Older readers will recall that our Founders, worried that the Constitution wouldn’t be approved unless they sweetened the deal, amended the first draft. They added Ten Amendments known as the Bill of Rights, not to be confused with the Ten Commandments, seen by many as the Bill of Wrongs.
Amending wasn’t easy without spell check but the Good Ol’ Boys got everything quilled, inked, and distributed and by 1791 the Constitution was finally ratified.
The Bill of Rights clarified that ordinary people had Rights ( a novel concept at the time) so future generations wouldn’t pester the Supreme Court every five minutes to learn what, exactly, was covered by “Certain Unalienable Rights” and “the Pursuit of Happiness.” We The People wanted to know: How happy should We be? Times being what they were, no one thought to add a footnote explaining that “We” did not include women, slaves, non-binary genders, or other sentient creatures, all of whose rights remained perfectly alienable.
Confident that Faith would lubricate any social frictions, the Founders stuck Free Exercise of Religion as a “right”’ in the very First Amendment. They hoped it would protect the New Nation from the bloodbaths that ravaged Europe in the years between 0 and 1791 when – in their zeal to lead God-fearing lives and rid the world of Evil – Christians killed, quartered, and burned each other like cordwood. [NOTE: To backstop Religion, the Founders added the 2nd Amendment’s Right to Keep and Bear Arms, in case heathen savages, uppity slaves or an infertile housewife needed some immediate Salvation.]
As we’ve often seen, the Founders could have been more precise in their draftsmanship, for it seems many of today’s religiously-inclined believe that the right to Freely Exercise their religion means they can freely exercise it on everyone else, no matter how annoying, outrageous, or offensive that might be.
Thus, religious bakers refuse to bake wedding cakes for LGBTQ couples, religious county clerks refuse to marry them, pious CEOs of hobby stores, corporations, and universities refuse to include birth control in their employee insurance plans, and legislative high priests are determined to abort a women’s right to abortion.
But what about the Rights of those denied marriage certificates, wedding cakes, birth control, the right to choose, etc., because what they want happens to offend other people’s religious beliefs? Are they not entitled to Pursue Happiness?
Lo, perhaps the answer lies in simply inventing their own religion.
In the 1993 U.S. Supreme Court case of Church of the Lukumi Bablu Aye v. City of Hialeah, the city banned a Santeria church’s practice of animal sacrifice (yes, the whole throat-slitting thing) as a violation of the city’s law against animal cruelty. The Court disagreed, holding that “free exercise of religion” meant the city could not stop the church’s live animal sacrifices that were part of its religion. Scary enough, even before Justice Scalia added his two cents.
While the First Amendment states: “Congress shall make no law respecting an establishment of religion,” courts have struggled with deciding what “religion” is. It seems a religion is pretty much whatever its inventors and adherents say it is, and courts may one day confront plaintiffs whose Faith commands them to feed puppies into wood-chippers, or light a candelabra of Republicans to celebrate Solstice.
If so, at any moment Religious Exercise could plunge the nation into another National Emergency while it is still helplessly convulsed with laughter from the current one.