LGBT patients, it is nothing but blatant discrimination in the name of religion supported the White House Administration. When Thomas Jefferson served as president, he replied to a letter inquiring as to why he refused to issue Thanksgiving Proclamations. In his response, Jefferson stated that “I consider the government of the United States as interdicted by the Constitution from intermeddling with religions, their doctrines, discipline, or exercises (5).”
By Constitutional mandate the government has no business supporting religious groups and their beliefs regardless of how misguided they may or may not be. Religion cannot continue to use the government as a platform to focus their sectarian hate on vulnerable groups. Former Supreme Court Justice Sandra Day O’Connor commented in a 1990 decision that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clause protect (6).”
The promotion of bigotry and hatred, with the assistance of extreme right religious groups, is not to be a function of the Executive Branch of government. Furthermore, the President must be a representative of ALL Americans not just those who voted for him.
(1) Trop v Dulles, 356 US 86, 101 (1958}, Former Chief Justice Earl Warren
(2)Capital Square Review and Advisory Board v Pinette, 515 US 753, 766 (1995)
(3) Rosenberger v Rector and Visitors of the University of Virginia, 515 US 819, 855 (1995)
(4) The Treaty of Tripoli, treaty was between the United States and Tripolitania, signed at Tripoli on November 4, 1796 and signed, again, on January 3, 1787, at Algiers.
(5) Steven K Green, Federalism and the Establishment Clause: A Reassessment, 38 Creighton L Rev 761, 773 (2005), Jefferson to Rev. Samuel Miller, January 23, 1808 in 5 The Writings of Thomas Jefferson, 236-238 (H.A. Washington ed. 1853)
(6) Board of Education v. Mergans, 496 US 226, 250 (1990)
Jocelyn Claire Young Is A Social Justice Advocate, Educator and Writer.