Judge’s Mandatory Church Attendance Does Not Violate the U.S. Constitution

by Adam Freedman

Can a judge sentence you to church?  An Oklahoma judge’s decision to require a youthful offender to attend church has provoked near-universal criticism as an unconstitutional breach of religious freedom.  But the conventional wisdom is wrong: the judge’s sentence does not violate the Constitution.

Teenager Sentenced to 10 Years of Church Attendance

Shortly before Thanksgiving, Judge Mike Norman presided over the case of 17-year-old Tyler Alred, who had pleaded guilty to manslaughter charges arising from an automobile accident last year.  Although the judge could have sent Alred to prison for 10 years, he decided to grant him probation  — but only on the condition that Alred attend the church of his choice regularly for 10 years.

The New York Times immediately reported that “constitutional experts condemned [the sentence] as a flagrant violation of the separation of church and state.”  No doubt, many experts do believe that mandatory pew-time violates the Constitution; however, it is extremely unlikely that the Founding Fathers would have agreed.

Contrary to popular belief, the First Amendment contains no “separation of church and state” clause. Rather, it includes the Establishment Clause, which says that “Congress shall make no law respecting an establishment of religion.” The clause was originally understood to preserve state autonomy with respect to religious “establishments,” that is, state-supported religion.  When the Constitution was ratified, the states had starkly different policies toward religion: at least six states provided aid to churches, while other states had strictly secular governments.

The Establishment Clause was meant to assure the states that the federal government would not interfere one way or another with such policies.  That’s why the clause is addressed to Congress.  In 1833, Supreme Court justice Joseph Story observed that the Establishment Clause was not meant to discredit state establishments, but to “exclude from the National Government all power to act on the subject.”  Those who framed and ratified the First Amendment would not have imagined that its provisions could be used to overturn a state law, or the ruling of a state court.

It was only in 1947 that the Supreme Court announced that the Establishment Clause applies to state governments as well as the federal government – a nonsensical proposition, but one that has now become embedded in the law.  It is that unjustified expansion of the First Amendment that has empowered legions of anti-religious zealots to roam the countryside at this time of year, ready to file an injunction against any town clerk foolish enough to allow a Nativity scene or menorah to sully public property.

But even if the Establishment Clause applies to the states – as the Supreme Court now decrees – it does not follow that Judge Norman violated the Constitution.  The clause restrains only legislative action (“Congress shall make no law”) and, therefore, it could only apply to the actions of state legislatures.  But in this case, the Oklahoma legislature has not mandated church attendance.  Rather, a single judge has exercised his discretion to impose church attendance as a condition of a single offender’s parole.

Although it is possible that mandatory church attendance violates some provision of Oklahoma law, it does not violate the Establishment Clause as that provision was originally understood.

 

Adam Freedman covers legal affairs for Ricochet.  His latest book is The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books).  

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