AboutMichael Troy Expertise I will answer general questions regarding freedom of speech, petition, or religion. I specialize in cases involving public employment or education, as well as issues related to campaign finance. But I can`t give specific legal advice involving specific cases you might have.
Experience As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious conent. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.
I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process.
Organizations Former Attorney for Center for Individual Rights.
Publications Washington Post
Washington Times
Education/Credentials J.D. from Univ. of Michigan Law School
Question You answered a question a while back about these clauses coming into conflict, I am working on the same project and need some assistance. I would like to know some specific examples of how the free exercise and establishment clauses come into conflict as well as how and why they conflict. I also would like to know what personal experience led the founding fathers (like Thomas Jefferson) to safeguard these rights in the first amendment. If you could help shed some light on this, it would be a great help.
-Thanks
Stelera
Answer He Selera,
Sorry for taking so long to get back to you. I had a hard time thinking of cases where these two come into conflict. The Courts have so narrowly defined free exercise, that it rarely comes up anymore. It is much more common for free speech issues to come into conflict with Establishment clause.
One area where it may come up is with public employees, especially teachers. There have been cases where public school teachers wanted to wear a cross or some other religious symbol, or read the bible quietly to themselves during a silent reading period, and those issues have been challenged under establishment clause.
Of course, the founding fathers never really considered examples like that one. First, they never envisioned such a broad public school system like the one we have today. In fact, the founding fathers probably would be shocked to learn that the federal government is doing about 99% of the things it does. Secondly, and more importantly, the First Amendment was never meant to apply to State action. It only applied to the Federal Government ("*Congress* shall make no law...").
At the time the First Amendment came into play, many States had official State-sponsored religions, and continued to do so well into the 19th century. These eventually went away, not because of the First Amendment but because the States decided they were bad policy.
The point of the First Amendment was to limit conflicts between the States by having the federal government try to establish an official religion that would be against the religious principles of some people. They figured this could remain a State issue. It was not until the 20th Century that the Supreme Court, through rather quesitonable reasoning, applied the First Amendment principles to States by using the 14th Amendment (passed after the Civil War).
Of course some founders, including Jeffeson, thought religious freedom was an important right at the State level as well. Jefferson was very proud of authoring the Virginia Statute of Religious Freedom. The idea was that the State would stay out of telling people what they should believe.
The reason for this concern was the religious wars of Europe. For the previous 200 years, Europe had been at war, mostly between Protestants and Catholics, over religious domination. Many Americans had come here fleeing such wars and hoping to practice their religion the way they wanted without interference.
If there could be a State religion, like there was in all European countries, people of one sect would be disadvantaged if another sect became the official religion. Therefore, all sects had incentives to fight strongly for their own to become the official State religion. This could easily lead to sectarian wars like they had seen in Europe. The founders believed that by taking this issue out of the power of the government, they could avoid damaging political battles, and possible civil wars between the numerous and diverse religious sects already in America.
