National Constitution Center

  One of the most troubling developments in modern First Amendment doctrine is the judicial focus on the free speech right to the exclusion of other rights and the values and purposes that underlie them. This neglect has significant consequences for two aspects of the right of assembly: (1) the right to protest; and (2) the right to associate. Protest Most protests are governed under what is known as the  public forum doctrine , which allows government to regulate expressive activity in public spaces through time, place, and manner restrictions. Today’s public forum doctrine is linked entirely to the free speech right—the right of assembly is seldom even mentioned in judicial analysis of protest restrictions. And current speech-based public forum analysis upholds restrictions on political protesters, anti-abortion demonstrators, labor picketers, churches, and religious groups.  The focus on speech to the exclusion of assembly is odd, since a protest is often more obviousl...

  Common Interpretation The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. The Clause’s reference to a singular “right” has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word “assemble” is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights. For example, debates in the House of Representatives during the adoption of the Bill of Rights linked “assembly” to the arrest and trial of William Penn for participating in collective religious worship that had nothing to do with petitioning the government. While neither “assembly” nor “petition” is synonymous with “speech,” the modern Supreme Court treats both as subsumed within an expansive “speech” right, often called “freedom of expression.” Many scholars believe that focusing singularl...

  The Establishment Clause of the First Amendment – “Congress shall pass no law respecting an establishment of religion” – is one of the most misunderstood in the Constitution. Unlike most of the Constitution, it refers to a legal arrangement, the “establishment of religion,” which has not existed in the United States in almost two centuries. We understand what “freedom of speech” is, we know what “private property" is, and we know what “searches and seizures” are, but most of us have no familiarity with what an “establishment of religion” would be. The “Church by Law Established” in Britain was a church under control of the government. The monarch was (and is) the supreme head of the established church and chooses its leadership; Parliament enacted its Articles of Faith; the state composed or directed the content of its prayers and liturgy; clergy had to take an oath of allegiance to the king or queen; and not surprisingly, the established church was used to inculcate the idea th...

  An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights (of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right) has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams. Franklin saw a pattern: If we look back into history for the character of the present s...

Common Interpretation America’s early settlers came from a variety of religious backgrounds: Puritans predominated in New England; Anglicans predominated in the South; Quakers and Lutherans flocked especially to Pennsylvania; Roman Catholics settled mostly in Maryland; Presbyterians were most numerous in the middle colonies; and there were Jewish congregations in five cities. During colonial times, the Church of England was established by law in all of the southern colonies, while localized Puritan (or “Congregationalist”) establishments held sway in most New England states. In those colonies, clergy were appointed and disciplined by colonial authorities and colonists were required to pay religious taxes and (often) to attend church services. Dissenters were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York had no established church. After Independence, there wa...

  One of this nation’s deepest commitments is to the full, equal, and free exercise of religion – a right that protects not only believers, but unbelievers as well. The government cannot use its authority to forbid Americans to conduct their lives in accordance with their religious beliefs or to require them to engage in actions contrary to religious conscience – even when the vast majority of their countrymen regard those beliefs as backward, mistaken, or even immoral. Unfortunately, in the last few years – and especially since the Supreme Court’s decision requiring states to recognize same-sex marriage – this consensus in favor of tolerance has been slipping. All too often, we hear demands that religious people and religious institutions such as colleges or adoption agencies must join the state in recognizing same-sex marriages (or performing abortions or supplying contraceptives, or whatever the issues happen to be), or lose their right to operate. For the most part, the courts ...