Is the 1st Amendment the same with or without the 2nd clause?

[Jayhawker Soule]

From Free Exercise Clause:

The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. Free-exercise clauses of state constitutions which protected religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause.​

• The Clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggest that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws."
• The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.

Historically, the Supreme Court has been inconsistent in dealing with this problem. At various times, the Court has either applied a broad or narrow application of the clause.​

 

[9-10ths_Penguin]

Here are the 1st Amendment clauses:

1. Congress shall make no law respecting an establishment of religion,
2. or prohibiting the free exercise thereof;
3. or abridging the freedom of speech,
4. or of the press;
5. or the right of the people peaceably to assemble,
6. and to petition the Government for a redress of grievances.

It seems the 2nd clause is unnecessary if you take into account the 4th & 5th clauses.

Would any rights be taken away if the 2nd clause were omitted?

Here are the 1st Amendment clauses:

1. Congress shall make no law respecting an establishment of religion,
2. or prohibiting the free exercise thereof;
3. or abridging the freedom of speech,
4. or of the press;
5. or the right of the people peaceably to assemble,
6. and to petition the Government for a redress of grievances.

It seems the 2nd clause is unnecessary if you take into account the 4th & 5th clauses.

Would any rights be taken away if the 2nd clause were omitted?

The American constitution doesn't explicitly enshrine freedom of conscience as a right. The 2nd clause of the First Amendment seems as close as you guys get.

The 4th and 5th clauses wouldn't cover things like:

- personal religious rules (e.g. keeping kosher or halal)
- personal private prayer


And I'm not sure that the 5th clause would be enough to enshrine, say, the right of a congregation to hire paid clergy.

 

[PureX]

Yes, I agree. What I'm saying is no different from saying that a restaurant employee is free to use the restroom, but once they're done they have to wash their hands before they get back to work.

In this case, they were not free to use the restroom, either.

 

[Nakosis]

Hmm, that's not what I was thinking of when I said that it does seem to make sense.

In this case, it is a case of violation of the establishment clause. Not using state funds to hire a chaplain isn't the same as barring those who are religious from serving as legislators, for one thing. They can pray during their own time in their own churches or places of worship, and pay out of their own pockets; now if - say - they were to get arrested for doing this, then yes, it would be an infringement on their freedom of religion. A legislative session is only supposed to be for state (or federal government) business, not free religious services paid for by taxpayers.

Bottom line is based on the 1st clause, there simply shouldn't be any prayer or chaplains, even if legislators voluntarily paid to hire one out of their own pockets, involved in any legislative sessions at all - local, state, or federal. This doesn't conflict with any of the other clauses or any other part of the US Constitution.

Sure the 1st and 2nd clause often come into contention. One separates church and state. The other allows it to sneak back in.
I think that was the intent, to allow legislators to legislate according to their religious beliefs while at least giving lip service to a secular state.

It, imo, allows the SCOTUS to fudge in their rulings regarding religion if they are so inclined. Just why it is there, not so much whether it ought to be there.

 

[Twilight Hue]

That's actually false. The exercise of religion does not extend beyond the laws of the land. So when the laws of the land prohibited mass assemblies of people to prevent sickness and death from a pandemic, and some people broke those laws because of their religion, those people were still on the wrong. Because being religious does not override obeying the laws of land.

And the laws against assembly in that situation were not aimed at countering any religion. They were aimed at countering a pandemic.

Actually the protections are in the Constitution which were violated.

 

[HonestJoe]

Would any rights be taken away if the 2nd clause were omitted?

I'd say so. In simple terms, the first clause prevents government saying "everybody must follow this religion" and the second clause prevents government saying "nobody can follow this religion".

I think such questions are somewhat moot since that Americans tend to pick a wide range of broad interpretations of the constitution, based on their particular intentions or preferences.

 

[Dao Hao Now]

Would any rights be taken away if the 2nd clause were omitted?

Obviously yes.
As @crossfire suggested;
It prevents the government from being allowed to ban any religion or religious practice.
For example as China has banned Fulan Gong.

It would remove the right of the free exercise of the religion of your choice.

It seems the 2nd clause is unnecessary if you take into account the 4th & 5th clauses.

Was the 4th clause here intended to be the freedom of the press? I’ll presume not.
Maybe you meant the 3rd clause….freedom of speech?

As for the 5th clause…freedom of peaceable assembly;
Again @crossfire gave you an obvious and reasonable answer.
Not all religions are practiced by assemblies.
Your retort of …..

While you're at it, let's also take into account everything else from this can of worms, such as being able to ban being isolated or being a hermit, traveling alone, sleeping alone, etc.

refutes the very claim you’re putting forward;
that the right to peaceful assembly would somehow protect the right to exercise whichever religion you see fit, by only protecting religions that rely on assembling of persons in order to practice and only while they were assembled.

How would it prevent you from punishment when you were not in the act of assembling?

If the exercise of your religion doesn’t rely on or consist of assembling with others, how would the right of assembly protect you from the government banning your religion?
If in fact you actually meant the 3rd clause (freedom of speech) instead of the 4th clause (freedom of the press), how would that protect religions that are practiced with meditation and silent reflection?


If the government were allowed to ban a religion, what would prevent them from banning symbols or trapping of a religion and using possession of those symbols or trappings as a justification for arrest and punishment?

If in fact you did intend to say the 4th clause (freedom of the press), pray tell…..
How would you envision that protecting the free exercise of religion?

 

[crossfire]

Obviously yes.
As @crossfire suggested;
It prevents the government from being allowed to ban any religion or religious practice.
For example as China has banned Fulan Gong.

It would remove the right of the free exercise of the religion of your choice.


Was the 4th clause here intended to be the freedom of the press? I’ll presume not.
Maybe you meant the 3rd clause….freedom of speech?

As for the 5th clause…freedom of peaceable assembly;
Again @crossfire gave you an obvious and reasonable answer.
Not all religions are practiced by assemblies.
Your retort of …..

refutes the very claim you’re putting forward;
that the right to peaceful assembly would somehow protect the right to exercise whichever religion you see fit, by only protecting religions that rely on assembling of persons in order to practice and only while they were assembled.

Regarding this, I asked him about the motivation behind removing the 2nd clause:

What is your behind your motivation to remove the restraint on the government afforded by the 2nd clause of the First Amendment?

As the result would be granting the government a herding mechanism according to religion. I can only speculate on the motivations behind this, and my speculations are not very palpable. I never got an answer to my question.

How would it prevent you from punishment when you were not in the act of assembling?

If the exercise of your religion doesn’t rely on or consist of assembling with others, how would the right of assembly protect you from the government banning your religion?
If in fact you actually meant the 3rd clause (freedom of speech) instead of the 4th clause (freedom of the press), how would that protect religions that are practiced with meditation and silent reflection?


If the government were allowed to ban a religion, what would prevent them from banning symbols or trapping of a religion and using possession of those symbols or trappings as a justification for arrest and punishment?

If in fact you did intend to say the 4th clause (freedom of the press), pray tell…..
How would you envision that protecting the free exercise of religion?

Perhaps you will get reasonable answers to your questions. Mine were either dodged, dismissed, or misrepresented. Good luck.

 

[anotherneil]

Obviously yes.
As @crossfire suggested;
It prevents the government from being allowed to ban any religion or religious practice.
For example as China has banned Fulan Gong.

It would remove the right of the free exercise of the religion of your choice.


Was the 4th clause here intended to be the freedom of the press? I’ll presume not.
Maybe you meant the 3rd clause….freedom of speech?

As for the 5th clause…freedom of peaceable assembly;
Again @crossfire gave you an obvious and reasonable answer.
Not all religions are practiced by assemblies.
Your retort of …..

refutes the very claim you’re putting forward;
that the right to peaceful assembly would somehow protect the right to exercise whichever religion you see fit, by only protecting religions that rely on assembling of persons in order to practice and only while they were assembled.

How would it prevent you from punishment when you were not in the act of assembling?

If the exercise of your religion doesn’t rely on or consist of assembling with others, how would the right of assembly protect you from the government banning your religion?
If in fact you actually meant the 3rd clause (freedom of speech) instead of the 4th clause (freedom of the press), how would that protect religions that are practiced with meditation and silent reflection?


If the government were allowed to ban a religion, what would prevent them from banning symbols or trapping of a religion and using possession of those symbols or trappings as a justification for arrest and punishment?

If in fact you did intend to say the 4th clause (freedom of the press), pray tell…..
How would you envision that protecting the free exercise of religion?

Yes, I meant freedom of speech.

 

[anotherneil]

Regarding this, I asked him about the motivation behind removing the 2nd clause:

As the result would be granting the government a herding mechanism according to religion. I can only speculate on the motivations behind this, and my speculations are not very palpable. I never got an answer to my question.

Perhaps you will get reasonable answers to your questions. Mine were either dodged, dismissed, or misrepresented. Good luck.

Did you read this post?

Is the 1st Amendment the same with or without the 2nd clause?

Here are the 1st Amendment clauses: 1. Congress shall make no law respecting an establishment of religion, 2. or prohibiting the free exercise thereof; 3. or abridging the freedom of speech, 4. or of the press; 5. or the right of the people peaceably to assemble, 6. and to petition the...

www.religiousforums.com

 

[crossfire]

Did you read this post?

Is the 1st Amendment the same with or without the 2nd clause?

Here are the 1st Amendment clauses: 1. Congress shall make no law respecting an establishment of religion, 2. or prohibiting the free exercise thereof; 3. or abridging the freedom of speech, 4. or of the press; 5. or the right of the people peaceably to assemble, 6. and to petition the...

www.religiousforums.com

Yes. It totally misrepresents my post and my argument.

 

[anotherneil]

Yes. It totally misrepresents my post and my argument.

Ok - how?

 

[crossfire]

Ok - how?

See this post: #4

Is the 1st Amendment the same with or without the 2nd clause?

Here are the 1st Amendment clauses: 1. Congress shall make no law respecting an establishment of religion, 2. or prohibiting the free exercise thereof; 3. or abridging the freedom of speech, 4. or of the press; 5. or the right of the people peaceably to assemble, 6. and to petition the...

www.religiousforums.com

 

[anotherneil]

See this post: #4

Is the 1st Amendment the same with or without the 2nd clause?

Here are the 1st Amendment clauses: 1. Congress shall make no law respecting an establishment of religion, 2. or prohibiting the free exercise thereof; 3. or abridging the freedom of speech, 4. or of the press; 5. or the right of the people peaceably to assemble, 6. and to petition the...

www.religiousforums.com

Not only did I already see it, I even responded to it:

Is the 1st Amendment the same with or without the 2nd clause?

Here are the 1st Amendment clauses: 1. Congress shall make no law respecting an establishment of religion, 2. or prohibiting the free exercise thereof; 3. or abridging the freedom of speech, 4. or of the press; 5. or the right of the people peaceably to assemble, 6. and to petition the...

www.religiousforums.com

 

[crossfire]

Not only did I already see it, I even responded to it:

Is the 1st Amendment the same with or without the 2nd clause?

Here are the 1st Amendment clauses: 1. Congress shall make no law respecting an establishment of religion, 2. or prohibiting the free exercise thereof; 3. or abridging the freedom of speech, 4. or of the press; 5. or the right of the people peaceably to assemble, 6. and to petition the...

www.religiousforums.com

And I demonstrated that congregation being an essential part of religion is a false premise.

 

[Brickjectivity]

2. or prohibiting the free exercise thereof;

This also prevents taxing churches or is argued to prevent that.

I'd love for someone to audit the churches to make them fiscally responsible and prevent excesses, but on the other hand I wouldn't want churches to become a source of income for the government. That might cause government to encourage church donations and political donations from churches...leading towards the eventual removal of the 1st and 2nd clauses.

Based on that reasoning I think that allowing government to tax churches would lead us eventually to a state church, and so I think removing the 2nd clause (or interpreting it to allow taxing of churches) could lead to that.

 

[crossfire]

Ok, please go on - what's the point or argument?

While you're at it, let's also take into account everything else from this can of worms, such as being able to ban being isolated or being a hermit, traveling alone, sleeping alone, etc.

The government seems to have no problem at all with regulating not only what goes on within the privacy of my home, but it goes further than that by trying to attempt to outlaw the goings on within my own freaking uterus.

 

[Firenze]

Not in so many words but...

At times, the two clauses related to religious freedom have been in
conflict. For example, in 1983 the Supreme Court heard a case involving use of
state funds to hire a chaplain to offer a prayer at the opening of state legislative
sessions. While some people challenged the use of state funds as a violation of
the establishment clause, others argued that the prayer represented an exercise
of the legislators’ free exercise rights.
https://media.okstate.edu/faculty/j...tionlessons/Background_on_First_Amendment.pdf

And the pushback from that claim was that offering only a Christian prayer to an audience that included other beliefs still violated the establishment clause. I think that’s why they had to go to multiple or rotating prayers.

 

[Dao Hao Now]

Yes, I meant freedom of speech.

That’s it?

No comment on the points I made?
No answers to the other questions I asked?

 

[anotherneil]

And I demonstrated that congregation being an essential part of religion is a false premise.

Non sequitur.