As First Amendment attorneys along with doing criminal defense work, there are two situations that constantly cause us difficulty in analyzing on which side of the issue we stand. The first, is when the First Amendment and the freedom of press conflict with a defendant’s due process rights as guaranteed by both the Fifth and Fourteenth Amendments to the United States Constitution. An example of this type of dilemma is when the media is clamoring to have access to criminal proceedings and want to make sure that everything is done in the open, and the defendant is claiming that media exposure and coverage will deny his ability to get a fair trial.
The other situation occurs when the freedom of religion prong of the First Amendment conflicts with the freedom of speech and expression part of the First Amendment. This situation always seems to raise its head during the holiday season. One group wants to celebrate their religion through a public display, and believe they should have the right to do so, not just through freedom of religion but also freedom of expression. The opposing groups or entities believe that this show of expression violates their rights to freedom of religion or freedom from religion.
Many times our decision as to where we fall on any specific situation or argument, is determined by the exact facts of the situation. For example, we were totally against the Alabama Supreme Court Chief Justice putting the Ten Commandments on display in the Alabama Supreme Court. In our view it was fostering one type or denomination of religion (i.e. Judeo Christian belief) to the exclusion of others. Further, the Chief Justice of the Alabama Supreme Court does not own that building but rather it is owned and belongs to the people of the State of Alabama. Also, it is a place of justice, where anyone even those who are not residents of the State of Alabama should be able to come and feel equal to all others under the law.
By promoting the Ten Commandments to the exclusion of all other religions and to the exclusion of those who do not believe in religion, in a public place; and one that more than any should be free from religious overtones, we had no problem in believing that the Ten Commandments needed to be removed. With that position, we are well-aware that some would say that we were letting down the First Amendment and the Chief Justice of the Alabama Supreme Court’s right to his freedom of religion.
It appears that this dilemma is not one solely an American problem. Just the other day, France, through President Jacque Chirac instituted a policy that large religious symbols would no longer be allowed in public buildings especially in public schools. The religious symbols that he spoke of were the Muslim head scarf, the Jewish skull cap, and large crosses for the Christian faith. Supposedly, the rational for these bans were among others, that numerous Muslim girls were being forced to wear head scarfs because of either intimidation or by their families being paid off by various Muslims groups for political purposes. In addition, the rational was also given that it would stop certain hate crimes by making students more anonymous as to what religion they support, belong to, or follow.
If this was a law that was passed here in the United States, our position would be that of being against the law. As in the Supreme Court of Alabama case we are still talking about public buildings. Yet, the act of religious observance or showing religious identity would not have been done by the government as when a Supreme Court Justice of a State does it, but rather it would be being done by individuals. Also, by making it illegal for ordinary citizens to show which religion they follow and to follow those religious beliefs, it would be a direct affront to not only the freedom of religion part of the First Amendment but also to the freedom of expression part.
Not being very religious, maybe we just don’t understand. Every religion seems to preach peace. All the religions express the belief in a Supreme Being. All the religions seem to have magic words contained within their spiritual text, that speak of the good of man and ways to make life better on earth. Yet, as it was two thousand years ago, at the time of the birth of Christ and the years following; as it was a thousand years ago during the Crusades; as it was five hundred years ago during the Inquisition; as it is today with the conflict between the Jews and the Muslims and the Muslims and the Christians throughout the world, religion seems to divide us. For whatever reason it never seems to unite us.
Even within a religion there always seems to be conflict. Gay marriages, gay clergy and gay people seem to be tearing apart certain denominations of the Christian religion. The Muslim religion seems to be in turmoil by those who read the Koran as a document of peace and those who read it as justification for atrocities. The Jewish religion and more specifically in Israel, there are those who believe the Bible demands and justifies control of the West Bank while others find no such demands or justifications within the Bible.
We do not have any solution for these problems within religion and between the religions. At times we have no answer as to which part or prong of the First Amendment should supersede the other. The one thing that we can state, is that these problems don’t seem to be lessening, and the next conflict between Freedom of Religion and Freedom of Expression is just around the corner.