Constitutional Law

What are the approaches to interpreting the establishment and free exercise clauses, and how should the Constitution work to protect religious liberty?

The American Constitution’s First Amendment contains two overarching religion clauses. ‘Congress shall not make any law respecting an establishment of religion’ and ‘or prohibiting the free exercise thereof’ (Burke 412). The first phrase referred to as the Establishment Clause functions as a structural control against government power. It instigates constraint on part of the government to abstain from issuing legislation or acting on agendas relative to the establishment of religion. It also absolutely forbids government to impose or establish a particular religion on society. The second phrase regarded as the Free Exercise Clause ascertains the right that each member of America’s society may accept and by extension, practice whichever religious beliefs so desired (Witte Jr and Nichols 23). This particular clause seems to not only support violations on standing laws for religious purposes. These two unique constitutional clauses serve as a point of demarcation separating operations and functions of religious institutions from those established for the governance of society.

Religious institutions and contemporary government structures present similar functions and essentially intertwined. In instances where religion defines government or vice versa, oppression and bloodshed bear a common place in society. These two clauses offer protection to similar sets of values in a manner that violating ones ultimately implies an infringement on the other (Witte Jr and Nichols 26). For instance, establishing compulsory prayers within a public school translates an unlawful establishment of a religion interfering with free exercise rights of students not subscribing to any form of religion. It is critical to ascribe that an innate tension exists between the two. If the same school districts opt to prohibit any form of religion, then it contravenes the free exercise clause. On the other hand, it the district supports religious prayers during particular periods, then it flouts the establishment clause.

An appropriate interpretation of the American Constitution’s First Amendment requires a clear definition on religion. The American courts system has over the years provided a rather vast definition concerning the term (Choper 9). Within the US, religious beliefs remain safeguarded even in cases where such go against the grain in relation to the principles of some other distinct religion. A citizen needs not belong to a particular organized grouping to acquire protection for upheld religious beliefs. The beliefs subscribed to by a particular individual remain appreciated as religious even in the absence of a belief in a higher power given that those beliefs function as well as act as some form of religion in the individual’s life (Choper 11). This implies that courts are not in a position to consider a religion baseless even in situations where an overwhelming majority negate it claims and precepts. The most important factor considered is if an individual in question acts the sincerely adhered to beliefs.

A general rule in American society is that the government is obligated to ensure protection of religious persons and by extension, institutions allowing them to practice faiths candidly as well as freely with no interference whatsoever. However, if a religious practice undermines or even harms other significant societal interests, the government ought to function accordingly towards the restoration of order (Witte Jr and Nichols 34). This implies that in line with the good citizenship mantra, each person bears a civic duty towards upholding the religious freedoms of others. Religious liberty rights are therefore, adequately safeguarded when each citizen and group fully appreciates an inherent responsibility to not only guard own rights but also those of other fellow countrymen.

What are the rationales for safeguarding freedom of speech and why are some
forms of speech accorded First Amendment protection and others are not?

The high regard accorded to free speech stems from the US’ extended liberty history from the period of Revolution, the Civil War, the Reconstruction era, women’s suffrage, civil rights legislation unionization and many more. As a critical component of the nation’s unique development, free speech transformed the US from a predominantly slave state to the premier advocator for gender equality, civil liberties and presently, gay rights. Persons dedicated to social progression employed it as the cornerstone for necessitating public debate on issues previously considered taboo.

The U.S. Constitution’s First Amendment expressly states that ‘Congress shall make no law abridging the freedom of speech or press’ (Burke 412). This serves as a source for restraint against the government’s attempts to limit speech by citizens. However, freedom of speech is not in any way absolute. There are forms of speech expressly prohibited while others are relatively easy to constrain in comparison to others. Speech is essentially more effortlessly regulated relative to the platform through which it is manifested (Ruane 12).

The country’s Supreme Court provides elucidations as to what is guaranteed freedom of speech while also according no protection whatsoever for some and limited protection to other forms of speech (Ruane 12). For instance, this court avails no protection in accordance to the First Amendment for fighting words, child pornography or obscenity. On the other hand, speech propagated through mass media, public employee speech, defamation, commercial speech and speech detrimental to children is accorded considerably limited protection (Ruane 13). Even for speech generally accorded extensive protection by the First Amendment remains subject to regulation concerning manner of expression, place and time as to only purpose certain weighty government interests.

Works Cited

Burke, Kevin. “The World of Content Neutrality: Effective Approaches to a Problematic Area of the First Amendment.” Suffolk UL Rev. 49 (2016): 409-429.

Choper, Jesse H. Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. New Orleans, LA: Quid Pro Books, 2013.

Ruane, Kathleen Ann. Freedom of speech and press: Exceptions to the First Amendment. 2014. https://www. fas. org/sgp/crs/misc/95-815.pdf. 25 May. 2017.

Witte Jr, John, and Nichols A. Joel. Religion and the American constitutional experiment. New York City, NY: Oxford University Press. 2016.