How Does the Constitution Protect Religious Freedom?

By Robert A. Goldwin; Art Kaufman | Go to book overview

of life, how much more is it to be desired in the affairs that lie even closer to the heart!

That is exactly the perspective in which the Constitution places these matters. The first clauses of the first article of the Bill of Rights provide uniquely for religion a status insulated from both governmental regulation and governmental aid, which inevitably invites and leads to regulation. That status is continually at risk of being modified to match the pervasive permeation by government of other areas of life. Whatever may be the case in those areas, the realm of religion is constitutionally sui generis, and free enterprise should prevail there forever whether it does anywhere else or not.


Notes
1.
See Michael J. Malbin, Religion and Politics:The Intentions of the Authors of the First Amendment ( Washington, D.C.: American Enterprise Institute, 1978); and Robert L. Cord, Separation of Church and State:Historical Fact and Current Fiction ( New York: Lambeth Press, 1982).
2.
E. S. Corwin, "The Supreme Court as National School Board", Law and Contemporary Problems, vol. 14, no. 3 ( 1949); E. N. Griswold, "Absolute Is in the Dark", Utah Law Review, vol. 8 ( 1963), p. 167; T. M. Cooley, Principles of Constitutional Law ( Boston, 1898), pp. 224-25; and Joseph Story, Commentaries on the Constitution ( Cambridge, Mass.: Hilliard, Gray, 1833), vol. 2, sees. 1870- 79.
3.
Malbin, Religion and Politics, p. 15.
5.
Leonard W. Levy, "School Prayers and the Founding Fathers", Commentary ( September 1962); emphasis in original. See his more recent work expanding on this theme, The Establishment Clause ( New York: Macmillan, 1986).
6.
Abington Township v. Schempp, 374 U.S. 203 ( 1963).
7.
Richard E. Morgan, The Supreme Court and Religion ( New York: Free Press, 1972), p. 186; emphasis in original.
8.
See Walter Berns et al., Religion and the Constitution ( Washington, D.C.: American Enterprise Institute, 1984), p. 23.
9.
Perry Miller, Roger Williams ( Indianapolis: Bobbs-Merrill, 1953), pp. 198, 133; cited in Dean M. Kelley, "Beyond Separation of Church and State", Journal of Church and State, vol. 5 ( November 1963), p. 188.
10.
Miller, Roger Williams, pp. 136-37.
12.
See Christofferson v. Church of Scientology, Oregon State Court of Appeals, May 3, 1982; and George v. ISKCON, Superior Court for County of Orange, Case No. 27-756S.
13.
For example, the Charter of the City of New York.
14.
Cf. Lynch v. Donnelly, 465 U.S. 668 ( 1984).
15.
Marsh v. Chambers, 463 U.S. 783 ( 1983).
16.
Cf. Larson v. Valente, 465 U.S. 228 ( 1982).

-139-

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