Tag: first amendment

Politifact Debunks Bryan Fischer's Christianity Only View of the First Amendment

Just as I did in 2011, yesterday Politifact debunked Bryan Fischer’s claim that the founders said religion but meant Christianity.
On his 12/10/13 Focal Point broadcast, Fischer said:

By the word religion in the First Amendment, the founders meant Christianity.

Not so.
Politifact’s Punditfact writers consulted Baylor’s Thomas Kidd, Rutger’s Jan Ellen Lewis and Virginia Foundation for the Humanities Fellow John Ragosta to provide the complete picture. Fischer believes Muslims should not have the right to build any new mosques. His topic on the broadcast was claims for First Amendment protections by Satanists.
I doubt this comeuppance will distract Fischer from misleading his American Family Association audience. Such facts have come to light before. His own organization, the AFA, publicly disagreed with him in 2011 but he continues to preach his fictions. Fischer’s argument is an extension of David Barton’s Christian nationalist perspective. Barton has defended the view that the First Amendment only applies to monotheistic religions.

Is a Ban on Reparative Therapy a Violation of the First Amendment, Part One

Does a ban on reparative therapy infringe on the First Amendment rights of reparative therapists?

This question is at the heart of the debate (and a couple of lawsuits) regarding California’s law banning reparative therapy for minors. The law was set to take effect tomorrow but has been postponed pending a full hearing.

According to Eugene Volokh, the issue of professional-client speech has not been well-defined by the courts. In 2004, Volokh offered an excellent summary of issues relating to what the state can do to regulate professional speech to clients.  In the post, Volokh noted that professionals are subject to speech restrictions that other do not experience. For instance, the state can impose penalties when health care professionals offer harmful advice. Outside the professional context these expressions would be protected opinions.

According to Volokh, the Supreme Court has not been specific about important aspects of professional-client speech. He wrote:

Such restrictions and compulsions may in fact be properly upheld: There may be something in a professional-client relationship that would justify such extra regulation. But the Court has never explained (1) exactly what speech restrictions and speech compulsions would be allowed in such a situation, or (2) exactly when this reduced protection would be triggered. In Lowe v. SEC, 472 U.S. 181 (1985), a three-Justice concurrence (written by Justice White and joined by Chief Justice Burger and Justice Rehnquist) suggested this rule (paragraph break added):

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional’s speech is incidental to the conduct of the profession. If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.

Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

Then Volokh offers a problem which seems relevant to the issues active in the current debate over conversion therapy.

b. Problem: Counseling That Advocates Race-Based Decisions

A state has long required all marriage and family counselors — defined as “any person who offers advice related to marriage and family matters in exchange for money” — to be licensed, and to follow rules prescribed by the state’s Marriage and Family Counseling Licensing Board.

The Board learns that some marriage and family counselors are advising clients not to enter into interracial marriages or interracial adoptions. Some are even advising clients who are in interracial marriages that the interracial nature of the marriage may be a source of the problem, and are suggesting in some instances that divorce may therefore be the only solution.

The Board believes that such advice is offensive, and harmful to the patients. It therefore enacts the following rule: “Any marriage and family counselor who uses the patients’ race, or the race of the patients’ spouse, children, or prospective adoptive children or stepchildren, as part of the basis for the counselor’s recommendation, shall have his or her license suspended for six months.”

Based on this rule, Mary Moe, a counselor who had engaged in such advice, has her license suspended. Her former patients, Laura Loh and Richard Roe, who divorced each other partly on Moe’s advice (Loh is East Asian and Roe is white), but who have since reconciled, sue Moe for emotional distress caused by her advice, which they claim constituted malpractice. The judge awards them $100,000 in a bench trial. One of the judge’s findings of fact is that Moe’s advice was unreasonable by the standards of the profession, and the sole evidence that the judge relies on is the Board’s rule.

What should be the proper analysis be under the First Amendment?

Did Mary Moe suffer a violation of her First Amendment rights?

When reparative therapists tell minor clients that they can change sexual orientation if they engage in deep emotional therapy, are they offering unreasonable advice which can be regulated by the state? When reparative therapists tell clients that homosexuality is a disorder of gender identity, can the state intervene? Should the state intervene when licensed therapists tell clients that pounding a pillow with a tennis racquet while screaming will help them get in touch with repressed memories underlying their homosexuality?

In this post, I want to raise the issues and generate some discussion. In part two, I will write about my views on the matters.

The Cincinnati Bible Wars: When the Bible was removed from schools

The month of May marks the 400 anniversary of the publication of the King James Version of the Bible. The most published book in history, the KJV was once widely read in public schools around the nation. However, in 1872 that trend was reversed by the Ohio Supreme Court in Minor v. Board of Education of Cincinnati which addressed what was called at the time, the “Cincinnati Bible Wars.” In 1869, the Cincinnati Board of Education voted to remove the KJV from the public schools, sparking angry protests and petition drives locally and news interest from coast to coast. Initially, the removal of the KJV was proposed to attract Catholic families who were troubled by readings of the Protestant KJV. However, the case soon became a dispute about the role of religion generally in the public schools. Proponents of the Bible argued that America was a Christian nation with the Bible as the foundation. Opponents argued that the mandatory Bible reading of the KJV unconstitutionally privileged Protestant Christianity.

Modern day proponents of America as a Christian nation, such as Wallbuilder’s David Barton and the American Family Association’s Bryan Fischer have proposed that the First Amendment to the Constitution was meant to prevent the nation from establishing a denomination of Christianity as a national religion but was not meant to address the religious freedom of non-Christian religions. To be sure, at the time, there were those who wanted an explicitly Christian nation. However, as adopted, the First Amendment would collapse into contradiction if Barton’s and Fischer’s views were accurate. Christianity would have been established in exclusion of other beliefs, the very result forbidden by the amendment.

The reasoning of the Ohio court regarding the KJV in public schools is worth considering in light of current debates over the relationship of church and state. Proponents of Bible reading had appealed to section 7, article 1, of the Ohio constitution which states: “Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.” This of course is adapted from the Northwest Ordinance, the federal statute which provided rules for admission of new states from the western territories.

Those favoring the KJV argued, among other points, that the Ohio Constitution allowed Bible reading since religion was to be encouraged. The Ohio Supreme Court disagreed and reversed the lower court, thus agreeing with the Cincinnati school board. The Ohio court addressed the concept that the constitutions of the nation and the state meant Christian when religion was written. The logic is clear and compelling. Referring to section 7, article 1 of the Ohio Constitution, Justice John Welch wrote:

The real claim here is, that by “religion,” in this clause of the constitution, is meant “Christian religion,” and that by “religious denomination” in the same clause is meant “Christian denomination.” If this claim is well founded, I do not see how we can consistently avoid giving a like meaning to the same words and their cognates, “worship,” “religious society,” “sect,” “conscience,” “religious belief,” throughout the entire section.  To do so, it will readily be seen, would be to withdraw from every person not of Christian belief the guaranties therein vouchsafed, and to withdraw many of them from Christians themselves.  In that sense the clause of section 7 in question would read as follows:

“Christianity, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every Christian denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.”

Nor can I see why, in order to be consistent, the concluding clause of section 2, article 6, should not read as follows: . . . .

“But no Christian, or other sect or sects, shall ever have any exclusive right to or control of any part of the school funds of the state; but Christians, as a body, including all their sects, may have control of the whole of said funds.”

I do not say that such a reading of the sections in question is literally contended for; and yet I see no fair escape from it, if the word “Christianity,” or the words “Christian religion,” or “the religion of the Bible,” are to be interpolated, or substituted for the word “religion,” at the place indicated.

The court here correctly notes the real substance of the argument in favor of daily Bible reading in the Cincinnati public schools. Those arguing for the reading of the KJV were arguing that the framers meant Protestant Christianity when they wrote religion into the founding documents, i.e., the Barton/Fischer view. On the contrary, the Ohio court offered this rebuttal:

If, by this generic word “religion,” was really meant “the Christian religion,” or “Bible religion,” why was it not plainly so written?  Surely the subject was of importance enough to justify the pains, and surely it was of interest enough to exclude the supposition that it was written in haste, or thoughtlessly slurred over.  At the time of adopting our present constitution, this word “religion” had had a place in our old constitution for half a century, which was surely ample time for studying its meaning and effect, in order to make the necessary correction or alteration, so as to render its true meaning definite and certain.  The same word “religion,” and in much the same connection, is found in the constitution of the United States.  The latter constitution, at least, if not our own also, in a sense, speaks to mankind, and speaks of the rights of man.  Neither the word “Christianity,” “Christian,” nor “Bible,” is to be found in either.  When they speak of “religion,” they must mean the religion of man, and not the religion of any class of men.  When they speak of “all men” having certain rights, they cannot mean merely “all Christian men.” Some of the very men who helped to frame these constitutions were themselves not Christian men.

We are told that this word “religion” must mean “Christian religion,” because “Christianity is a part of the common law of this country,” lying behind and above its constitutions.  Those who make this assertion can hardly be serious, and intend the real import of their language.  If Christianity is a law of the state, like every other law, it must have a sanction.  Adequate penalties must be provided to enforce obedience to all its requirements and precepts.  No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world.  The only foundation — rather, the only excuse — for the proposition, that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its constitutions and laws are made by a Christian people.

The United States does have a Christian heritage, of this there can be no doubt. Since the time of the Founding, even unbelievers have been schooled in the Bible and know the themes and stories. Those Founders who rejected the miracles and the Trinitarian view of God, such as Jefferson, Adams and Franklin, were men who believed that the moral teachings of Jesus were sound. However, as the Ohio court opined, the state cannot coerce conscience, Christian or otherwise. The state adds nothing of spiritual significance to the church, while the church has no need of the state’s imprimatur.

One of the lawyers opposing the KJV in Cincinnati schools was Thomas Stanley Matthews. Matthews was a Presbyterian elder and staunch Christian who later became an Associate Justice of the US Supreme Court. His legal brief in the case reads like a theological treatise against giving the state power to enforce religious views on citizens. Matthews revered the Bible but believed that the Christian position was to reject state coercion of individual conscience. As evidenced above, the Ohio court agreed with Matthews and provided its own lesson in theology. Judge Welch argued that Christianity needed no state support, saying

True Christianity asks no aid from the sword of civil authority.  It began without the sword, and wherever it has taken the sword it has perished by the sword. To depend on civil authority for its enforcement is to acknowledge its own weakness, which it can never afford to do.  It is able to fight its own battles.  Its weapons are moral and spiritual, and not carnal.

Will the Bible, KJV or otherwise, last another 400 years? I suspect it will, and not because Christians win the culture war or establish the Bible in public institutions. The Bible lasts because it is timeless in Authorship and content, and because it speaks to the deepest needs of people.

For a good summary of the history of the case, see this journal.

Did the First Amendment make America a Christian nation?

Of course not.
However, as I have been examining, Bryan Fischer seems to think so. Fischer says that the First Amendment only protects the religious expression of Christianity. According to Fischer non-Christian religions have no Constitutional protect but may be tolerated.
Today, the Christian Post and Crosswalk published a more detailed treatment of the topic where I address the claims that the author of the First Amendment, James Madison, and the members of Congress only meant to protect Christianity. Although the dominant religion was indeed Christianity, the words of Madison and Jefferson make clear that the right envisioned was an individual right of conscience and not tied to a particular religion.
In the article today, I mention a book by William Lee Miller, titled The First Liberty. I highly recommend this book. In it, Miller examines the influence Rhode Island’s Roger Williams had on John Locke, who in turn influenced James Madison. Even more direct was the intellectual line from Williams to Baptists Isaac Backus and John Leland. Leland had direct influence on Madison.
Miller provides ample evidence of Williams commitment to religious freedom. For instance, according to Stephen Hopkins, a signer of the Declaration of Independence, Williams was “the first legislator in the world…that fully and effectively provided for and established free, full and absolute liberty of conscience.”
Connecting the dots, Miller adds:

Williams name and conviction were carried into the period of the American Revolution and founding by John Leland in Virginia and by Isaac Backus in New England. Leland, as noted, was the most important leader with whom James Madison made his moral understanding at the time in 1787-1788 that the issue of ratification of the Constitution was being debated in the states — most significantly in Virginia. Leland gave voice to the complaint against the Constitution that it had no bill of rights, and in particular no explicit protection of religious liberty. Madison made with Leland his consequential moral agreement: You support the Consitution now; I will introduce a bill of rights as amendments in the first Congress. So that was one way the ghost of Roger Williams made its way into the founding documents.

Williams “free, full and absolute liberty of conscience” is much closer to what we have in the First Amendment than Fischer’s limited vision. The Constitution then, and now via the 14th Amendment and numerous Supreme Court decisions, provide protection for adherents of all religions and none.
The article after the break: Continue reading “Did the First Amendment make America a Christian nation?”