The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographical Essay: Ellen Frankel Paul, Laissez Faire In Nineteenth-century Britain: Fact Or Myth?
• I: Legal Philosophy
• The Minos: What Is Law?
• Obedience to Law
• Moral and Legal Justification
• Early First Amendment Theory
• The First Amendment & Freedom of Expression
• The First Amendment and Religion
• The First Amendment Vs. the Cpi
• The Economics of Strict Liability
• The Rule of Law In American Politics
• II: Political Analysis
• Society, State, and Right In Proudhon
• Human Rights and Political Change
• Carter's Human Rights Policy
• Locke's Tolerance: Prudence Or Right?
• Political Intolerance
• Hayek: Reason, Relativism, and Liberty
• Hayek On Coercion and Freedom
• “advanced Liberalism” As Managed Capitalism
• Common Good & Public Interest
• Uncrowding the “commons”
• Milgram: Obedience, Authority, & Legitimacy
• Syndicalism & “the Servile State”
• The Parisian League
• Conservatism In Spain
• Soviet Intellectual Orthodoxy
• The Clergy & the American Revolution
• Russian & American Defenses of Servitude
• Croce's Hegemony: How to Win Minds
• III: War and the State
• Just War and Rights
• Just Wars Vs. No Wars
• Walzer & Just War
• Wartime Propaganda Tactics
• Iran, Oil, and the Cold War
• The State and Oil Policy
• San Francisco & the Military Complex
• Protectionist Assaults On Developing Countries
• Government Military Behavior
• IV: Political Economy and Theory
• Three Kinds of “capitalism”
• Adam Smith: Economic Utilitarian
• Roepke: Laissez Faire and Social Order
• Government-induced Boom & Bust
• Austrian Vs. Neoclassical Methodology
• Professor Friedman's Instrumentalism
• Milton Friedman's Critics
• Entrepreneurship and Justice
• Externalities & Government Intervention

The First Amendment and Religion

Henry J. Abraham

• University of Virginia at Charlottesville

“The Status of the First Amendment's Religion Clauses: Some Reflections on Lines and Limits.” Journal of Church and state 22(Spring 1980):215–232.

Mr. Abraham is convinced that the free exercise of religion guaranty of the Constitution is probably better, in civil libertarian terms, than any other provision of the Bill of Rights. Constitutionally, the First Amendment was drawn, adopted, and understood to be a guarantee against any Congressional action prohibiting the free exercise of religion. It has become nationalized by interpretive extension. The “religion clauses consist of two components: prohibition of the free exercise of religion and prohibition of a federal establishment of religion are declared unconstitutional. Judicial extension of these guarantees was extended beyond its intent to circumscribe federal action only in 1934 in Hamilton v. Regents of the University of California with respect to the free exercise guarantee, and in Everson v. Board of Education of Ewing Township in 1947 with respect to the establishment clause.

Abraham finds a “commendably ascending commitment to a maximum regard for free exercise,” even when that exercise-cum-action does not sit very well with the body politic. The exception is the broadly controversial issue of conscientious objection to military service. Recent litigation has raised some rather novel, if not specious, claims to first amendment “protection” claims. Such novel claims include the claim by a “fanatically devout” public school teacher that the school's celebration of Halloween constituted a “pagan observance of every evil and wicked thing in the world” and thus violated his religious conscience. Abraham suggests that the mere fact that such challenges would be litigated “is living testimony to the high value the American body politic and its governmental organs bring to bear upon our religious prerogatives.”

By contrast, with respect to the separation of church and state clause (which was intended to prevent the federal government from giving preferred position to any religious body) Abraham feels that “once again that omnipresent and omnipotent alliance of lawyers and politicians has done us in.” Jefferson's concept of the “wall of separation between Church and State,” he asserts, has been demonstrably eroded. Three principle theories have come to be advanced as more or less compatible with the establishment clause. These are: (1) the “Strict Separation” or “No Aid” theory, which presumably interprets the constitution to require strict separation; (2) the “Governmental Neutrality” theory which requires state neutrality towards religion; and (3) the “Governmental Accomodation Theory,” likely the controlling one today. This theory holds that some reconciliation of the clash between church and state over the free exercise clauses can be accomodated under the “child benefit” doctrine (unless the children benefitting happen to attend racially segregated schools). Abraham sees an “alarming development” in the judiciary's “relaxed vigilance” in interdicting support for educational services in nongovernment schools.