The answer to that question—presented in a thoughtful article the other day—is, Yes. I say the answer is affirmative, but the author recognizes that his conclusion runs contrary not only to liberal orthodoxy but also to the views of at least a faction of “conservatives”. Note that in the subtitle the author maintains that conservatives shouldn’t even be wondering about this:
There Is No Constitutional Right to Satanism
Conservatives have been so shaped by libertarian arguments that they wonder whether Satanism is protected by the Constitution.
The issue arises because a wide range of perversions, including Satanism, are seeking to establish a foothold not only in the public square but in the government run schools—at the same time that the effort to ban Christianity from public life is moving inexorably toward open persecution.
The author’s argument basically rests upon history, in a way that is in line with arguments in support of 2A rights. The appeal to history is advanced in support of an “originalist” reading of the Constitution, and to distinguish Originalism from what could be termed a type of fundamentalism in legal scholarship. That type of fundamentalism inevitably falls prey to liberal distortions if the text is not subjected to historical analysis. In other words, the argument comes down to this: While there is widespread disagreement about what the word “religion” means in contemporary usage, the issue for constitutional purposes is, What did the word “religion” mean as used in the Constitution’s First Amendment, at the time the document was written, for purposes of free exercise?
The author has no doubts, nor do I, that any objective historical examination will show that, for the authors of the Constitution and for many decades later, the word “religion” and the concept that it communicated did not include Satanism. What exactly it did include is another matter for historical inquiry. The author goes into those issues—not only examining what “religion” meant in English at the time the Constitution was written, but also examining the evidence of case law in the decades following ratification—what does the case law tell us about how the generations of judges who interpreted the Constitution understand the word “religion.”
While the author doesn’t argue this at great length, he does place the blame for conservative intellectual confusion on this matter on an ideologically fundamentalist interpretation of the Constitution as embodying an ideology of absolute individual freedom. From an historical standpoint that is clearly a mistaken notion. What it amounts to is a libertarian ploy to convince conservatives—by a fundamentalist reading of the Constitution that utilizes an anachronistic modern usage of words like “religion” rather than a correct historical understanding—that the Constitution is an ideologically libertarian screed, rather than an effort to preserve social order according to the ideals of the Founding period. That doesn’t mean that the Founding Fathers opposed all change or development, but fundamental change was only supposed to happen through extensive public debate in the amendment process.
I urge readers to follow the link to the article, but these (edited) excerpts will provide the outlines of the author’s thoughtful argument:
Though this particular after-school Satan club is now a moot issue, the troubling reality behind these events needs to be addressed.
American conservatives have been so shaped by libertarian arguments for absolute personal freedom that the point has come where they wonder whether Satanism is part of the tradition protected by the U.S. Constitution. Something must be done to take back this obvious ground.
The author then gets into discussion of a well known case, and shows how the court went astray. The argument amounts to, Well, the Constitution doesn’t define “religion” so lets see what the case law says. While that may sound superficially like a reasonable approach, it skips the essential step of historical analysis—essential when considering the original meaning of the text of the Constitution. Consideration of earlier case law should certainly be part of the analytical mix, but additional historical analysis—as in 2A cases—is called for.
Since the Constitution does not define religion, the court “must turn to case law for guidance.” The court begins by noting that early Supreme Court precedent “defined religion in traditional theistic terms.” Keep this in mind, because for the originalist, this should largely be the end of the analysis.
Once the traditional understanding of religion at the time the Constitution was ratified is discarded, we have no clear way to define the contours of what constitutes a religion at all. So we resort to allowing courts to make up tests and rules.
We get very little guidance from the text of the Constitution itself. The text tells us that Congress shall not prevent the free exercise of religion; the incorporation doctrine based on the Fourteenth Amendment extends this protection to the state governments. But nowhere does the text of the Constitution define religion.
Originalism proposes that a legal text “ought to be given the original public meaning that it would have had at the time that it became law.” This is not a controversial position: The text of a law means what the words meant at the time the law was enacted. The meaning of legal texts cannot change with the times, or else we risk passing laws that come to mean something drastically different than what the legislators thought they meant. It is critically important, then, to understand the meaning of words at the time they were enacted into law.
Historical analysis is the bulwark against liberal tyranny and radical subversion of our constitutional order. That order was intended to protect the stability and integrity of our social order.
Now, regarding my assertion of the imminence of direct persecution of Christianity, I should probably offer some justification, for skeptical readers. Revelations from FBI whistleblowers are important in this respect. When I first read about the memo written at FBI Richmond, which clearly targeted Catholics who attended the Traditional Roman Mass as a security threat, I was open to—but not confident in—the idea that this was an oddball act peculiar to the Richmond Division. It turns out that this targeting was part of a broader move almost certainly orchestrated through the Zhou regime’s DoJ—that’s important, to know where the targeting is really coming from. Two recent articles make this clear, as they show FBI management constructing institutional “threat tags” to justify targeting of pro-lifers, who are overwhelmingly traditionally Christian believers:
FBI Agent Blows the Whistle on Government Targeting of Pro-Lifers
FBI Whistleblowers: Threat Tags Were Used to Target Conservatives
According to Just The News, one such whistleblower told the House Judiciary Committee over the weekend that a terrorist threat tag originally created to target far-left activists who threatened conservative Supreme Court justices after the overturning of Roe v. Wade was ultimately flipped to the opposite purpose, and instead became a marker for pro-life activists that the FBI considered dangerous for simply protesting at abortion clinics.
Whistleblower Garret O’Boyle told the committee that the threat tag “THREATTOSCOTUS2022” was created so that the bureau could “look into … pregnancy centers.” However, O’Boyle was then instructed to talk to a pro-life informant “about the threats to the Supreme Court.”
“I was like, ‘why would this person know about those threats? He’s pro-life.’ Like, he’s not the one going and threatening the Supreme Court Justices,” O’Boyle explained in his testimony, before going on to admit that he was never once asked to look into actual acts of domestic terrorism that were carried out against pro-life pregnancy centers or churches, many of which were violently attacked after the Supreme Court’s decision was made final.
Similar threat tags were used to label as possible domestic terrorists several other conservative affiliations, including parents who protested far-left, race-baiting, and overtly sexual curriculum at public schools, as well as American Catholics who attend Latin Mass.
It’s clear from these developments that the Zhou regime’s legal apparatus is hellbent (!) on sidestepping SCOTUS efforts to protect our religious liberties. They are actively seeking to target vast swaths of the population as threats to “national security”—meaning, the security of the Woke order of governance. This agenda is being pushed through a wide variety of methods, including the social controls imposed by the Covid Regime, CRT in the schools, and the enabling and protection of sexual indoctrination in government schools and in workplaces. And yes, Satanism is part of that mix.
In response to NFO's reply to my comment about "religious establishments"--one of the things that the "established churches" of Europe and even the colonies did was suppress the "free exercise" of anyone who dissented from the established church. In England, John Bunyan wrote his classic "Pilgrim's Progress" while in prison for his faith. In New England, Massachusetts banished Roger Williams, and he founded Rhode Island. Later they banished Quakers, and if they dared to return they hanged them. In Virginia, where the Anglican church was established, Presbyterians were not allowed to have church buildings or worship services; they began to let that slide as the Scots-Irish began to settle in the western parts of Virginia, because they were regarded as a useful buffer against the Indian tribes, but the law stayed on the books until after the Revolution.
Today's secularists and atheists act like they are the established church in the US--groups like the ACLU and Freedom From Religion Foundation file lawsuits to try to stop any expression of Christianity in public. They mouth things like "You can do what you want in your church services, but not in the public square." (The governor of California gave away the real game during the Covid shutdowns when he imposed harsher rules on churches than on businesses.) But real Christianity is not about what you do in a church building on Sundays; it's about how you live all the time, 24/7/365. There is very little in the New Testament about what goes on in the Sunday gathering; if you put them all together you might have a couple of pages' worth. There is a LOT about how you live daily. And the "free exercise" of religion in the Constitution includes how you live all week long, not just whether you can have services on Sunday.
While we quibble over what the Constitution really means, THEY act. This won't be solved by pols or people in black robes; it will be solved at the ground level by parents either taking over school boards and kicking out the crazies, or by abandoning the state school system entirely. Knowing teachers as I do, I thoroughly recommend the latter course. Even if you change the school board, the majority of teachers will remain leftists and will continue indoctrinating your kids. As for Christians, I'm not one, but I'm still traumatised by their complete submission to Caesar (with some very, very honorable exceptions such as Dr McCullough and Pastor MacArthur). I know what Niemoller said about "first they came for the communists..", but I have also long learned that you can't fight for people who aren't willing to fight for themselves. Christians need to get serious about the times we live in and live their faith on their sleeves.