|On the The Origins and Demise of the Free Exercise Clause of the First Amendment of the U.S. Constitution|
Outline of this essay...
The Smith decision and the removal of Free Exercise
With the landing of the Pilgrims in 1620, America became a sanctuary and refuge for the politically oppressed and the religiously persecuted of the Old World. This heritage of liberty matured with the ratification of the Bill of Rights on December 15, 1791. The first of the ten amendments added to the American Constitution at that time stand out as the ultimate fruition of governmental protection for personal political and religious liberty in the history of the world. Guaranteed in that laconic and mighty Promise of liberty are the freedoms of religion, press, speech, assembly, and petition.
The founding Fathers, such as James Madison and Thomas Jefferson, were heavily influenced by England's John Locke. Following his thought, they believed in what today is referred to as "natural rights philosophy." They believed that the rights referred to in the First Amendment were a generous grant from mankind's Creator, and thus they were not directly the bequest of the United States. As lofty as were America's ideals of freedom, it was from still a higher source that liberty flowed. All America, or any country, could do to advance liberty was to assist the Creator in the stewardship of rights which were, by nature, "inalienable". Thomas Jefferson echoed the philosophic position of an enlightened generation when he penned:
It was the purpose of human government to protect the natural rights of man, and in America the protection was lavish and thorough. The very heart of the foundational law of the land, carrying the full authority of the United States of America, gave itself this imperative: You shall not step on, abuse, or prohibit your citizens from freely exercising themselves religiously or civilly.
Every free American could feel secure that no matter how unpopular his political or religious beliefs, he was carrying a protection for them equal to all the gunpowder, all the courts, all the judges, and all the legislatures in the United States of America. It would be hard to conceive of devising a mechanism which could more fully provide individual liberty for citizens in a nation on this present earth. Indeed, all nations in the world with a single constitution, save six, have used the U.S. Constitution as their precedent.
Just as a person who has a positive self-image and is emotionally healthy can psychologically handle criticism of all kinds, so a nation which is healthy can tolerate a great diversity of negative input from its citizens. It is paranoid fascistic states that cannot tolerate dissent and openness and who use puerile bullying to accomplish their internal social goals. America's buoyancy in being able to give protection to its dissenters has been a continual witness to the health of our republic, and to the breadth of vision of our Founding Fathers. Their original fatherly protections have benefited all Americans in today's society, even with our present pluralism, which was unknown in their day.
But if our giving protection to even our dissenters is a barometer of American healthiness, we are being warned of a coming crisis. Since the Supreme Court is the ultimate arbiter and interpreter of the promises in the First Amendment it is to their opinions that we should look to mark the status and progress of individual liberty and thus national health. Constitutional scholar Michael McConnell warns us that a dramatic shift on the Court's thinking about the meaning of "free exercise of religion" has occurred. The breadth of protection behind those words, which Americans once took for granted, has been vastly diminished. Though hidden by outward American affluence with its concomitant relative indifference to religious liberty issues, this deprivation of liberty is serious. Coupled with the current American fear and hatred of terrorists, this taking back of American freedom by its highest court is ominous, and has little prospect of improvement in the near future. For Jefferson, the demise of the protection of natural liberties is a cue so drastic as to call for revolution. If the eclipse of traditionally granted religious freedoms is a sign of failing national health, then, presently, we stand on a precipice, foreboding great sickness for our present social and economic order.
From this precipice it may be instructive to take a backward glimpse at the religious protections other nations and societies have afforded their citizenry that we might be reminded of the wealthy heritage we enjoy through our First Amendment.
Most ancient and aboriginal nations concentrated the power of the state and the rulership of the national religion in the same figure. This pharaoh or Caesar, thus empowered, contained supreme authority in a way that left little room for individual freedom outside the "majoritarian" religion. Ancient Egypt, Assyria, Babylon, Media, Persia, Rome, and the Roman Church are examples of this pattern.
In the historical record of the book of Daniel, there are several incidents illustrating this point. There were three Hebrew boys who refused to bow down to an image created at the command of King Nebuchadnezzar. Their observance of the Mosaic commandment to not bow to idols prevented them from going along with the national religion. The King himself ordered that they should be executed by being thrown into a hot furnace. The story illustrates the lack of religious freedom available in Babylonian society. A similar story takes place during the reign of mighty, ancient Persia under King Darius. An order of death is issued for Daniel, a Hebrew member of the Persian government, because he would not pray to the King as supreme god.
The horrible persecution of Christians under the Roman Empire, being thrown to lions and gladiators in the Coliseum, is proverbial. But the record of the Christian Church is no better when centuries later we find the Roman Church persecuting members of the Albigenses and Waldenses, with their pure, if primitive, brand of Christianity, and centuries later still unjustly and mercilessly persecuting the noble Huguenots.
A common thread in these scenarios of persecution is a governmental arrangement which confuses or intermingles in an undifferentiated way the ecclesiastical and civil powers. A state controlled by a church invariably suffers restriction of civil liberty and persecutions of those people who differ theologically from the majority, and a church controlled by the state also invariably leads to restrictions on religious liberty. The Protestant Reformation brought with it much rethinking of ancient and traditional teaching and practice, but one area not only unreformed by the Reformation, but in certain ways retarded, was that of religious liberty and the separation of the church and the state.
The Swiss reformer Zwingli approved the drowning of Anabaptists. Luther signed a statement with other Wittenburg theologians that stated:
Individuals with the wrong view on infant baptism could be put to death by the state! John Calvin signed the death warrant for Michael Servetus who was burned at the stake on October 27, 1553 for the crime of having an unorthodox understanding of the Trinity. Calvin defended this execution, with the approval of Theodore Beza, William Farel and John Knox, by saying that the law of the Roman Empire, the Code of Justinian, prescribed this penalty for a denial of the Trinity. When Servetus was being executed he cried out, "Lord Jesus, have mercy on my soul."
Historian Philip Schaff has written:
It would be fair to say that from the Reformation until the American Bill of Rights there was a sketchy but increasing development of the ideal of full civil and religious liberty. The Reformation separated the Lutheran and Anglican churches from Rome, but only to make the church subject to the state. At the peace of Augsburg in 1555 equal rights in the empire were granted to Catholics and Lutherans, but to no other group. In Germany only one faith was permitted in each territory--that of the ruling prince. This situation theoretically allowed individuals to move to an area where their religion was established (though because of bonding, indenture and other medieval feudal practices, moving to another area was not really an option) but for those with minority religious persuasions there was no sanctuary.
In France liberty waxed or waned, to a large extent, on the whim of the ruler. While Henry of Navarre issued the Edict of Nantes in 1598, guaranteeing personal liberty, Louis XIV revoked it in 1685. The pope praised Louis for the Revocation. The French prisons were filled with Huguenots and a large number were tortured to death, evils referred to by one historian as "the darkest days in the history of France and the history of liberty." Voltaire, Rousseau, and other Enlightenment thinkers helped bring an increased toleration for unorthodoxy through the spirit of liberty fostered in Revolutionary France. The post revolutionary governmental apparatus that stabilized under Napoleon put the emperor, as first consul, at the head of the church, able to nominate bishops and pay them from the state treasury. Protestants were placed on a parity with Roman Catholics, but the state maintained control in matters of discipline and doctrine. Thus toleration, but not true religious liberty was the final outcome in France.
In England the Act of Uniformity under the reigns of Charles II and James II required every minister in England to use the Book of Common Prayer. This led more than 2000 Presbyterian, Congregational, and Baptist ministers to leave their churches. The Act required that any person attending a religious service of more than five persons not conducted after the ritual of the Church of England was to be punished. Noble men of principle such as John Bunyan were treated as criminals and thrown in prison. Many dissenters fled the country.
England's Act of Toleration of 1689, under William of Orange, gave orthodox dissenters, under certain conditions and restrictions, a legal existence and the right of public worship. Its benefits extended to Quakers, Baptists, and certain Independents, but not to Unitarians, Roman Catholics or Jews.
From this thumbnail sketch of history it is apparent that the full flowering of a religious liberty that truly granted freedom for all was largely absent from the world. The "manifest destiny" of a new world opening at a time of widespread intolerance in Europe became a mighty incubator that helped nurture and foster the development of the greatest written guarantee of freedom the world has ever known, the First Amendment of the U.S. Constitution.
But the First Amendment and its mighty guarantees were not "written in the stars"; they were not evolutionary certainties meant to inexorably grace the world at a given time regardless of the activities of men. How is it that established churches in America went the way of the dinosaurs? The precedent in Europe had been established churches, and nine of the original thirteen colonies had established churches. Without some kind of major and radical thought-energy, without some kind of intelligent intervention on the part of men who were committed to carving out a purposed separation of church and state the momentum of American history was headed for continued establishment of religion and continued solidarity of church and state, with all the associated lack of individual liberty occasioned by the merged arrangements. The Puritans, with their powerful influence on future American generations, certainly did not give a high priority to the principle of religious liberty. And it is certain that the powerful Anglican Church did not offer a window to greater religious or civil freedom.
This grand and powerful fact of history is going overlooked by the modern conservative evangelical Christians who act as if the story of the Puritans is the only American story relating to the issue of the separation of the church and state. To look only to the Puritan history is to overlook the non-Puritan forces that led to the framing and ratification of the Bill of Rights.
In the latter 18th century, a struggle took place in Virginia over the issue of paying Christian teachers from the state treasury. Pitted against one another were James Madison and Patrick Henry. Henry supported the idea of funding the teaching of the Christian religion from public monies. The idea was a popular one, in harmony with the thinking of the day, and the thinking of the ages. Madison, lobbying for Jefferson's Virginia Statute for Religious Freedom, saw the need for disestablishment if freedom was to flourish. He was trying to coax a legislature with a strong establishment tradition. The ideas he was fighting for, including the disestablishment of state churches, the separation of church and state, and religious liberty for all men, were new on the stage of history at this point.
They were the germ of what the First Amendment would soon guarantee to all American citizens. Madison's circulation throughout Virginia of the "Memorial and Remonstrance Against Religious Assessments" was a turning point in this pivotal deadlock. Madison labored almost single-handedly to promote disestablishment and the increased freedoms it would bring to Virginia. He distributed the "Memorial" at his own expense. The supreme positioning of the First Amendment religious guarantees flowed from this turning point.
In 1991, a talented Constitutional scholar writes, "the survival of the principal of free exercise exemptions is very much in doubt." That priceless promise of protection, the free exercise clause, can no longer be taken for granted, or viewed as an inevitable advance always to grace America's civil liberties landscape. If the doctrine is not defended or salvaged quickly, it will be powerless to bless generations of Americans with the freedom history shows is necessary for substantive societal health. If Supreme Court trends continue in their present direction, the essential meaning of the free exercise clause will be avalanched by the growing fear of drugs, gangs, cults, and terrorism that is steamrolling liberty's embers with a blacktop of order, restriction, and uniformity.
Michael McConnell writes in a recent Harvard Law Review article about the free exercise clause:
Is this the historic meaning of the "free exercise" clause? Was it meant to never grant special privilege to the person making a free exercise claim? "Special privilege" here meaning that in a clash between a law and a citizen's religious faith, the presumption of Constitutionality would be on the side of the individual and his religious belief. Either the individual would be granted an exemption, or the offending legislation would be stricken down.
Several factors must be immediately considered in the answer to this critical question. First of all, the protections of the First Amendment stand, to a certain degree, in a hierarchical order. The religion clauses are stated first, and therefore, according to some of the founders, in a place of preeminence. Before the freedoms of speech and press are mentioned in that precious Amendment the establishment and free exercise provisions stand at the gateway. For Thomas Jefferson this ranking of freedoms was not without purpose. Jefferson spoke of religious freedom in a way that distinguished it profoundly from other civil liberties. Jefferson held that the Constitution left to the states and the people the right to judge how far freedom of speech and press might be abridged, indicating that these rights are not absolute. But he left to the same authority the right only of protecting freedom of religious opinions, giving no suggestion of abridgement. The argument has also been made, by no less a personage than Supreme Court Chief Justice John Marshall, that Congress had greater power over the press than over the establishment of religion, because the term "abridging" was less encompassing than the term "respecting". For Jefferson this distinction between religious opinion and other opinions was fundamental. In his Notes on Virginia, Query XVII, he says that the legitimate powers of government extend only to those natural rights which were submitted to government and "the rights of conscience we never submitted, we could not submit." Dumas Malone, a prolific biographer of Jefferson, searched the writings of his hero in vain for even a single statement in which Jefferson defends unconditionally any freedom of opinion other than religious opinion.
McConnell marshals evidence to show that the Framers adopted the terminology "free exercise of religion" in place of what had been the more commonly used alternative "rights of conscience" to ensure protection for religiously motivated conduct and to make clear that protection would not extend to secular claims of conscience.
James Madison, the "Father of the Constitution" and a converted champion of adding the Bill of Rights after the initial ratification of the Constitution, held that religious duty "is precedent both in order of time and degree of obligation, to the claims of Civil Society." In his famous Memorial and Remonstrance, written as part of the advancing movement which led to the wording and the sentiments that went into the First Amendment, he wrote that "every man" who becomes a member of a civil society, "must always do it with a reservation...of his allegiance to the Universal Sovereign." It is plain from these and other sources that Madison believed that free exercise of religion had a higher and prior claim on mankind than civil obligation. He believed that the first duty of a good citizen was to his "Creator." Since every man may have a differing view on the nature of that obligation, the state is bound to step away as to judging the appropriateness of each other person's "free exercise" of religious opinion.
This conclusion seems startling, based on current usage, yet this is what the First Amendment intended when it stated that Congress could not prohibit free exercise.
This view, like those of Jefferson and Madison expressed above, was widely held among the Framers. These views presume, indeed exalt the legitimacy of exemptions for free exercise claims, contrary to the modern Court's view that there is little, if any, place for a free exercise claim being exempted from a state or federal law, generally applicable.
Three examples from the general time of the ratification of the Constitution are further evidences that the Founders' view of the "free exercise" clause was one which allowed and encouraged exemptions from generally applicable laws. The example of oaths could stand as exhibit one. It was customary at that time for oaths to be taken to help insure honest testimony. But Quakers and certain others were religiously opposed to oaths. The states could have said, "Too bad! Either take an oath or go to jail. This is a generally applicable requirement. What are you hiding that you will not swear to tell the truth?" This would be a caricature of the modern Court position. But this is not the attitude the Founders took. By 1789, virtually all the states had enacted oath exemptions. The free exercise rights of Quakers and others were granted exemption from an otherwise generally applicable law.
Secondly was the issue of military conscription. Especially back in those trying times of Revolution might it be expected that exemptions would not be granted for refusal to be drafted into military service. Yet almost all the states, the Continental Congress included, recognized the high priority of religious claims of Quakers, Moravians, and others and granted them exemptions from the otherwise generally applicable conscription laws. Here are the words granting exemptions from the Continental Congress:
A third arena showing that the Fathers worked from the standpoint of granting exemptions for the sake of religious conscience is that of religious assessments. States with established churches required payments for the support of those churches. Characteristically these states "accommodated the objection of members of sects conscientiously opposed to compelled tithes."
The above considerations of history must be placed alongside of Justice Scalia's words in the majority opinion of the case of Dept. of Human Resources of Oregon v. Smith. Congressman Stephen J. Solarz (D-N.Y.), sponsor of the Religious Freedom Restoration Act, a bill intending to reverse the effect of the Smith decision, has called the date of the Court's opinion in the Smith case, April 17, 1990, "a day that will live in constitutional infamy", a "devastating blow to religious freedom in the United States." Justice O'Connor, in a separate but concurring opinion says of Scalia's majority opinion:
Though not widely recognized by the American people, their religious liberty has been largely removed. We have entered a new era of the American experiment with democracy, an era obviously not founded, as the first era seemed to be, on a commitment to protect liberty from the intrusion of government. Coupled with the new era we have entered into with a war on terrorism, the future of liberty is not bright. Which is another way of saying we could be entering an era where the citizenry, to gain a greater sense of security, gladly hand over their liberties to a powerful government, or, to use the metaphor of some-- a beast.
Adapted from a paper presented to the 25th
anniversary session of the West Virginia Political Science Association
1. Thomas Jefferson, et. al., "The Delcaration of Independence", July 4, 1776.
2. Albert Blaustein, "The World's Most Famous Export", Liberty, Vol. 85, No. 4, July/August 1990, p. 13.
3. Michael W. McConnell, "The Origins and Historical Understanding of Free Exercise of Religion", Harvard Law Review, May 1990, Volume 103, Number 7, p. 1417, and further in the present writing.
4. The Bible, The book of Daniel, chapters 3 and 6.
5. V. Norskov Olsen, Papal Supremacy and American Democracy, Loma Linda University Press, 1987, p.131.
6. Ibid., p. 132.
7. Ibid., p. 133.
8. Ibid., p. 138.
9. Ibid., p. 136.
10. Ibid., p. 139.
11.Sam Ervin, Preserving the Constitution, The Michie Company, Charlottesville, VA, 1984, p. 225.
12. McConnell, p.1417.
14. Ibid., footnote 400.
15. Harry Jaffa, "On the Nature of Civil and Religious Liberty", from Keeping the Tablets, Wm. F. Buckley, ed., Harper and Row, 1988, p. 155.
16. Ibid., p. 156.
17. McConnell, Ibid., p.1410.
18. James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted as an appendix to Justice Rutledge's dissenting opinion in Everson v. Board of Education, 330 U.S. 1, 28 app. at 63 (1947) (Rutledge, J., dissenting)
19. McConnell, p. 1453.
20. McConnell, p. 1468.
21. Journals of the Continental Congress, 1774-1789, at 187, 189 (W. Ford, ed. 1905) Resolution of July 18, 1775.
22. McConnell, p. 1469.
23. Supreme Court Reports, No. 88-1213, Employment Division, Department of Human Resources or Oregon, et. al., petitioners v. Alfred Smith et. al., (Scalia, opinion of the Court, April 17, 1990).
24. S. Solarz, Spectrum, "Congress vs. the Court: Rescuing Religious Liberty", Vol. 21, No. 4.
Court Reports, No. 88-1213, Employment Division, Department of Human
Resources of Oregon, et. al., pertitioners v. Alfred
Smith et. al., April 17, 1990, (O'Connor, concurring).