Indeed, to insure that it never could be wholly true, our Founding Father adopted the Bill of Rights. But does the statement become true, if the citizen accepts money from the government?
In England, from the time of Henry VIII, often when a new monarch took the throne, the religion of the realm changed. Henry was Protestant. Mary was Catholic. Elizabeth I was Protestant. Charles I favored Catholics. Americans in 1789 wanted nothing to do with changing their religions every time the majority in Congress changed.
The First Amendment was designed to insure that religion was beyond the power of each new majority in Congress to "esRecently, a liberal friend of mine wrote "the public is allowed to set rules ... through its elected representatives and those rules apply to all citizens." In America, that statement is only somewhat true.
Our Bill of Rights (the first 10 Amendments to the Constitution) exists for the primary purpose of putting certain rights that James Madison and his contemporaries deemed essential to a free America beyond the power of the majority and their elected representatives to change. Indeed, those amendments has always denied the federal government power to do any of the following:
-- Designate a "state religion," or specify how Americans should worship. Such a law would run afoul of the "establishment" and "free exercise of religion" clauses of the First Amendment.
-- Prohibit individuals or the press from criticizing the president, Congress or the Supreme Court. This would run afoul of the First Amendment guarantees of free speech and free press.
-- Abolish the right to bear arms, as guaranteed by the 2nd Amendment.
-- Order the quartering of troops in private homes in time of peace, as prohibited by the Third Amendment;
-- Authorize the government to conduct indiscriminate searches and seizures in the absence of probable cause as required by the Fourth Amendment.
-- Take property for public use without paying just compensation as required by the Fifth Amendment;
-- Abolish the right to jury trial, and speedy and public trials in criminal prosecutions, as guaranteed by the Sixth Amendment
-- Impose cruel and unusual punishments as prohibited by the Eighth Amendment.
Were my friend to give the matter further thought, I'm confident he would concede that the Bill of Rights prevents the majority from changing our rights therein guaranteed. Still, he would probably argue that, "If the church accepts money (from the government) for its quasi-public activities, it must follow whatever rules the elected representatives of the public choose to apply to all citizens."
I think that statement is equally overly broad. By "quasi-public activity," he no doubt means universities, hospitals, and charities that provide adoption services. But hasn't the church for 1,000 years, and for centuries before our Constitution was adopted, considered these as part of its religious mission to love our fellow men and to teach all nations?
So does a church forfeit its First Amendment rights if the church accepts money? If so, how much money may it accept before it surrenders its rights? -- that is, before it must "follow whatever rules the elected representatives of the public choose to apply to all citizens?"
If the University of Notre Dame accepts a nickel from the U.S. government, must it provide to its employees and students insurance that provides coverage for contraceptives and abortifacients?
What if it accepts payments of tuition under a federal loan? What if it accepts tuition for ROTC students paid by the U.S. Navy? What if the university and the state share the cost of construction of a new road to alleviate traffic congestion on football Saturdays? What if it accepts the benefit of having its property tax exempt?
If any of these things result in forfeiture of rights, Notre Dame should have lost its First Amendment rights long ago. That First Amendment provides "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."
Note there is nothing in the amendment, stating "except if the church accepts money for its quasi-public activities."
By accepting Social Security benefits or a state pension, have I forfeited my right to the "free exercise" of my religion? To free speech? If I don't, why would the church, absent a clear warning that that was the consequence?
There is no question that the government must have the right to legislate to protect the public. But when that power impacts upon the free exercise of religion, that power must be used delicately. That is the rule stated in the U. S. Supreme Court case of Cantwell v Connecticut (1940): "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."
Congress' power to protect the public from cannibalism would certainly trump a church's practice of cannibalism.
A president's desire to make contraception and abortion widely available would seemingly permit far less infringement.
Of course, when it comes to money, Congress can always offer a church a choice:
You can take our money, or refuse it. If you take it, these are the strings!
Posted Online: June 19, 2012, 2:31 p.m - Quad-Cities Online
by John Donald O'Shea
Copyright 2012
John Donald O'Shea
