Mentioning the phrase “freedom of speech” or “separation of church and state” to the casual American observer commonly stimulates a seemingly automatic connection to the First Amendment. American society is inundated with references to the First Amendment from popular television series, radio talk shows, and, whenever popular media deems it newsworthy, front page treatment from major newspaper markets. The references are clear to a point, explicitly drawing on arguments and how case law is affected by precedents set by the outcome of hearing cases calling for definition of the provision. However, most readers are not aware of the full extent and power of the First Amendment, more importantly the specific detailed provisions. The full text of the amendment reads thus: “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.”. As the text is quite terse, one would think the possible interpretations would be limited, but just the converse is true. The available interpretations of the provisions are attributed to some of the most heated legal battle ever recorded.
There are a number of significant cases which set precedents which in turn shaped law for contemporary society. In the following examples, the reader will note the facts, opinions, and findings of three significant court cases. In one particular case, the reader will note the confusion which can occur when a single case calls into question more than one of the provisions and the confusion stemming from that combination. Following each case description, there will be a summary of how the findings of each of these cases affect legislation.
The first provision of the first amendment for review is the Establishment clause. Simply put, this two-part provision strictly prohibits the establishment of a national religion and the preference of one religion over another. More commonly know as the provision providing “separation of church and state”, the clause can be interpreted in one of two ways: “Separationist”, in which the two institutions share no quarter or responsibility, or “Non-preferentialistic” meaning should religious aid be required, the government will make no accommodation for a specific religion should one be required. The creation of the clause is attributed as a reaction the Church of England, which was established as the official Church of England and some of the colonies of the recent colonial era. The fear being the Church would wield too much power of the government. Being that the Church does not rely on an earthly body of person for oversight, the Church, through which claims only takes direction from God, could literally legislate in any fashion deemed appropriate to further itself. This fact is made even more untenable due to the fact that only the Church could claim an audience with God, where a layperson has no
The first case in review is Engle v. Vitale. Heard in 1962, the case came under consideration because of a New York City policy requiring each school day to begin with a prayer written by the state Board of Regents, The findings of this case are the foundation for all school-prayer cases. The case was filed by the parents of students at a high school complaining the prayer, containing the phrase “Almighty God” contradicted their religious beliefs. The opinion, authored by Justice Hugo Black, is interpreted as reading the Regents, a governing arm in the employ of the state, may not dictate a required prayer to the children in their care. The lasting impacts of are felt to this day with the enduring legislation which does not allow prayer in school, as this was seen as a way of promoting a specific religion.
The findings were further clarified when the court heard Abington Township School District v. Schempp, where the Pennsylvania Township had a required bible devotional reading requirement. The requirement was struck down by the court, as it was found to be against the Establishment clause of the First Amendment, where government is not supposed to establish or show preference to any particular religious following. The township was in violation in that it required reading from a tome representing a single religion. The impact of the litigation is that now teachers and administrators may not “promote or denigrate” any religion, remaining firmly neutral in terms of teaching or curriculum.
The next case for review was heard in 1919. Titled Schenck v. United States, created a need for clarification when Schenck, a Socialist, was observed distributing leaflets to recently drafted man, which cited the Thirteenth Amendment's provision against “involuntary servitude”, and urged the newly drafted men to “assert opposition to the draft”, describing it as an immoral act driven by a Capitalist system. The leaflets proposed peaceful resistance, such as petitioning to repeal the Conscription Act, which would make the draft illegal. Schenck was arrested on charges of conspiracy to violate the Espionage act by attempting to cause rank and file soldiers to break rank in addition to interfering with recruitment. Schenck's defense was based on the First Amendment's provision of free speech, citing the protection afforded to Schenk during the act of distributing the leaflets with his original thoughts and arguments.
