By Scott Weiser
What is “religion” and what aspects of religion does the First Amendment protect? This is a question that our leaders and our society are reluctant to ask. We see frequent recourse to the text of the Constitution itself where it says “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof” but there is precious little debate about what the word religion actually means in that context.
The Founders were determined to broadly protect an individual’s right to believe whatever he wishes, but at the same time they were cognizant of the risks of too broad an acceptance of how people might choose to put their beliefs into action.
James Madison remonstrated in 1785 against Virginia’s attempt to pass a law providing for government support of “Teachers of the Christian Religion,” writing “we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’”
In Cantwell v. Connecticut, the Supreme Court described this principle with greater precision, writing “Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.”
It is clear that our laws distinguish between religious belief and religious practice, the former being a matter of conscience that is absolute, unalienable and not subject to government control, and the latter most certainly being subject to reasonable time, place and manner regulations in the public interest. This is why polygamy is unlawful as is the practice of human sacrifice and religiously motivated rape of children that landed pedophile Warren Jeffs in prison for life notwithstanding his religious belief he was entitled to “marry” twelve year-old girls.
With this important distinction in mind we now may address the conundrum of the duality of Islam that has for too long rendered us impotent to control the fundamentally evil practices that threaten the very foundations of our nation. What we can now do is to distinguish religious Islam from political Islam and address each separately within the context of the Constitution and the First Amendment.
Religious Islam is what Muslims believe with respect to their deity, their prophet and their desire to live a certain way. Political Islam is how they propose to impose their religious beliefs upon others.
The former is entirely up to Muslims to determine. What they believe and how they choose to worship among themselves is well protected by the First Amendment, as it should be. The latter is another matter entirely.
Nothing in the First Amendment prohibits Congress or any lower level of government through the 14th Amendment from regulating acts performed by Muslims in pursuit of their religious beliefs where such acts impinge on the rights of others to be free of force or violence. And this extends to engaging in seditious conspiracies to overthrow the government and replace it with political Islam.
This is an essential distinction that is almost universally ignored in the debate about how Islam might integrate into our culture peacefully. Say “Islam” or “Muslim” and people tend to automatically conflate the religious beliefs and the political practices into one monolithic thing that either can be prohibited or cannot be prohibited depending on which side of the issue one stands.
But this is simply not the case. Defining and setting political Islam apart from religious Islam is not only appropriate, lawful and necessary, it is the only way to protect that which our American ideals value with respect to freedom of religious belief while simultaneously protecting our American values with respect to offensive and dangerous political ideology and practice.
Just as it is lawful to prohibit the entry of Communist aliens to the United States because Communism is inherently dangerous to American society and principles, it is most certainly lawful to prohibit entry of political Islamists whose political values and practices are antithetical to the culture and values of the United States. That some Muslims argue that religious Islam and political Islam are one and the same and are inseparable, as many Muslims of the radical variety do, is not relevant to whether or not the United States has the authority to ban adherents to political Islam without infringing on their right to whatever religious beliefs they choose to hold.
All the United States needs to do is make it clear that admission to the United States by foreigners who advocate or practice political Islam is prohibited and say nothing about the religious beliefs of Muslims.
To do so the government need only carefully define what “political Islam” means in law by specific reference to political and social behaviors and practices that would be detrimental to the United States and its system of laws and rights while also explicitly stating that Islamic religious beliefs are in no way to be used as criteria for denying entry. After that definition it’s easy: “No person who practices or advocates the practice of Political Islam shall be eligible for admission into the United States.”
This puts the President and the Congress in the same position it holds with respect to any political beliefs on the part of potential immigrants that stand contrary to our own, like communists, which is that such persons may be refused entry under Congress’ plenary powers over immigration because they are dangers to our society.
Originally published in the Daily Caller