Religious Bigotry in New Hampshire

First they came for the 5th amendment

First Amendment history

The First Amendment guarantee of freedom of religion has deeply rooted historical significance. Many of the colonists who founded the United States came here fleeing religious persecution and governmental oppression in Europe. Our founders advocated religious freedom. They sought to prevent any one religion or group of religious organizations from dominating the government. They did not want the imposition of any one religion’s will or beliefs on society as a whole. That revolutionary philosophy encompasses the principle that the interests of society are best served if individuals are free to form their own opinions and beliefs.

It is important for us to recognize that when the colonies were first established most declared a particular religion to be the religion of their region. By the end of the American Revolution, most colony-supported churches had been disestablished. The exceptions were the churches of Connecticut and Massachusetts, which were disestablished in 1818 and 1833, respectively. Religion was undoubtedly an important element in the lives of the American colonists, and U.S. culture retains religious influence today. There are over 3,000 pages of Supreme Court decisions on First Amendment cases.

Establishment and Free Exercise Clauses

The First Amendment in our Bill of Rights has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from “establishing” a state religion. The precise definition of “establishment” remains unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England. Today, what constitutes an “establishment of religion” is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the “Lemon” test, government can assist religion only if:

(1) The primary purpose of the assistance is secular,
(2) The assistance must neither promote nor inhibit religion, and
(3) There is no excessive entanglement between church and state.

There are two specific applications of the Establishment Clause:
1. Congress cannot establish any official religion of the U.S. and
2. Congress cannot establish any law on the basis of religious belief

The Free Exercise Clause protects our right to practice religion as we please. There is a constraint though, the practice must not run afoul of a “public morals” or a “compelling” governmental interest. For instance, in Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.

Conflict resolution

When the Establishment Clause and the Free Exercise Clause come into conflict. The federal courts resolve such conflicts, with the Supreme Court being the ultimate arbiter. The Gov’t must protect the right of individuals to freely practice their religious beliefs: for example: A student or teacher can pray during school, if they do not disturb others in doing so. Similar cases to Engel v. Vitale deal with religion in schools and the Establishment Clause of the First Amendment.

Religious Bigotry in NH: The Blaine Amendment

The First Amendment only refers to Congress. The U.S. Supreme Court however, has held that the Fourteenth Amendment makes the Free Exercise and Establishment Clauses also binding on states. That was done via Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 [1940], and Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 [1947], respectively. So, if religious bigotry is undesirable, and if the First Amendment applies to the States, then shouldn’t New Hampshire’s Blaine Amendment be repealed? Isn’t it interesting that our legislature has made a conscious decision not to act? Is inaction what passes for progressive leadership in the Granite State?

Blomquist, Robert F. 2003. “Law and Spirituality: Some First Thoughts on an Emerging Relation.” UMKC Law Review 71.
Haarscher, Guy. 2002. “Freedom of Religion in Context.” Brigham Young Univ. Law Review 2002.
Semonche, John E., ed. 1985. Religion and Law in American History. Chapel Hill: Univ. of North Carolina Press.
Skotnicki, Andrew. 2000. Religion and the Development of the American Penal System. Lanham, Md.: Univ. Press of America.
Spiropoulos, Andrew C. 1997. “The Constitutionality of Holiday Displays on Public Property (Or How the Court Stole Christmas).” Oklahoma Bar Journal (May 31).
Williams, Cynthia Norman. 2003. “America’s Opposition to New Religious Movements: Limiting the Freedom of Religion.” Law and Psychology Review 27.