Robert  Charles

Talk of religious freedom and limiting it, seems to be everywhere these days. The US Supreme Court affirmed the right recently of townships to say a public prayer before a local meeting, which seems rather like declaring the sun’s right to rise in the East, if you consult the Founding Fathers’ writings – and their practices.

Meantime, atheist devotees – if there is such a thing as a formal devotee to atheism, since that might make them religious followers of non-worship – are trying to create the first non-religious religious chaplain in the military. Confusion seems to abound about what restrictions the Founder’s intended for State involvement in religious activities, and what freedoms they wholly expected never to be infringed by the State.

This confusion extends from prayer at local meetings – which a dissenting minority of the US Supreme Court still seems to be confused about – to turning military chaplains into atheistic psycho-babblers. It extends from limiting local control over long-established religious prerogatives to widening the natural divide between Church and State. Nevertheless, the essential confusion is simple – and resolvable by recourse to the Founders’ clear intent.

The core confusion that prevails today, whether we talk of religious freedom to erect a public crèche and cross or a community’s decision to demur, is the meaning of two phrases that appear in the First Amendment to the Bill of Rights. As Americans, we share a conviction that the Federal government shall never establish a “State” religion – and the parallel conviction that no State shall do so, pursuant to the application of the First Amendment to the States, through the Fourteenth. The operative phrase is this: “Congress shall make no law respecting an establishment of religion …”

At the same time, we share another conviction, namely the freedom to worship The Creator – or not to worship – as each and every individual American may choose. That religious freedom – indeed, the individual’s free choice to worship or not, and a community’s ability to defer to the majority in all religious traditions – is often traced to another portion of the First Amendment. That operative phrase is the second of that Federal proscription. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Robert Charles

Robert B. Charles is a former US Court of Appeals clerk, litigator and adjunct professor at the Harvard Extension School. He served as Assistant Secretary of State under Colin Powell, and presently heads a consulting firm in Washington DC.