Director of Issues Analysis, American Family Association
All of us agree that the left has made its major gains in eroding religious liberty in America through activist judges. What they have not been able to gain at the ballot box, or through the legislative process, or through their elected representatives, they have gained through out-of-control judges who legislate from the bench.
These judges, taking a twisted, distorted and upside-down view of the First Amendment, have removed prayer, Bible reading and the Ten Commandments from public schools, and are rapidly stripping Americans of what remains of the first liberty the Founders guaranteed to us in the Bill of Rights.
In order for us to recognize judicial activism when it comes to the First Amendment, we need to have a clear understanding of what it does and does not mean. I’d like to suggest a plain, simple, straightforward understanding of this amendment as the Framers intended so that it will be clearly evident when judges are tampering with it.
I am not a lawyer, nor do I play one on the radio, but I can read.
Most of us are familiar with the wording of the First Amendment. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The most overlooked, ignored, forgotten and yet most important word in this amendment is the first one: “Congress.” “Congress shall make no law.”
The only entity the Founders restrained in the First Amendment was the Congress of the United States. No entity or individual other than Congress is restrained in any way by the First Amendment.
Do not miss the significance of this. It is constitutionally impossible for a governor, a state legislature, a mayor, a city council, a principal, a teacher, or a student speaking at graduation to violate the First Amendment, for one simple reason: they’re not Congress. The restrictions of the First Amendment do not even apply to them.
Some will surely cite the Incorporation Doctrine, which is based on the plainly false theory that the 14th Amendment applies the restrictions of the First Amendment to the States. But the Incorporation Doctrine itself is clearly a pernicious and lethal exhibition of judicial activism, which nobody thought of until 1947 when it came to the repression of religious liberty.
Somehow the use of the Fourteenth Amendment to stifle religious expression at the state and local level had escaped the finest legal minds in America from 1868, when the Fourteenth Amendment was enacted, until the Everson ruling of 1947, a span of 79 years.
Now the Constitution did not suddenly change in 1947; what changed was the willingness of hyperactive Justices to start finding emanations and penumbras in the Constitution, fabricated out of whole cloth by their fevered judicial imagination.
We know as a matter of historical record that the Fourteenth Amendment does not incorporate the First Amendment against the states. We know this because in 1875 James Blaine, a senator from Maine, tried to push his Blaine Amendment through Congress.
His proposed wording read, “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof.” Do not miss the implication of this. If the Framers of the Fourteenth Amendment had intended to incorporate the First Amendment against the states, there simply would have been no need – just seven years later – for the Blaine Amendment. Sen. Blaine simply would have been told, “Hey, didn’t you get the memo? The Fourteenth Amendment has already done this.”
So clearly, Congress had no intent in passing the Fourteenth Amendment of clamping down on religious freedom at the state or local level.
Even more telling is this indisputable historical fact: Sen. Blaine’s amendment did not make it through Congress. Congress rejected his effort to take the First Amendment and use it to squeeze the life out of religious freedom at the state and local level.
So if Congress and Congress alone can violate the First Amendment, how can it do that? The Founders were clear, “Congress shall make no law respecting an establishment of religion.” The only way Congress can violate the First Amendment is to “establish a religion.”
Now when the Founders used the term “religion,” they did not use it, as we often do, to refer to religion in general, let alone to mere public references to God, as the ACLU argues.
No, what they meant by “religion” was one of the various denominations or “sects” of Christianity. At the time of the founding, 99.8% of the population were followers, to one degree of intensity or another, of the Christian faith. Almost all of the other 0.2% were followers of the Jewish faith. Virtually 100% of the American people at the time of the founding were adherents of the Judeo-Christian tradition.
The Founders used “religion” in much the same way as I and my friends did on the playground when I was young. We’d ask each other, “What religion are you?” by which we meant, “Are you Baptist, or Lutheran, or Methodist or Roman Catholic?”
The term “establishment” also had a clear, precise, unambiguous and technical meaning at the time. To “establish” a “religion” meant to pick one Christian denomination, give it preference in law, and compel citizens to support it with their tax dollars.
Our Founders had seen in England the kind of religious tyranny and repression that results from an established church and were determined not to repeat that mistake in the our young nation.
So only Congress can violate the First Amendment, and the only way it can do that is to select one Christian denomination, make it the official church of the United States, and compel citizens to support it with their tax dollars.
Don’t miss this: if Congress doesn’t do that, it can do anything it wants. It has complete constitutional liberty to engage in any kind of religious expression it chooses as long as it does not establish an official church.
Now why is all this important? Why is it so important for us to fight to protect genuine religious liberty in America?
Here are two official slogans or mottos. As I rehearse them for you, ask yourself where these originated.
- “Politics do not belong in the church.”
- “The church must be separate from the state.”
These mottos did not come from the ACLU, nor from Americans United for the Separation of Church and State, nor from the Freedom from Religion Foundation.
No, these slogans, word for word, came directly from the mind of Adolph Hitler.
These were official slogans of the Nazi Party, adopted in the mid-1930s and relentlessly hammered into the minds of the compliant German population by the Nazi propaganda machine.
In essence, what Hitler said to German pastors was this: “I don’t care what you teach your congregations, as long as you don’t talk about politics, and as long as you keep your voice inside the four walls of your churches.”
Why did Hitler do this? For one simple reason. He knew that the only force in Germany which could keep him from fulfilling his totalitarian ambitions was the church of Jesus Christ. He knew that if could not silence the voice of the church, he could not exercise total domination over the German people.
He also knew that if he could silence the voice of the church, nothing could stand in his way.
The church and its leaders meekly capitulated to this form of tyranny, and 25 million people died as a result, six million of them Jews.
Secular fundamentalists in the United States know the same thing that Hitler knew. The only thing that stands in their way of the total takeover of our culture, the final removal of any mention of God from the public arena, and the shredding of the last remains of our Judeo-Christian value system, is the church of Jesus Christ.
I once had a lesbian activist say these exact words to me when I was pastoring: “I don’t care what you teach or believe as long as you keep it inside the four walls of your church.” In essence, she was saying, “Your church belongs to you, but the public square belongs to us.”
They know that if they cannot silence the voice of the church, they cannot succeed. And they also know that if they can silence, neutralize and castrate the voice of the church, nothing can stand in their way.
I submit that the future of our country, as well as the future we leave to our children and grandchildren, hinges on this one question and this one question alone: will the church allow its voice to be intimidated into silence, or will our spiritual leaders once again take their prophetic role in our society and speak truth to power outside the four walls of the church?
Will the leaders of the church once again speak the unchanging and unchangeable truths of God and his Word into the public square, declaring his truth without apology, compromise, or concession? Will our pulpits once again flame with righteousness, or will the church allow its voice to be strangled by the strident voices of the left?
Our future as a nation hinges on the answer to that question. And so we turn our eyes to the leaders of the church of Jesus Christ, and we ask, “What will you do? What will your answer be?”