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Jay Bozievich has an excellent column about the 1st Amendment

Guest Viewpoint: Misapplying the First Amendment - The Register-Guard, Eugene, Oregon, USA - by Jay Bozievich

The following is the complete column:

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www.registerguard.com | © The Register-Guard, Eugene, Oregon

September 16, 2003

Guest Viewpoint: Misapplying the First Amendment
By Jay Bozievich

No part of American law is more misunderstood, misquoted or misapplied than our Constitution's First Amendment. Whether it is Alabama Chief Justice Roy Moore and his graven image in an Alabama courthouse or "under God" in our Pledge of Allegiance, the First Amendment is invoked incorrectly to argue both sides of the issue.

Now, it seems that even a mother is willing to use a child as a pawn in a battle over civil rights with an incomplete understanding of civil rights or our Constitution. Many of those who support Lee Inkmann in her desire to enroll her daughter at O'Hara Catholic School would demand that religious symbols like the Ten Commandments monument in a courthouse be removed because there should be "separation of church and state." They would be asking for the right thing to be done under the wrong premise.

Here is the actual First Amendment:

"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 to peaceably assemble, and to petition the Government for a redress of grievances."

Funny, but the words "separation of church and state" never appear. What does appear is a clear direction that there shall be no official religion established and that the government shall not interfere with the practice of religion. Now, how does that apply to Alabama Judge Roy Moore and Inkmann?

Moore, by erecting a monument to one specific religion in a government building, violates the establishment clause of the First Amendment. (Please don't tell me that the Ten Commandments represent many religions; the monument used a translation that's specific to Protestants.) Had he chosen to honor many religions, as the U.S. Supreme Court does in its chambers, and not limit his monument to one, then he would have been within the boundaries set forth in the establishment clause.

Inkmann's mistake is in attempting to use government force to have a religious organization to do something against its teachings. The flip side to the establishment clause is the free exercise clause. In the great wisdom of our predominantly Christian founding fathers, in order to provide freedom for all people, they knew government should not establish a state religion and it should not interfere with religion. They provided that balancing clause of free exercise. Otherwise, how could there ever be such a thing as a conscientious objector?

Ah, but what about Inkmann's civil rights? She still has them! Why should her rights trump those of the rest of the parish? No one has said she can't be a lesbian; they have only denied admittance of her child to a private institution based on religious grounds.

But aren't all schools in a sense public? No. The Civil Rights Act of 1964 and 1991, as well as the Title 42, Chapter 21, of the U.S. Code, all provide definitions of both public accommodations and public schools. O'Hara Catholic School is neither a public accommodation nor a public school.

It will always amaze me how little people understand about both the First Amendment and civil rights laws. Private institutions are allowed to discriminate. It is legal. You just do not have to support them. Whether it is a golf club in Georgia not accepting women or the Boy Scouts not accepting atheists, it is their right to assemble in any way they please, so long as it does not harm or defraud another.

Even though I am not religious, I will always fight for anyone's freedom to choose their religion (or not) and to worship as they please (or not). I will strongly resist any attempts to use the force of government to compel any religious institution to do something against its beliefs. What would be next, forcing the Camp Harlow to accept an avowed Satan worshipper?

Like the rest of the First Amendment concerning speech and the press, protection of popular speech, media and religious practices is really not necessary. It is the unpopular religious practices (based on one's point of view) that need protection. While this may not be popular with Inkmann, O'Hara's decision is protected in our Constitution, because O'Hara is a private religious school.

The real question should be, why is a government funded Human Rights Commission even involved beyond taking the initial complaint? Doesn't it understand "free exercise" and "public accommodation"?

Jay Bozievich of Eugene is the state contact for the Republican Liberty Caucus.