Constitution protects speech and religion

To the tune of “If You´re Happy And You Know It,” this is what they sang:

“There will never be a n..... at SAE There will never be a n….. at SAE You can hang him from a tree, but he´ll never sign with me. There will never be a n….. at SAE.” This, of course, is flat-out racist, thoroughly distasteful — and just the level of hateful speech that is protected by the First Amendment, which states:

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

It means that if you want to express racist ideas — sing racist songs — that´s your right. The disciplinary actions by the state-supported, taxpayer-funded University of Oklahoma — that is, the government — trampled that fundamental freedom of speech when it decided that this form of expression was so grave that it must be punished.

What was the real damage? The fraternity´s actions weren´t directed at an individual. I´d be surprised if students on the Oklahoma campus were unaware of SAE´s boorish behavior.

The appropriate punishment for SAE is best meted out by private entities or individuals, not by government. SAE´s national brand is hurt by the video, and the national office has taken action. Other fraternities and sororities at the universities are outraged. They can ostracize the brothers. Parents can act.

But absent real harm, government must pass. Not that there isn´t pressure to act. Free speech — except for their own — isn´t a concept that goes down easily with Americans. The 2011 annual survey by the First Amendment Center found that 30 percent of respondents disagree with the statement that performers have the right to sing lyrics that others may find offensive. Past “State of the First Amendment” surveys put the number as high as 47 percent.

Of course, the First Amendment also deals with religion, and, as with speech, the challenge is where to draw the line.

The free exercise clause is driving the proposed Michigan Religious Freedom Restoration Act, which died in the Legislature last session but is coming back again. The measure is designed to provide cover for groups or individuals who assert that government mandates conflict with their religious beliefs.

The essence of the law is captured in these two provisions:

• This act shall be construed in favor of broad protection of religious exercise to the maximum extent permitted by the terms of this act, the state Constitution of 1963, and the United States Constitution.

• Nothing in this act shall be construed to authorize any burden on any religious belief.

For example, Catholic foster-care and adoption services have refused to place children with gay or unmarried married couples, citing conflicts with the religion´s moral teachings. Governments have responded by revoking licenses and suspending contracts. The church has also tangled with governments that forbid harboring of “illegal immigrants,” acts that the church says reflects a mission of pastoral care and Christian charity.

Individuals who abhor anything same-sex say basic government accommodation requirements like providing services or housing conflict with their firmly held religious beliefs.

This law would protect both. The law proposed for Michigan is open ended in defining religious beliefs by indicating only that it must be “sincerely held.” This is the same sort of open-ended standard that frames Stand Your Ground Laws, that “reasonable belief ” is sufficient justification to use deadly force.

The Koran does not promise suicide bombers 72 virgins, but they believe that their martyrdom merits this reward. A firmly held religious belief? Indeed it is. Religious beliefs require faith in virgin births, afterlife on extra terrestrial planets, reincarnation, eternity in Hell and the list goes on.

But while fine for individuals, are they a sound a basis for law?

Consider the SAE fraternity. Perhaps its mistake was chanting its racist song rather than singing it as hymn and claiming that separation of the races is a biblical concept and for its members a firmly held belief. This was the artifice used by the Klu Klux Klan to rationalize its bigotry.

A passage in Deuteronomy has long been used to justify racism. In Chapter 7, after identifying outlier ethnic groups living in the Promise Land, God says he will help the Jews defeat them and instructs them as follows:

“ … you must destroy them totally. Make no treaty with them, and show them no mercy. Do not intermarry with them. Do not give your daughters to their sons or take their daughters for your sons, for they will turn your children away from following me to serve other gods, and the Lord’s anger will burn against you and will quickly destroy you. This is what you are to do to them: Break down their altars, smash their sacred stones, cut down their Asherah poles and burn their idols in the fire.”

It´s hardly an inclusive message, and for those who want to believe in the literal meaning of the Bible, it certainly provides a religious foundation for segregation.

Whether religion or speech, the First Amendment is a hallmark of American freedoms. But is isn´t easy and probably shouldn´t be — though, as we are seeing, it can be distorted, and certainly politicized, if we aren´t careful in how we embrace it.