As we have noted several times before, American Family Radio’s Bryan Fischer holds an utterly incoherent view of the First Amendment that allows him to continually insist that it only applies to Congress … except for all the times when he insists that it applies to all sorts of other government entities.
Amazingly, Fischer’s theory regarding the scope and meaning of the First Amendment grew even more incoherent when he said on his radio program yesterday that a failure by the Supreme Court to strike down a provision in a state constitution prohibiting the use of public funds to aid religious institutions would be a violation of the First Amendment.
Fischer was discussing the upcoming Trinity Lutheran Church v. Pauley case, which The Atlantic summarized thusly:
At first glance, Trinity Lutheran is about resurfacing children’s playgrounds. Missouri’s Scrap Tire Program offers state funds to nonprofit groups that replace playground surfaces with recycled rubber. The church applied to the program in 2012 to replace the gravel surface of its playground, but the state rejected its application, citing a clause in Missouri’s state constitution that bars the use of state funds “directly or indirectly, in aid of any church, sect, or denomination of religion.”
Trinity Lutheran Church argued that that provision violates the U.S. Constitution’s First Amendment by discriminating against religious organizations. Missouri countered that because it does not favor or disfavor any church over another, it meets the Establishment Clause’s standards.
In the past, Fischer has repeatedly stated that “the First Amendment applies to Congress and Congress alone … Since Congress is the only entity restrained by the First Amendment, Congress is the only entity that can violate it.” He has also argued that “states are allowed the freedom under the Founders’ Constitution to regulate religious expression anyway they choose.”
Despite the fact that just last year, Fischer insisted that the First Amendment only applies to Congress and that states “are free to regulate religious expression in any way they would like without any interference from the federal government,” he is now bizarrely demanding that the federal government, via the Supreme Court, strike down this clause in the Missouri constitution on the grounds that it violates the First Amendment.
“The First Amendment is addressed to Congress,” Fischer said, “and Congress has all legislative power, so this is essentially an amendment that applies to all of the federal government. The whole federal government is covered by the First Amendment. What is Congress not allowed to do, according to the First Amendment? It is flatly prohibited from doing what? From prohibiting the free exercise of religion. So what is the Supreme Court forbidden to do in the case of Trinity Lutheran Church vs Pauley? It is absolutely, totally, as an instrument of the federal government, it is forbidden by the Constitution to limit, to prohibit, to restrict the free exercise of religion in any way. What are they doing if they say to the school, ‘You’re not eligible for any public help because you engage in religious expression’? You cannot find a more direct and more egregious violation of the First Amendment than for the Supreme Court, an agency of the federal government, to prohibit their expression of religious liberty.”
Not only is Fischer insisting that the First Amendment applies to entities beyond Congress, despite repeatedly asserting exactly the opposite in the past, he is now also declaring that the federal government must nullify a provision in a state constitution pertaining to religious expression despite having previously proclaimed that states “are free to regulate religious expression in any way they would like without any interference from the federal government.”