A Constitutional look at The Blunt Amendment

by Larry Allen Brown

The Blunt Amendment violates the constitution for the simple unavoidable fact that the first Amendment, (Religious Liberty) which the Republicans are claiming is their basis, clearly states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The Republicans are leaping with both feet on the “Free- Ex” clause of the amendment and waving it wildly in the air, while ignoring the “Establishment Clause”. That won't get them anywhere.

The First Amendment forbids not only establishments, but also any law respecting or relating to an establishment. Most importantly, it forbids any law respecting an establishment of "religion." It does not say "a religion," "a national religion," "one sect or society," or "any particular denomination of religion." It is religion generically that may not be established.

Compare these two phrases:

• Congress shall make no law...prohibiting the free exercise thereof;

• Congress shall make no law...abridging the freedom of speech.

Clearly the first example makes no sense on its own. It must refer back to the establishment clause to get its meaning. When Rick Santorum stands on his soap box and preaches “Whatever happened to the first amendment right to Free Exercise of Religion?”; he says this being completely oblivious to the wording of the amendment he is citing. His argument is over birth control, which is not a religion. However, he’s framed it as such. He is claiming birth control as religion. When he cites the free exercise of religion he must refer back to the establishment clause for his definition.

If the framers meant what they said and said what they meant, then Congress may abridge the free exercise of religion so long as Congress does not prohibit it. “Freedom of religion embraces two concepts, - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be”. Cantwell v. Connecticut

The establishment clause does more than ban the federal government from establishing religion; it bars even laws respecting establishment. The Blunt Amendment establishes religion.

The First Amendment does not say that Congress shall not establish a religion or create an establishment of religion. It says "Congress shall make no law respecting an establishment of religion". Whether "respecting" means honoring or concerning, the clause means that Congress shall make no law on that subject. The ban is not just on establishments of religion but on laws respecting them, a fact that allows a law to fall short of creating an establishment yet still be unconstitutional. Again…the Blunt Amendment constitutionally fails on these grounds.

An overlooked aspect of the free exercise clause which is a blind spot among Republicans, and especially Rick Santorum…the lawyer who should know better, is that it looks back to the establishment clause for its definition of "religion." The establishment clause says that Congress may make no law respecting an establishment of "religion," while the free exercise clause says that Congress cannot prohibit the free exercise "thereof." Logically, the word "thereof" must have the same content as the object to which it refers. Accordingly, what counts as "religion" for one clause must count as "religion" for the other.

The free exercise clause makes no sense unless the word "religion" is read to encompass more than a church, denomination, or sect. The state abridges free exercise when it interferes with only small parts of an individual's religious practice. The state, for example, abridges free exercise when it tells students they cannot pray during school, even if it allows them complete freedom to practice all other aspects of their faith. Similarly, the state cannot tell a church it must provide contraception coverage even if the church is otherwise left free to use its property as it wishes. The Obama Compromise deals with this. Private prayer and contraception are protected by the free exercise clause despite the fact that neither of these practices constitutes religions in and of themselves.

If prayer and contraception count as "religion" for the purposes of the free exercise clause, they must also count as "religion" for the purposes of the establishment clause. Just as the state abridges religion when it tells a student she cannot pray, so too does it establish religion when it requires prayer to be said in the schools. Just as the state abridges religion when it tells a church it must provide contraception coverage, so too does it establish religion when it makes a law that would deny contraception coverage to people based on a religious exemption to those outside the realm of the church at public expense. The state does not cross the line to establishment only when it goes to the trouble and expense of setting up a state church; it crosses that line when it sets up any religious practice that constitutes "religion" for the purposes of free exercise. To the extent that Republicans want to read the "thereof" in the free exercise clause broadly, they must also accept a broad reading of "religion" in the establishment clause.