This day was inevitable. The judicially activist mangling of the First Amendment has finally and inexorably brought its chickens home to roost.
The Satanic Temple is demanding that Oklahoma erect an idol of Satan right next to a brand new Ten Commandments monument on the grounds of the state capitol. The sculpture will be 7 feet tall and will represent the demon god Baphomet, who is in the form of a "bearded, goat-headed, winged hominid with horns."
Satan will be seated on a throne, and have a lap on which children may sit "for inspiration and contemplation."
The Satanists' argument is quite simple: the First Amendment guarantees the "free exercise" of "religion" to everybody, and thus the Constitution prohibits discrimination of any kind against the Prince of Darkness.
This means a discussion of the meaning of the word religion in the First Amendment is unavoidable.
Now if by religion the Founders meant "any system of belief in a supernatural power," it's hard to see how the satanists can be denied.
But if by religion the Founders, as historian Joseph Story has written, meant "Christianity" and its various denominations, then the answer to this problem is quite simple.
Story was the longest serving associate justice in Supreme Court history, and was appointed to the bench by James Madison, the father of the Constitution. In his monumental history of the Constitution, Story said quite plainly that Christianity was the only topic the Founders were dealing with in crafting the First Amendment. It's not that they were prohibiting other forms of religious expression, it's that they weren't dealing with them at all.
"The real object of the First Amendment," wrote Story, "was not to countenance, much less to advance Mohammedanism or Judaism, or infidelity [i.e., atheism], by prostrating Christianity, but to exclude all rivalry among Christian sects," by prohibiting Congress from picking one Christian denomination and making it the official church of the United States.
So according to this eminent historian, the First Amendment neither protects nor prohibits alternative religions to Christianity; it is simply does not deal with them at all.
Well, if the First Amendment is silent on the subject of all the other belief systems in the world, who does have the legal authority to weigh in on such matters? According to the Founders and the Constitution they bequeathed to us, that responsibility rested with the states.
As Jefferson wrote, "Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. IT MUST THEN REST WITH THE STATES..." (Emphasis mine)
Story confirms Jefferson: "Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions."
The Founders could not have been clearer. The very first word of the First Amendment is Congress. Congress is the only entity that is restrained by the First Amendment. States are free, under the Constitution as given, to regulate religious expression as they see fit. What states do with regard to religious expression is literally to be none of the central government's business, whether it's Congress or the judiciary.
In other words, if we operated under the Constitution as given to us by the Founders and not the unrecognizable one shredded by recklessly innovative jurists, who magically invented "the incorporation doctrine" out of the ether, the solution would be quite simple: Oklahoma can do anything it wants. If Oklahoma doesn't want an idol to Satan on its capitol grounds, it doesn't have to have one.
Bryan Fischer is director of issues analysis for the American Family Association. He hosts "Focal Point with Bryan Fischer" every weekday on AFR Talk from 1:00 - 3:00 p.m. (Central).
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