Gay marriage, religious freedom, and the First Amendment

Recent events force us to stop in the middle of our series on what’s in the Bill of Rights to circle back to our post on the First Amendment-–the celebrity amendment. The Supreme Court’s ruling in favor of marriage equality has led to a firestorm of protest from people who say our First Amendment right to religious freedom is being tramped. They are wrong.

Let’s revisit the text of the amendment:

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.

The “free exercise” of religion means freedom to worship. That’s it. Our First Amendment religious right is to worship as we see fit. Since Congress will not “establish” a religion—i.e., make it the official state religion—everyone is free to worship as they wish.

Worship is generally defined as attending a religious service, but it can be extended to prayer, pilgrimage, wearing one’s hair a certain way, and dressing and eating a certain way.

What worship is not defined as is belief. This is the crucial misunderstanding so many Americans have. Worship is an outward manifestation of belief. But it is not belief itself. And that’s why the First Amendment says nothing about religious belief. Absolutely nothing at all. This is what makes separation of church and state possible: religious belief is not allowed to determine what services the state provides. This means people who have certain religious beliefs can’t be refused state services, and it means that people who have certain religious beliefs can’t refuse to provide state services to people their beliefs condemn.

That’s why all these “religious freedom” bills being passed are bogus. They enshrine beliefs as rights (this is nowhere in the Constitution) and then say the First Amendment protects those beliefs by allowing people to refuse to serve others because their religion says to. Beliefs are amorphous. They are not concrete activities like worship. Anyone can have any belief they want, and their right to express those beliefs is protected. But if that expression comes in the form of refusing state or federal government services, then they cross a line by saying the state or federal government must conform to their beliefs.

This is what’s happening when county clerks refuse to issue marriage licenses to gay couples. The clerks are saying their right to do so is protected, but it is not. If something is legal in this country, the government must provide it—end of story. If people feel they cannot do that, then they should resign their position (quit their job). You cannot refuse to uphold U.S. law on the basis of your religious beliefs. The First Amendment specifically says this by saying Congress shall establish no religion.

On NPR this morning, Tammy Fitzgerald, Executive Director of the North Carolina Values Coalition, said this:

Religious freedom is what our country was founded upon. That is why the Pilgrims came to America, because they were being persecuted in Europe for their religious beliefs.

Of course she is wrong on both counts. The Pilgrims, as faithful and patient HR readers know, came to America because they wanted the freedom to practice their own religion. This is not the same as freedom of religion. They did not allow any other religion than their own in Plimoth. The Puritans, which is who Ms. Fitzgerald probably was thinking of, did not allow freedom of religion either. Those two groups wanted to establish states where their religion was the sole state religion, and they did not tolerate any other religions. The same was the case in Virginia (strictly Anglican).

The Declaration of Independence does not mention religion one time. The Constitution did not mention it until the First Amendment was added. So it’s hard to say that our country was “founded” on religious freedom.

And, as we know, when the Founders wrote the First Amendment, they protected freedom of worship only, which, as we’ve made clear, is not the same thing as saying “your religious views are allowed to overturn federal law and you can do whatever you want if it’s part of your religion.”

Insisting that states pass laws protecting the right to do whatever people want so long as they say it’s part of their religion is a way to establish a state religion: it makes public access to government services dependent on the religious beliefs of government employees. That is NOT in the First Amendment, and Americans who know this must dedicate themselves to teaching those who don’t.