In a rather dark time in this country for religious freedom, I’ve been invited to do a lecture in October on that curious subject of “Religious Freedom and the First Amendment.” In preparing the audience for sobering news, there is probably no better place to start than that of recalling the story of Fr. Bernard Permoli in New Orleans in 1842.
At the direction of his bishop, Fr. Permoli performed a funeral mass with an open casket in the Church of St. Augustin in the French Quarter. With this act he violated an ordinance of the city that forbade such funerals with open caskets at all Catholic churches in the city, apart from one designated mortuary chapel. The law was passed supposedly as a measure for the public health.
New Orleans had been afflicted with recurring epidemics of yellow fever, and it was thought at the time that the disease could be fed by the noxious effects of decaying plants and animals. New Orleans was one of the rare places in this country, at the time, with a high density of Catholics. And the city council that passed the ordinance was composed predominantly of Catholics.
Therein lies a fuller story, best left to another time.
Fr. Permoli was prosecuted and fined $50 for violating the law. His supporters helped to carry his appeal all the way to the Supreme Court of the United States, with Fr. Permoli invoking his rights under the First Amendment to the “free exercise” of religion. But the appeal was dispatched by the Supreme Court in a quick stroke: The Court simply explained that it had no jurisdiction to hear the case because, as everyone knew, those first eight amendments to the Constitution – the amendments that became known as the “Bill of Rights” – were restraints solely on the federal government. They were never meant to apply to the states.
For the Antifederalists, who had been resisting a new, strong national government, the main danger to freedom would emanate from that distant central government. And that was the government they sought to restrain with a Bill of Rights.
It seems to come as a surprise even to lawyers and judges to learn that there was a serious argument at the beginning about a “Bill of Rights,” and the gravest reservations had not come from the men who were reserved about rights. The concern rather was that a Bill of Rights would misinform the American people about the very ground of their rights.
Justice John Catron, author of the Supreme Court’s Permoli opinion
And so we commonly hear people speak of those rights they have “through the First Amendment” – as though in the absence of that Amendment, they would not have the right to speak and assemble. As Alexander Hamilton put it, “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature.” They were a species of “natural rights,” not rights conferred by those in power.
It is an arguable point, left to another time, that the Bill of Rights has actually worked to obscure or disparage certain rights and the persons who bear them (e.g., the right of an unborn child to the protections of the law). As Justice Scalia has pointed out, the Founders did not seek to protect rights by proclaiming rights on paper, and indeed no Constitution has been more chock full of “rights” than the old Soviet Constitution.
The Founders created a “structure” that would secure rights – mainly through the device of arming the people themselves with the vote. A people concerned about their rights would have a lever for warding off or removing the politicians who would threaten those rights.
As it turned out, it was not until 1925 that the provisions on free speech in the First Amendment would be applied by the Supreme Court to the states. As the line went, certain parts of the Bill of Rights were thought to be “incorporated” and applied to the states through the Due Process Clause of the Fourteenth Amendment.
It wasn’t until 1940 that the Court would apply to the states the provision on the “free exercise” of religion. Up to that time, what protected religious freedom in this country – other than the people themselves, who made manifest in different ways that they took that freedom seriously?
And yet only seven years later, in the Everson case, Justice Hugo Black took the First Amendment as his lever for inverting the Establishment Clause. Instead of a clause barring the federal government from interfering with religion in the States, the clause would be converted by Black and his colleagues into a clause that would work toward driving religion – and the religious – out of the public square altogether.
All of this would go hand in hand with the move to reduce “religion” to a body of “beliefs” with no claim to truth, and no claim to be taken seriously by anyone who does not share those beliefs. It may be no surprise, then, that we find no ready refuge now in invoking the First Amendment in defending religious freedom.
A more sober view would tell us that it is indeed time to start recasting the argument for religious freedom, to undo the work of the judges and the way they have misshaped, in turn, the understanding of the public.