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Edited on Sat Jul-23-05 05:49 PM by no_hypocrisy
First Amendment:
1. The Establishment Clause: Congress (and the states through the 14th Amendment) shall make no loaw respecting an establishment of religion, OR" (magic word, "or")
2. The Free Exercise Clause: "prohibiting the free exercise thereof."
The Establishment Clause is in the heat of a battle for its interpretation. Rehnquist and Scalia, originalist interpretors of the Constitution, see it literally, such as there should be no "American Church" and all other religions banned consequently. In case law since the 20th Century, the Supreme Court has used this clause to prevent harassment of citizens who habituate public forums (public schools, for example) by a particular religious group. The modus operandi of these groups is either direct harassment of students or worse, getting the sponsorship of a government agency or its representatives (e.g., a principal or board of education) to act on its behalf and will endorse that group's message, leading to balkanization of an otherwise homogenous group of people. Either you are with us or against us. Plus there is no penalty for the harassers. This could change with the new SC nominee in place.
Whenever a law is passed that restricts the practice of a minority religion (demographically, like Native Americans using peyote for their rictuals), there must be a standard under the Free Exercise Clause that protects the minority's religion right to practice without harassment from non-members.
The tension between the two clauses is to allow religious expression to flourish without government intervention or interference or imprimatur. One group will have to have a limited right to such expression in order to protect the rights of non-members of that group.
In short, the religion clauses are about protecting the rights of individuals who do not wish to join a mainstream religion and who deserve to be left alone if they are compelled to be engaged in a public forum.
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