Abstract
What happened at the First Congress and subsequent public commentary on the religion clauses indicate that they were intended to protect the free exercise of religion as it was generally understood at that time and as summarized in Chap. 8. Both religion clauses were intended to free religion from government meddling, whether intended to aid or harm religion, in order to protect the integrity of religion and enable it to “sink or swim” on its own. Ironically, in freeing religion from government, the religion clauses also protected atheism. Also, because the clauses were intended to prohibit the government only from passing certain kinds of laws, they cannot be used to justify religion-based exemptions from laws that it is authorized to pass.
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Notes
- 1.
See Philip Hamburger, “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” in Supreme Court Review 1992 (Chicago: Univ. of Chicago Press, 1993), 317–18, 324–36; Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” William & Mary Law Review, 44 (2002–2003): 2181–89, 2193–2205; and Andrew Murphy, Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (University Park, PA: Pennsylvania State Univ. Press, 2001).
- 2.
Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (N.Y.: Oxford Univ. Press, 2001), 3, 14–15, 21–22; Jack Rakove, “Once More into the Breach: Reflections on Jefferson, Madison, and the Religious Problem,” in Making Good Citizens: Education and Civil Society, ed. Diane Ravitch & Joseph P. Viteritti (New Haven, CT: Yale Univ. Press, 2001), 248–49; Carl Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review, 2004 (2004): 1396; Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (N.Y .: Oxford Univ. Press, 2012), 152–55; and Vincent P. Munoz, “If Religious Liberty Does Not Mean Exemptions, What Might It Mean?” Notre Dame Law Review, 91 (2016): 1387–1408.
- 3.
The Virginia Chronicle (Fredericksburg, VA: T. Green, 1790), 39. Joel Barlow, for example, wrote, “In the United States . . . religion is . . . a personal and not a corporate concern.” Advice to the Privileged Orders (1791), in The Political Writings of Joel Barlow (N.Y.: Mott & Lyon, 1796), 35.
- 4.
Esbeck, “Dissent,” 1396. It must be acknowledged that this point about the original meaning of the free exercise of religion—that it precludes laws directly aiding as well has harming religion—was made some years ago by Thomas J. Curry, in The First Freedoms: Church and State in America to the Passage of the First Amendment (N.Y.: Oxford Univ. Press, 1986), 216–17, and Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: Univ. of Chicago Press, 1965), 17–19. Hopefully what this book does is to provide enough evidence to show that they were unquestionably correct in making that point.
- 5.
Curry goes so far as to say that the religion clauses of the First Amendment “did not represent the triumph of one particular party or specific view point over a clear or entrenched opposition, but rather a consensus of Congress and nation.” First Freedoms, 193. Moreover, two of the New England states in which a majority of the citizens may have adhered to the narrower understanding of the free exercise of religion, namely, Massachusetts and Connecticut, did not ratify the First Amendment, at least not until 1939. The Bill of Rights: A Documentary History, ed. Bernard Schwartz (N.Y.: Chelsea House, 1971): 2:1172. Does this not make their understanding of religious freedom irrelevant to a search for the original understanding of the religion clauses?
- 6.
Reflexions on the State of the Union (Philadelphia, PA: Matthew Carey, 1792), 36. Spencer W. McBride persuasively argues that New England’s Standing Order lasted as long as it did because it protected the established clergy’s social standing and cultural authority. Pulpit and Nation: Clergymen and the Politics of Revolutionary America (Charlottesville, VA: Univ. of Virginia Press, 2016), 127–42.
- 7.
This point is eloquently made in Curry, Farewell, 5, 10–13. Also see John P. Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: Univ. of Chicago Press, 1988), 56.
- 8.
Pennsylvania “Declaration of Rights ” (1776), in Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights, ed. Richard L. Perry (Chicago: American Bar Foundation, 1959), 329. Almost identical provisions were in the declarations of rights of Delaware, Vermont, Virginia, and North Carolina.
- 9.
See Vincent P. Munoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” American Political Science Review, 110 (May 2016): 373, and Philip Hamburger, “Separation and Interpretation,” Journal of Law & Politics, 18 (2002): 53–56.
- 10.
See Chris Beneke, “The ‘Catholic Spirit Prevailing in Our Country’: America’s Moderate Religious Revolution,” in The First Prejudice: Religious Tolerance and Intolerance in Early America, ed. Chris Beneke & Christopher S. Grenda (Philadelphia, PA: Univ. of Pennsylvania Press, 2011), 266; Andrew Koppelman, Defending American Religious Neutrality (Cambridge, MA: Harvard Univ. Press, 2013), 2 & throughout; and Abington School District v. Schempp, 374 U.S. 203, 214–15, 222 (1963).
- 11.
Barlow, Advice, 40. He later, at 49, added, “In the United States of America there is no [established] church; and this . . . ensures the unembarrassed exercise of religion . . . .” Tench Coxe agreed. See A View of the United States of America (Philadelphia, PA: Hall, Wrigley, & Berriman, 1794), 427.
- 12.
For persons who advocated religious freedom for all persons, see above, pp. 56, 79, 88; John Ragosta, Religious Freedom: Jefferson’s Legacy, America’s Creed (Charlottesville, VA: Univ. of Virginia Press, 2013), 89; and Denise A. Spellberg, Thomas Jefferson’s Qur’an: Islam and the Founders (N.Y.: Knopf, 2013), 5, 101.
- 13.
See Michael A. Paulsen, “Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication,” Notre Dame Law Review, 61 (1986), 212–14, 325; Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard Univ. Press, 2007), chap. II; David D. Bowlby, The Garden and the Wilderness: Church and State in America to 1789 (Lanham, MD: Lexington Books, 2012), 138; and Curry, Farewell, 21–22.
- 14.
Isaac Foster, A Defence of Religious Liberty (Worcester, MA: Isaiah Thomas, 1780), 141.
- 15.
Howe, Garden, 18.
- 16.
Id., 31, and Curry, Farewell, 3–5. J. Judd Owen contends that in early America there were two competing theoretical justifications of religious liberty: a religious or theological one, espoused by persons like Isaac Backus (the justification summarized above) and an antireligious one, espoused by Thomas Jefferson, who hoped that religious freedom would lead to the demise of religion. “The Struggle between ‘Religion and Nonreligion’: Jefferson, Backus, and the Dissonance of America’s Founding Principles,” American Political Science Review, 101 (Aug. 2007): 493–503. He thereby implies, incorrectly, that the two justifications were more or less equal in influence and popularity. As this book has shown, the overwhelmingly dominant justification of religious freedom was theological in nature. Very few persons subscribed to Jefferson’s rationale for religious freedom, if for no other reason than the fact, admitted by Owen, that he expressed it only in private correspondence. Michael McConnell makes this point exceptionally well in “Religion and Its Relation to Limited Government,” Harvard Journal of Law & Public Policy, 33 (2010): 943, 950–52.
- 17.
E.g., see Douglas Laycock, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues, 7 (1996): 313–23, and Andrew Koppelman, “Corruption of Religion and the Establishment Clause,” William & Mary Law Review (2009): 1831, 1834, 1842, 1848–49, 1896–98. For an extended analysis of this issue, see Steven D. Smith, “The Rise and Fall of Religious Freedom in Constitutional Discourse,” University of Pennsylvania Law Review,” 140 (Nov. 1991): 149–56, 167–240.
- 18.
A fact that Koppelman documents in some detail. “Corruption,” 1848–77.
- 19.
Koppelman, Defending Neutrality, 168 & throughout.
- 20.
Gordon Wood, “The Democratization of Mind in the American Revolution,” in The Moral Foundations of the American Republic, ed. Robert H. Horwitz (Charlottesville, VA: Univ. of Virginia Press, 1977), 123–26, and Richard W. Pointer, “Freedom Truth, and American Thought, 1760–1810,” in Liberty and Law: Reflections on the Constitution in American Life and Thought, ed. Ronald A. Wells & Thomas A. Askew (Grand Rapids, MI: Eerdmans Pub., 1987), 25–41.
- 21.
Laycock, “Religious Liberty,” 341. Leland wrote that religious freedom requires the government to protect equally those who believe in “one God, three Gods, no God, or twenty Gods . . . .” “The Rights of Conscience Inalienable” (1791), in Political Sermons of the Founding Era, 1730–1805, ed. Ellis Sandoz (Indianapolis, IN: Liberty Press, 1991), 1089. For other persons who said that discriminating against atheists violates the principle of religious liberty, see above, pp. 66, 81–82, 148–49, 214–15, including fn 58, 286.
- 22.
Garden, 19, 154.
- 23.
Chester J. Antieau, Rights of Our Fathers (Vienna, VA: Coiner Pub’s, 1968), 62. Making the same mistake are Robert Natelson, “The Original Meaning of the Establishment Clause,” William & Mary Bill of Rights Journal, 14 (Oct. 2005): 100; Carl H. Esbeck, “Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation,” Utah Law Review, 2011 (2011): 557, 563; Michael McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review, 103 (May 1990): 1495–96; and Noah Feldman, “The Intellectual Origins of the Establishment Clause,” New York University Law Review, 77 (May 2002): 425.
- 24.
Natelson, “Original Meaning,” 101.
- 25.
Leo Pfeffer, “Equal Protection for Unpopular Sects,” New York University Review of Law & Social Change, 9 (1979–1980): 11.
- 26.
Hamburger, “Equality,” 311.
- 27.
“To the editor of the Gazette of the united states,” The American Museum, 6 (July 1789): 44–45. For other examples, see John Leland, “The Yankee Spy” (Boston, MA: John Asplund, 1794), 19, and Hamburger, “Constitutional Right,” 937–39.
- 28.
David Little writes insightfully on this point in “Conscience, Theology, and the First Amendment,” Soundings: An Interdisciplinary Journal, 72 (Summer/Fall 1989): 373–74.
- 29.
This point is forcefully made by Thomas Curry in “Interpreting the First Amendment: Has Ideology Triumphed over History?” DePaul Law Review 53 (Fall 2003): 1–17. Also see Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review, 60 (April 1992): 936–38, including fn 90. McConnell rejects this conclusion. “Origins,” 1446.
- 30.
Esbeck, “Dissent,” 1393, fn. 20. For an extended discussion and documentation of this point, see Hamburger, Separation, 99–107.
- 31.
Agreeing is Munoz, “Madison’s Principle,” 31 (“A Madisonian interpretation of the Establishment Clause would prevent the state from supporting religion as an end in itself, but it also would prevent the state from excluding religious individuals and organizations from generally available benefits supporting a secular purpose.”)
- 32.
See Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (N.Y.: Cambridge Univ. Press, 2015), 237; Hamburger, Separation, 102–03, including fn’s; and Antieau, Rights, 55–56.
- 33.
See, e.g., Samuel Shuttlesworth, A Discourse Delivered in the Presence of His Excellency (Windsor, VT: Hutchins, 1792), 15.
- 34.
See above, pp. 164–65, 168.
- 35.
Reid, Concept, 117, and Munoz, “If Religious Liberty,” 1391–92, 1415–16.
- 36.
Also see Munoz, “Two Concepts,” 374.
- 37.
Hamburger, “Constitutional Right,” 918.
- 38.
Indeed, Michael McConnell contends that this is the only possible explanation for the caveats that were in some of the state guarantees of religious freedom. See his “Free Exercise as the Framers Understood It,” in The Bill of Rights: Original Meaning and Current Understanding, ed. Eugene W. Hickok, Jr. (Charlottesville, VA: Univ. Press of Virginia, 1991), 59.
- 39.
See Hamburger, “Constitutional Right,” 939–47, including especially the evidence cited in footnotes. Even Kathleen A. Brady, a proponent of a right to religion-based exemptions, concedes this point. Distinctiveness, 118, 161, 165, 172, 214.
- 40.
See above, pp. 63–64, 67, 83–84 (including fn 121), 101, 108–09, 116, 125, 150, 162, 167–69, 179 (including fn 69), 186 (including fn 93). For the arguments and evidence that Madison, Washington , and Jefferson rejected the idea that persons have a right to religion-based exemptions based on religious liberty, see Vincent P. Munoz, God and the Founders: Madison, Washington, and Jefferson (N.Y.: Cambridge Univ. Press, 2009), 20, 26–27, 64–65, 179–81, 191–92. For examples of dissenters who also rejected the idea, see Hamburger, “Constitutional Right,” 942–43, including fn 111.
- 41.
On the basis of such reasoning, Munoz, God, at 37–39, 175–81, argues that Madison and Jefferson, but not Washington , were opposed to religion-based exemptions granted by statutes.
- 42.
Howe, Garden, 160. For examples, see Douglas Laycock, “Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause,” Notre Dame Law Review, 81 (2006): 1803–08; Esbeck, “Uses,” 593–96; and McConnell, “Origins,” 1468–69, 1471–73.
- 43.
Thus, Brady concedes that “[n]onbelievers can also experience great psychic harm and suffering when forced to violate their consciences.” Distinctiveness, 102. For the argument that “nontheists subject to moral compulsion based on their own belief system should be entitled to exemption on the same basis as theists,” see Laycock, “Religious Liberty,” 347–48.
- 44.
See above, p. 136.
- 45.
The Maryland Constitution of 1776, however, had a provision allowing all prospective voters to affirm their loyalty (see above, p. 98), but it is unclear why. Also, in 1790, Rhode Island submitted a list of amendments to the Constitution, including one that read, “VI. That no person shall be compelled to do military duty otherwise than by voluntary enlistment . . .,” The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, ed. Jonathan Elliot (Philadelphia, PA: J. B. Lippincott, 1891, 2nd ed. rev.), 1:336 (emphasis added), but again it is unclear why.
- 46.
Laycock, “Religious Liberty,” 338, and Howe, Garden, 160.
- 47.
Others scholars who agree include Michael Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, DC: American Enterprise Institute for Public Policy Research, 1978), “Preface,” and 19–40; Walter Berns, The First Amendment and the Future of American Democracy (N.Y.: Basic Books, 1976), 36; and Hamburger, “Constitutional Right,” 915–48.
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West, E.M. (2019). Final Conclusion. In: The Free Exercise of Religion in America. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-06052-7_11
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