Question Answered by Charles H Diaz, Author, A Charter of Negative Liberties, Defining the BOR
When I answer a question like this, it is my opinion on how I see the Founders wanted things to be on the day the Constitution and Bill of Rights were ratified.
The First Amendment restricts what the Congress (Fed) can do, it doesn’t give a right per se.
“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.”
If we just take the section about speech and attach it to the beginning, we get:
“Congress shall make no law abridging the freedom of speech”
That means Congress may not make any law abridging free speech, but from a Constitutional point of view the States and the People can.
Issues like censorship can be political, moral, or social. A government that suppresses a political idea from being written or spoken is political censorship, and political speech is protected by the Constitution.
A society that chooses to limit the way a social idea is written, spoken, or viewed is not preventing what you say, write, or do, but is guiding how you say, write, or do it. That would then be a moral or social code; it would be neither censorship nor unconstitutional.
In a book a writer could write, “and then he made love to her,” or, “and then he screwed her,” or, “and then he f****d her.” They all mean the same thing, but a moral writing would use, “and then he made love to her” if the people wanted it so.
Censorship to maintain morality outside our political freedom does not prevent one from expressing an idea; it only asks that it be said, written, acted, painted, or sung a certain way. Again, moral speech it is not a constitutional issue. The people should decide, not the federal government.
A private company can restrict your speech for business purposes and that’s not unconstitutional.
As far as religious freedom is concerned, again the First Amendment restricts what the Congress may do. That portion states:
“Congress shall make no law respecting an establishment of religion,
In modern English it reads, Congress shall make no law concerning the establishment of religion. In other words, there will never be a central, federal, or state religion; there will never be a “Church of America.” That’s it!
So why did our forefathers make this the first sentence in the First Amendment?
Many Americans of the time were practicing religion under the Church of England, which, in England was not a choice. America had fought a war against a tyrant king and wanted more than anything to right the wrongs of that tyrant. In doing so, they wanted a federal government impotent in regard to religion.
Yet, in 1962, the Supreme Court agreed with five parents when they sued over a twenty-two-word prayer recited each morning at their children’s school in Long Island, (Engel v. Vitale). In their decision the court wrote, “It is no part of the business of government to compose official prayer.”
I do not know who wrote that particular prayer, but if it was a government employee, why not allow another prayer to be recited? By this decision the Supreme Court allowed the mythical barrier between church and state to be seen.
Does saying a voluntary prayer in a public school mean the government has “established” a religion?
I say no, and I think anyone with half a brain would agree.
“Or prohibiting the free exercise thereof …”
Let us put the words together: “Congress shall make no law … prohibiting the free exercise thereof.”
The only way Congress can follow this clause is by making no federal law concerning the free exercise of religion; on this issue, the federal government must remain mute.
Yet, the federal government consistently rules on what may be done or said when it comes to religion, mostly the Christian religion, in public places.
In the example above concerning a prayer, does preventing a prayer prohibit the “free exercise”?
I say yes.
Thus, IMO, the court’s decision is unconstitutional,
There is nothing in the Constitution or the Bill of Rights that mentions any separation of church and state except the first two clauses of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Remember, the Bill of Rights was written to protect the people’s religion from the federal government. If there were any protection of one from the other, it was to protect our religious beliefs and our churches from the government—not to protect the government from religion.
Banning a nativity scene or banning the utterance “under God,” or simply “God” itself, during a graduation ceremony is a government not mute, but instead a government actively engaged in the use of power to prohibit the free exercise of religion.
A Christian club using a public-school room after-hours does not constitute creating or establishing a state religion. The First Amendment tells the government to stay out, and quit prohibiting the free exercise of religion.
The only thing that violates the establishment of religion would be to create a national religion. Instead the federal government disallows any practice, and exercise thereof, through laws banning the people from exercising their religion—the exact opposite of what our forefathers envisioned.
If any disagreements about religion pop up in any state, the federal government and Supreme Court should refer the problem to the people of that state. The people will resolve the problem with their vote at the local level.
The Supreme Court must enforce the Constitution and all amendments, and so it must remain mute unless the federal government continues abusing the people’s right to freely practice their religion. The Supreme Court must reverse its mythical separation-of- church-and-state ruling.
Again, in the private sector if the government followed the Constitution there would be no problems at the workplace level.