Louisiana and the First Amendment

April 17, 2014 § 12 Comments

It seems that the Louisiana House of Representatives is poised to vote on a measure that would designate the Holy Bible as the “official state book” of Louisiana.  Technically, this would have as much weight as the designation of the brown pelican as the official state bird of Louisiana.  But, in practice, this would pack a major wallop.

But is it legal?  The First Amendment of the Constitution states:

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.

And while this refers specifically to the United States Congress, the Constitution of the United States applies to the states and local governments as well (similarly, the constitutions of the various states can impact upon federal law and practices).  In other words, the designation of the Holy Bible as the Official State Book of Louisiana appears to violate the part of the First Amendment that reads “Congress shall make no law respecting an establishment of religion,” in that it appears to give preferential treatment to Christianity over all other religions.

Louisiana is an overwhelmingly Christian state insofar as religious identification goes.  Somewhere around 90% of the state’s population identifies as Christian.  The next religious identification is no religion, at 8%, while Muslims, Buddhists, and Jews are all less than 1% of Louisiana’s population.  So clearly Louisiana is a Christian state in practice.  But, I’m not entirely sure it can identify as such officially.

Before someone gives me hell for saying that opposition to the Bible being designated the official book of Louisiana tramples religious freedoms, it doesn’t.  That’s not how “the free exercise” of religion works under the Constitution.  The free exercise of religion does not grant the right to trample upon others’ rights, nor does it allow for official religions.  The First Amendment simply states that the state itself cannot impede on the free practice of religion.  However, the courts maintain the right to mediate what religion actually is and how it might be practiced.

The measure has yet to pass the House of Representatives, let alone the state Senate, though I’m sure Governor Bobby Jindal would sign it into law.  IF that were to happen, it will be interesting to see what comes next, whether the ACLU or any other organisation would threaten legal action.  And if it were to get as far as the Supreme Court, even with the court’s recent right turn (the Roberts court has been remarkably centrist), I don’t see how it could uphold such a move by the Louisiana state government.

I find this larger discussion of the Constitution interesting given my new research project, which examines the role of history and memory in far right political circles in the United States.  Central to this project is an understanding of the Constitution, as well as the intentions of the men who wrote it in Philadelphia in the summer of 1787 and its subsequent implementation, practice, and interpretation since.

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§ 12 Responses to Louisiana and the First Amendment

  • blgrieb says:

    Really trying to see why this is unconstitutional. I don’t. And it should be. Hmmmm Sent from my iPhone

    >

    • At least according to the ACLU it violates the First Amendment by giving official imprimatur to the holy book of Christianity, which effectively means the state has violated the injunction against established religion.

  • I think the First Amendment kind of is a double standard on THIS topic. They can’t “raise” Christianity above other religions, but they also could not technically disallow a government voted in by the people to vote in the way their districts think they should vote. This is probably the most interesting paradox I’ve read in awhile. I’m off to ponder…

    • Thanks for reading.

      Interesting point. Worth pondering. But the Bill of Rights is there to limit the government in its actions (though it doesn’t apply to non-government actions, hence the hullaballoo over A&E and Duck Dynasty was not a First Amendment issue). So I’m not sure that the government CAN create the Bible as the official book. But, that’s what makes the Constitution so much fun!

      • The Bill of Rights and freedom of religion- My understanding is that Congress cannot ban religions, not necessarily that there can be nothing religious in government. I don’t think they should pass that law, AT ALL, but I’m not sure it’s entirely against the Constitution for them to do so.

        Aside from that, the government already makes laws about religious institutions, or they wouldn’t be tax exempt. 😀

      • Ah, but tax exemption is part of the second part of that clause, about the freedom of practice. There can be God in government, “One nation under God” and all that — but. That doesn’t mean that the government can establish a preference in religion. Most of the Founding Fathers were skeptical of organised religion, including and especially Jefferson.

  • Brian Bixby says:

    A few points, according to my understanding:

    – The First Amendment originally did not apply to the states; indeed, Massachusetts had a religious establishment until 1833. However, SCOTUS has since interpreted the “due process” clause of the 14th Amendment as incorporating most of the Bill of Rights at the state level.

    – I don’t believe the courts can actually say much about what religion is or how it is practiced. However, they can restrict its practice when the state has a strong reason for doing so. You can’t practice human sacrifice, because human life outweighs religious liberty, for example.

    – It’s a common argument among certain groups of Christians that the First Amendment bars the state from interfering in government, but not vice versa. So they protest the Jeffersonian wall of separation. I don’t think that analysis stands up to Roger Williams’s critique, which points out that religions interfere in politics in order to use the state to interfere in religion.

    – Another way the First Amendment was characterized at the time was as demonstrating the complete indifference of government to religion; in fact, there were some who protested the First Amendment on the ground that once religion was mentioned in the Constitution, it implied the ability to legislate upon it. This “indifference” position is one reason why some early Presidents opposed the incorporation of religious bodies: it was the state meddling in the affairs of religion.

    – I don’t think tax exemption was considered to flow out of the First Amendment, although logically it seems it might. The “indifference” view seems to have prevailed here. Instead, religious tax exemption has usually been joined with charitable and educational tax exemption.

    – Less familiar to people today is that several states, in their effort to separate church and state, actually banned ministers from running for office. I don’t believe any of these bans stand today.

    Sorry I’m going on at such length, Matthew. But it’s a convoluted and controversial topic, and I’m as opinionated as the next man. And it goes without saying I could be wrong, too. You’re researching this, I am not.

    • I appreciate the commentary. In all honesty, it’s near impossible to figure out what’s “right” and “wrong” here. I base my argument on SCOTUS interpretations, and legal theory, but that doesn’t make it right. Hence the on-going controversy of the First Amendment.

      • Brian Bixby says:

        Fair enough. The Founders were not always precise, not always in agreement, and did not (and often could not) anticipate the situations that have come up since.

        By the way, after I wrote my comment, I found that Tennessee’s state constitution (article IX section 1) still bars ministers from holding office, though the provision is considered unenforceable due to SCOTUS decisions. The rationale given is not separation of church and state, but the importance of ministers doing their duty as ministers. So not quite what I thought, based on secondary sources.

      • Ah, and therein lies the genius of the Founding Fathers. They were ambiguous, by design as far as I can tell, to allow the young Republic to grow and while they tried to be as elastic as possible for future growth, they couldn’t anticipate the country even 50 years on.

        As for Tennessee, funny you should mention its constitution, I was teaching Reconstruction today.

        But that is kinda funny. There are, of course, many provisions of various state constitutions that have been rendered moot by SCOTUS.

  • Brian Bixby says:

    Oh, and in my third point, that should read, “the state interfering in RELIGION” not “government.” Gaak! If only I could proofread my own writing!

  • […] wrote about this last week, raising questions of the First Amendment’s injunction against an established religion.  In […]

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