Cane County has had a gang problem for many years, and the high school dress code bans clothing and jewelry with gang symbols. But one gang is now wearing a particular type of cross to identify its members. When confronted by school authorities, the gang members claim the cross is a religious symbol. Not knowing what else to do, the Cane County School Board revises the dress code to ban clothing and jewelry with religious as well as gang symbols.
Cindy and Ben are students at Cane County High School. Cindy wears a cross necklace to show her Christian faith, and Ben wears a Star of David lapel pin as a symbol of his Jewish faith. Unfortunately, they can no longer wear their religious jewelry during the school day without violating the dress code.
So what rights do Cindy and Ben have? Does the school board’s action violate the Establishment Clause, the Free Exercise Clause, or the Free Speech Clause of the First Amendment? The answer to that question lies in the hands of nine people—the Justices who serve on the United States Supreme Court.
United States citizens do not have to look very far to find reminders of their country’s religious heritage. Every piece of money (coin or bill) says “In God We Trust”; Congress opens each daily session with prayer; and even the Supreme Court chambers contain pictures of the Ten Commandments.1 Some reminders are as old as the country itself, while others are more recent; although the Pledge of Allegiance was written in 1892, the words “under God” were not added until 1954.
But the signs of America’s diversity are almost as prominent. A plaque inside the base of the Statue of Liberty invites all countries and all religions to “give me … your huddled masses yearning to breathe free.” Most of America’s big cities have a China Town, a German Town, and Arabic, Jewish, and Irish neighborhoods. Even the small Midwestern city of Madison, Wisconsin—population 200,000—is home to members of the Baha’i, Islam, Buddhist, Mormon, and Jewish religions as well as members of Catholic, Eastern Orthodox, and Protestant churches.2
Against this background, what do Americans mean when they say they have religious freedom? Or, more specifically, what does the First Amendment mean when it says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”? That is the question.
So what is the debate about? For some, it is a fight for religious freedom. For others, it is a fight against religious tyranny. And for both, it is a debate over the original meaning of the First Amendment’s religion clauses.
It is the Supreme Court’s job to judge the debate and answer the question. Unfortunately, even the Justices cannot agree on the answer, and the language in the First Amendment does not provide it. Just what is a law “respecting an establishment of religion”? It would be simple if the clause stated that Congress could not “establish a church” or “prefer one religion over another” or “provide aid to any religious organization.” But the founding fathers did not make it that easy.
So how does the Supreme Court decide what the Establishment Clause means? It follows specific rules that create a hierarchy. At the top of the hierarchy is the language itself. If the language does not answer the question, then the Court looks to the direct legislative history—the contemporaneous words and actions of the lawmakers who voted on the clause.
Finally, the indirect legislative history—actions and events that preceded the clause or that occurred outside of the legislative chambers while the clause was being debated and adopted—is at the bottom of the hierarchy. These rules will be discussed in the next chapter.
Does the Court always get the answer right? Of course not. Supreme Court Justices are human. But someone has to decide, and the founding fathers created a system of checks and balances that gives the judicial branch the final say. And imperfect though the system may be, most citizens of the United States are unwilling to trade it for any of the systems existing in other countries. That means the Supreme Court is stuck with the job, and America must live with its answers.
The First Amendment contains three clauses that figure in many Supreme Court cases involving religion and religious activities. They are:
• the Establishment Clause (“Congress shall make no law respecting an establishment of religion”)
• the Free Exercise Clause (“or prohibiting the free exercise thereof”)
• the Free Speech Clause (“or abridging the freedom of speech”)
The language in these clauses is very general, which makes it difficult for the courts to interpret and apply them. But it also gives the Constitution room to grow as circumstances change. So how does the First Amendment apply to real-life situations that the founders may not have foreseen? The hypothetical case introduced at the beginning of this chapter is just one unanticipated situation. The following hypothetical cases illustrate some others.
A Town with Heart
Milton Jones, a lifetime resident of the small town of Heart, leaves some money to the town when he dies. His will directs that the town use the money to erect a statue of Mother Theresa in the town square as a reminder that the town stands for “loving our neighbors, helping the poor, and having an open heart.” Although the town board agrees to the terms of the bequest, a small group of citizens objects, claiming that placing a statute of a religious person in the town square would violate the Establishment Clause.
The Prison Bible Study
Michael, David, Isaiah, and Emilio are Adams Correctional Center inmates who have become Christians during their incarceration. They attend worship services at the prison every Sunday morning and a weekly Bible study, led by the prison chaplain, every Wednesday evening. They are hungry for more group Bible study, however, and would like to meet together daily during the evening recreation period. The prisoner’s lounge is too noisy, so they request permission to meet in a cell, where they are willing to be locked in.
Prison officials do not allow prisoners to meet in small groups because they could conspire against prison officials, plan a prison break, or foster gang loyalty. Also, the prison guards do not patrol the cell block during recreation periods. So the administration denies the request as against prison policy. Michael, David, Isaiah, and Emilio claim that the denial violates their rights under the Free Exercise Clause.
A Christmas Cross
Bob and Karen Harris are frustrated with the commercialism of Christmas. They want to remind their neighbors that the season is all about Christ, so they put up a 4-foot-tall, lighted manger scene in their yard. The display complies with the suburb’s residential zoning ordinance, which prohibits free-standing figures higher than four feet in residential neighborhoods. Unfortunately, no one notices Bob and Karen’s display because they live between two houses that cram their yards full of Santas, reindeer, snowmen, and other secular symbols—all four feet or less.
The next year Bob and Karen decide to make their display more prominent by adding an 8-foot-tall wooden cross behind the manger scene. They outline the cross with strings of white lights and place a lighted star at the crossbeam. The Harrises do not have anything else in their yard except some icicle lights hanging from the eves, so their display is more sedate and tasteful than the neighbors’ displays. Still, it violates the zoning ordinance, and the suburb fines Bob and Karen $100 for every day the cross remains up. They challenge the fine, claiming the zoning ordinance violates the Free Speech Clause as applied to their display.
These hypothetical cases may resemble actual lawsuits in the lower courts, but they are not drawn from any particular case; and, as of this writing, the Supreme Court has not considered their particular facts. They are included to show that the First Amendment affects real people in their everyday lives and to provide a framework for the discussion in later chapters.
This book endeavors to provide insight into how the Justices decide what the First Amendment means. It will also give readers the tools to answer the question for themselves--or to decide that the question is unanswerable. It will do so by explaining the main principles of interpretation, summarizing the amendment’s legislative history, and describing the cases giving the Supreme Court’s answers.
In the next chapter, we will begin with the rules that the Court follows.
At the end of each chapter in this book, there will be two questions. Answer each one and explain your responses. Then see if your answers change as you read this book.
Question 1: Rewrite the First Amendment in your own words to say what you believe it means.
Question 2: How do you think the Supreme Court would respond to the four hypothetical situations described in this chapter?
a. Can the Cane County School Board ban clothing and jewelry with religious symbols?
b. Can Heart put a statue of Mother Theresa in the town square?
c. Must the prison allow Michael, David, Isaiah, and Emilio to hold a Bible study in a quiet area during their recreation period?
d. Does the ordinance prohibiting the Harrises from putting up an 8-foot cross violate their right to free speech?