COLUMN: Controversy over the First Amendment – Crow River Media

The First Amendment to the U.S. Constitution was initially adopted is 1791 and simply 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.

Since then, a great many interpretations and Supreme Court decisions have used this amendment as a highly controversial instrument to foster a wide variety of social programs. Most recently, arguments by some federal judges have been used to oppose the immigration rules issued by President Trump on the grounds that those rules are in conflict with the First Amendment since they target the Islamic religion. Lets review what the U.S. Supreme Court has had to say, in the past, on a few key cases:

In 1878, one clarification was made: Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order. In Reynolds v. United States (1878), the Supreme Court found that while state or federal laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (such as human sacrifices). The court stated that to rule otherwise, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Therefore, the government would exist in name only, under such circumstances.

Another, more recent, argument can be found in 1998, when the Congress passed the Religious Freedom Restoration Act, seeking to restore the compelling interest requirement applied in Sherbert and Yoder. In the City of Boerne v. Flores (1997), the court declared: that it is time enough for the rightful purposes of civil government for its officers to interfere, when religious principles break out into overt acts against peace and good order. Notably, while a religion may hold opinions contrary to U.S. law, they are not free to act on those opinions without suffering the consequences of breaking the law.

While I am not a lawyer, the problem yet to be resolved, seems to be: Can the USA act against statements made by a religion in which they threaten to do something that is contrary to U.S. law, or is it necessary to first, allow such actions to take place before it is allowable to take legal action?

Lets try and construct a hypothetical example so as not to upset or offend any of the more than 14 recognized religions in the world with more than 35,000 organized denominations, or subsets, of the known religions. Then lets decide what rational and legal actions are permissible under U.S. law to deal with the problem of religious fanatics from a hypothetical group seeking to entering the USA.

Assume some religious denomination, called the Red Rabbit religion and located primarily on Rabbit Island, have stated their intent to come to the USA to kill all people with red hair because they believe that they are, in some way, offensive to their god. We recognize, in the First Amendment, that they have the right to hold this strange opinion but they do not, according to Supreme Court rulings, have the right to take actions, on that belief, resulting in the death of innocent people, at least within the USA.

To cope with this hypothetical situation, we have some of the following options:

1. We could require all red-haired people in the USA to dye their hair so as not to offend this fanatical group of people. But this would violate the general freewill provisions of the Constitution.

2. We could impose a travel ban on all people from Rabbit Island. But this would restrict the rights of the nonbelievers in the Red Rabbit religion, and inconvenience others.

3. We could open the boarders to all Rabbit Island people and try to protect red-haired citizens within the USA from being attacked. But this would be impractical, expensive and would likely result in the death of numbers innocent people.

4. We could require an in-depth examination, or vetting, of anyone seeking to enter the USA from Rabbit Island. But since extremists are likely to lie about their intent or enter illegally, this is not a complete protection option.

5. We could try to convert the radical Red Rabbit people to follow a more acceptable religious view. But they have vowed to attack anyone who speaks of another religion on Rabbit Island.

Are we then doomed to wait for some overt action to take place within the USA before we can take any effective legal action or do we have a moral duty to do our best to prevent such actions? If the Red Rabbit group clearly intends to conduct overt acts, in violation of peace, social duties and subversive to good order, the imposition of regulations to prevent people holding such a declared intent seems fully justified. Freedom of religion means freedom to hold even peculiar ideas, however, freedom to act on those ideas is not granted by any normal reading of the First Amendment to the U.S. Constitution, in my opinion.

In addition, it seems clear that the president has the duty and authority to ban immigration from any country or any group of people who he deems to be a threat to the safety and security of the people of the USA. It is possible for a federal judge to delay and attempt to justify his actions, based on the First Amendment, but it is most certainly not logical nor in the interest of the people in the USA to allow this to continue for any length of time.

Orville Moe is one of several community columnists who regularly contribute to this page.

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COLUMN: Controversy over the First Amendment - Crow River Media