I read something this morning that started a fire in my brain, and now I want to see if it starts a fire in yours.
According to a Fox News article, a North Carolina school compelled a young girl to remove religious references from a poem she wrote about her two grandfathers and their Vietnam War experiences during a Veteran’s Day presentation at her school. According to the report, the principal at the West Marion Elementary School was asked to review the appropriateness of the religious references in the poem being performed at a school sponsored function, as it may violate the Establishment Clause of the First Amendment of the Constitution. The school agreed with the grievance and the girl was ordered to alter the poem.
What bothers me isn’t the school’s knee-jerk reaction. That’s typical, and I recognize it in two parts: 1) a coward’s response to a public that believes they have the right to not be offended, and have been proven correct through successful litigation, 2) a school’s reaction to the first response and deciding that to “err on the side of caution”, as the principal puts it, saves them from having to defend themselves against a costly lawsuit that the plaintiff will invariably not have to fund due to the slavering vociferousness of the ACLU’s desire to destroy any form of public religious expression. What bothers me is that we, as a society, continue to mistakenly apply the First Amendment to institutions to which it is not applicable as a means of restricting Freedom of Speech and Freedom of Religion.
Below, the full text of the First Amendment; we’re going to break this down, and then I’m going to point you at a a dissenting viewpoint that, unfortunately, due to legal precedent happens to be the way the First Amendment is applied.
“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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Phraseology; we’re going to take this a piece at a time. First clause: “Congress shall make no law respecting an establishment of religion,”
Seems simple enough, right? This is also the basis for the “Establishment Clause”. So lets get into this.
The Amendment specifically states that Congress shall make no law… Congress is the Legislative Branch of the Federal Government, and thus an amendment to the Constitution was created by our Founders to limit the Federal Government’s ability to create laws that establish or recognize any religion as a religion preferred by the State. There is nothing in this Clause that expressly prohibits lower entities under the Government, or public entities not associated with the Federal Government from displaying icons of a religious nature publicly, and doesn’t protect the citizenry from the expression of religion in public by anyone, regardless of affiliation with the Government. Put simply, extrapolating from this first part of the Amendment that the Federal Government shall, in pursuit of compliance with the Amendment in whole, expunge all religious references from public display, or display by public representation at any level, is reaching too far for the apple. As a school is not capable of legislating, a school’s allowing for a child to reference God, Allah, Thor, or whatever other deity they choose to while reading a poem they, themselves, wrote is protected by the remainder of the Amendment.
“…or (make no law…) prohibiting the free exercise thereof;” refers again to the limits on Congress concerning the creating of laws limiting freedom of religion. Since its been argued successfully, and to our detriment, that a publicly funded entity should be held to higher restraints concerning religious display, regardless of its legislative powers, one could also conversely argue that since the school, in this case, would violate the Establishment Clause by allowing for the poem to be read as written, that they would also violate the Freedom Exercise Clause by prohibiting the child’s poem to be read. This circular reference paradox is directly caused by the misapplication of judicial precedent regarding the Establishment Clause and its applicability to lower governmental bodies with no legislative powers. A school is not Congress, just as much as a city community center, lets say, in Santa Monica, CA, isn’t Congress. The Establishment Clause applies only to Congress.
“…or abridging the freedom of speech, or of the press;” This is pretty self explanatory, but we still manage to get it wrong. There are those who feel that since words can hurt we must prevent this pain by preventing the unfettered use of language to express an individual. I’m not talking about libel or yelling fire in a crowded building. I’m talking about political correctness and the overbearing need to force people to not offend others. You’re no more protected by the First Amendment from being offended than the school is obligated to wipe religion out of that little girls poem. For some reason, though, we’ve created an industry around litigation centered on the protection of the feelings of people from the expression of others. This seems to only apply to religious types, or Conservatives, though. No one has, to my knowledge, suggested we bind Louie CK’s lips shut for calling Sarah Palin the vile things he has; at least, no one has and received face in the media for having done so. Unless you are exposed to what CK has said on the radio, in his act, and on TV, you’d not know, and therefore not be offended. The same can be said for any other type of expression, say, Mark Levin or Rush Limbaugh, for instance. If what they say doesn’t sit well with you, change the channel, but don’t go crying to the Government to forcibly “change the channel” for the entire population. That is not your place, and the changing of the channel is not the Government’s place, as indicated by this Clause.
“…or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This seems pretty self explanatory as well. Congress shall not legislate away the right to peaceably assemble, protest publicly, or petition for the redress of grievances against the Government. Since this isn’t part of the topic at hand, I’m not going to delve too deep into this, except to say that while Occupy Wall Street started out as a peaceable protest movement, it quickly spun out of control, as most mob mentality movements will. Once the peace was disturbed by the mob the protest movement gave up its right to assemble. If a citizen was part of the mob and arrested for defecating on a police vehicle, that arrest is not without cause, and the police officer should not be reprimanded for carrying out their duties in the prevention of further carrying out of doodie.
For a dissenting opinion on the Establishment Clause, and the history of its application to public discourse, to the detriment of society, please visit the Introduction to the Establishment Clause at Exploring Constitutional Law.