Challenge

Sun Jul 31 14:24:07 PDT 2005

There is another plausible explanation.  "Freedom of speech" as opposed to "free speech" was something that the drafters saw as a pre-existing natural right.  Therefore, you cannot "prohibit" that right, you can "abridge" the right.  On the other hand "free exercise" of religion, as opposed to "freedom of religion" can be prohibited, and they did not want that.  That is, to be parallel, the drafters might have said that Congress could not abridge the "freedom of religion", or they might have said that Congress cannot prohibit "free speech". But, for whatever reason, in the actual amendment in one case they chose to refer to the right, and in the other case they chose to refer to the conduct. There is no certainty that this was their thinking, but it is at least as plausible to explain the difference in wording given the drafter's sensitivity to natural rights.

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Howard M. Friedman
Disting. Univ. Prof. of Law Emeritus
University of Toledo
Toledo, OH 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732
E-mail: howard.friedman at utoledo.edu <mailto:howard.friedman at utoledo.edu> 
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From: religionlaw-bounces at lists.ucla.edu on behalf of Gene Garman
Sent: Sat 7/30/2005 3:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Challenge

Re Douglas Laycock's commentary, I never asserted the word "totally" is in the Clause. The word "prohibiting" means totally. Prohibiting does not mean abridging, which means reducing. Of course, the word "totally" is not in the Free Exercise Clause because the men who wrote it knew "prohibiting" meant totally.  I use "totally" in explanation because some folks seem not to comprehend that that is what "prohibiting" means. Use of "totally" may be redundant, but some folks seem not to comprehend that that is what "prohibiting" means and is in accordance with the understanding provided in Webster's.

The men who wrote the religion commandments were not playing games with words or their intent. They used words to mean something. The word "prohibiting" is a different word than "abridging" and has a different meaning. To suggest there is no distinction in meaning between the two words is what is "absurdum."

No, there is no record of the proceedings of the conference committee, but there is record of the debate in the House and of the many different wordings which were proposed and rejected. It is inaccurate to assert there is no evidence as to the lively wording controversy on the House floor, which included the various Senate proposals, all of which was responsible for the conference committee between the two chambers and the ultimate draft which was finally accepted by Congress as understandable and adoptable. 

You accurately state: "If any particular act of religious exercise is prohibited, that exercise of religion is prohibited even if other exercises of religion are not." 

The exercise of religion is not prohibited, but religion is not above the law, except in matters of opinion. The Free Exercise Clause does not say the exercise of religion cannot be abridged. The Free Exercise Clause plainly says the exercise of religion cannot be prohibited, which means totally. All actions are subject to the laws of the land, regardless of religion. 

Back in the days of our history when Justices accepted the wording of the Free Exercise Clause as written, its understanding by the Court was unanimous: 

"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
...

"Can a man excuse his practices ... because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. 
...

"It matters not that his [George Reynolds] belief was a part of his professed religion; it was still belief, and belief only" (Reynolds v. U.S., 1879).

The Free Exercise Clause, by its precise wording, is in complete harmony with the Court's opinion. The Free Exercise Clause does not forbid all religion exercise, but it is not a license for anarchy. 

As you can easily conclude, I am not a Humpty Dumpty fan. Furthermore, if one thing is clear from the record history, James Madison left more written record as to the specific meaning and application of the Constitution's religion commandments than any of the Founding Fathers or members of the First Congress, if not all of them put together. His 1811 veto messages, his "Detached Memoranda," and many of his letters deal specifically with his understanding of the constitutional relationship between religion and government. Any suggestion that he was confused about his plainly stated understanding of "separation" as being the essence of the Constitution's religion commandments is not sustainable by any investigation of his entire record.  

Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org

Douglas Laycock wrote:

	Re Gene Garman's post on free exercise, which for some reason will not appear in my replyl screen:  

	The conference committee on the Bill of Rights is a black box; we know nothing of its deliberations.  The three different verbs in the First Amendment (respecting, prohibiting, abridging) might have been intended to convey three different meanings, or they might have been that common bane of clear writing, elegant variation.  The Federalists relied on the three meanings theory to defend the Sedition Act; Madison rejected that argument in the Virginia Resolution.

	"The liberty of conscience and the freedom of the press were equally and completely exempted from all authority whatever of the United States.  If Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only "they shall not abridge it," and is not said "they shall make no law respecting it," the analogy of reasoning is conclusive that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it; because it is said only "they shall not prohibit it," and is not said "they shall make no law respecting it, or no law abridging it.""

	James Madison, Report on the Virginia Resolutions (1800).  Madison appears to have viewed this interpretation of the Free Exercise Clause as a reductio ad absurdum.  

	In any event, a distinction between abridging and prohibiting could not do much work in real cases.  It does not say "totally prohibiting," as Gene would have it.  If any particular act of religious exercise is prohibited, that exercise of religion is prohibited even if other exercises of religion are not.  

	The Reagan Justice Department argued that a burden that merely made an exercise of religion more costly might abridge but did not prohibit -- that prohibiting meant the government expressly forbids it.  This has more textual plausibililty, but there is no historical evidence for that distinction either, and it would permit such classic abuses as the English laws excluding Catholics from the professions, and in earlier times, excluding everyone outside the Church of England.  It is impossible to imagine the Framers intended that.

	And no variation on any difference between prohibiting and abridging maps onto the currently posed choice between the Smith-Lukumi standard or the Sherbert-Yoder standard.  Smith-Lukumi requires compelling justification for burdens that are discriminatory in some still contested sense, without regard to whether those discriminatory burdens contain an express prohibition, or a total prohibition, or any other kind of prohibition that is somehow greater than a mere abridgement.

	Douglas Laycock
	University of Texas Law School
	727 E. Dean Keeton St.
	Austin, TX  78705
	512-232-1341
	512-471-6988 (fax)

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