V. Why Should We Protect Religious Liberty?
In view of the Progressive movement’s escalating attacks on religious liberty, it is time to refresh our understanding as to why religious liberty should be protected. I offer three reasons. First, religious liberty is the cornerstone of our Constitution. Our Constitution has enabled unprecedented progress and prosperity in the United States and around the world. Second, religious liberty and political liberty are inseparable. Political liberty and religious liberty developed together in the same struggle against tyranny, and neither can flourish in the other’s absence. Men are not angels, and any government that denies religious liberty to its people will inevitably deny political liberty as well. Third, religious liberty is necessary for maintaining a free republic. Preserving our form of government requires a politically virtuous people, and political virtue requires religious liberty.
The first argument for protecting religious liberty recognizes that religious liberty is the cornerstone of the U.S. Constitution. Three provisions in the Constitution and Bill of Rights protect religious liberty. The First Amendment’s Free Exercise Clause forbids Congress from making any law prohibiting the free exercise of religion.(111) The First Amendment’s Establishment Clause forbids Congress from establishing an official religion in the United States, or favoring one religion over another.(112) The No Religious Test Clause of Article VI, Clause 3 forbids the use of religious tests as a qualification for public office.(113)
Three landmark writings influenced the drafting of these clauses with eloquent justifications for religious liberty. John Locke published his Letter concerning Toleration (1689) immediately after England’s Glorious Revolution. James Madison wrote his “Memorial and Remonstrance against Religious Assessments” (1785) in opposition to a proposed Virginia law providing state support to religious ministers. Thomas Jefferson’s Virginia Statute for Religious Freedom (1786) disestablished the Church of England in Virginia and guaranteed freedom of religion to people of all faiths. The justifications for religious liberty advanced by Locke, Madison, and Jefferson are set out below.
The Free Exercise Clause of the First Amendment provides that Congress shall make no law prohibiting the free exercise of religion. Freedom of religious belief is absolute under the Free Exercise Clause,(114) and the Free Exercise Clause protects religious action as well as religious belief.115 Locke, Madison, and Jefferson gave the following arguments for the free exercise of religion.
Locke argued that neither the New Testament nor Christ’s example supports coercion as a means to salvation. Coercion, furthermore, is incapable of producing belief. It is not possible for an individual, by his will alone, to believe what the state tells him to believe. Our beliefs are a function of what we think is true, not what we are forced to do.
Madison argued that in religion, as in all other matters, the will of the majority must not trespass on the rights of the minority. The right to form one’s own religious belief is an inalienable right. Religion must therefore be left to the conviction and conscience of each individual. Religious belief can only be directed by reason and conviction, not by force and violence. Men form their opinions on the evidence contemplated by their own minds, not on the dictates of other men’s minds.
Jefferson argued that God creates our minds free. Any attempt to influence our minds by temporal punishments, burdens, or civil incapacities only produces hypocrisy and meanness. Coercion in religious matters also contradicts God’s plan for religious faith. God has the power to use coercion to propagate his plan for religious faith, but chooses not to do so. Furthermore, all truth is great, and truth will prevail if left to herself. Truth is the proper and sufficient antagonist to error. Truth has nothing to fear from the contest of ideas so long as men are not deprived of their right to free argument and debate. Errors are not dangerous when men are free to contradict them.
The Establishment Clause of the First Amendment disestablishes religion by prohibiting Congress from making any law regarding the establishment of religion in the United States.
The Establishment Clause prohibits the federal government from establishing an official religion, and it also prevents the federal government from favoring one religion over another. Locke, Madison, and Jefferson gave the following arguments for disestablishing religion.
Locke argued that the state is not competent to discern religious truth. States support contradictory and false religions throughout history. Furthermore, neither God nor men have consented to the state’s undertaking the care of men’s souls.
Madison gave four reasons for disestablishing religion. First, Madison agreed with Locke that civil magistrates are not competent judges of religious truth, as proven by history. Consequently, freedom of religion must be given equally to all, and no single sect should be entrusted with the care of public worship.
Second, Madison argued that the establishment of religion is counter-productive. Establishing a state religion does not maintain the purity and efficacy of religion. Instead, the establishment of religion produces pride and indolence in the clergy; ignorance and servility in the laity; and superstition, bigotry, and persecution in both the clergy and the laity.
Third, establishing religion produces religious intolerance. Tolerance of religious differences produces social harmony every time it is tried. The establishment of religion, however, destroys the moderation and harmony that religious liberty produces between different beliefs. The Inquisition differs from the intolerance of established religion only in its degree, not in its kind.(116)
Fourth, Madison warned that giving government the power to establish a state religion empowers government to limit religious liberty. This, in turn, gives government the power to limit all political liberties and rights, including freedom of the press, trial by jury, the right to vote, and even the right to legislate for ourselves.
Jefferson agreed with Locke and Madison that the state is not competent to discern religious truth. Magistrates are fallible and uninspired men, and magistrates have established false religions around the world and throughout history. Lastly, forcing men to finance the spreading of opinions with which they disagree is sinful and tyrannical.
The No Religious Test Clause of Article VI, Clause 3 prohibits the use of religious tests as a qualification for holding political office.(117) Thomas Jefferson argued that requiring a religious test for holding public office unjustly deprives men of privileges and advantages to which all men are entitled by natural right. Every man should have an equal right to seek public office.
The greatest justification for the No Religious Test Clause, however, comes from the history of civil unrest and revolution caused by three English statutes that established religious tests for holding office.(118) These statutes limited public office to those men whose religious beliefs conformed to the Church of England.
The Corporation Act of 1661 excluded all religious nonconformists from public office. All municipal officials had to take communion in the Church of England.(119)The First Test Act of 1673 excluded Roman Catholics from any civil or military office. It required all civil and military officeholders to swear that they rejected the Roman Catholic doctrine of transubstantiation.(120) The Second Test Act of 1678 required all peers and members of the House of Commons to make a declaration against transubstantiation, invocation of saints, and the sacrament of the Mass.(121) This act excluded all Roman Catholics from both houses of Parliament.
The future James II, then Duke of York, was a secret Roman Catholic serving as Lord High Admiral when the First Test Act of 1673 was passed. James refused to comply with the act and resigned his position as Lord High Admiral. When he succeeded his brother Charles II in 1685, James II abused his powers as King in an abortive attempt to reimpose Roman Catholicism on England. His extreme abuses of power and illegal violations of English rights brought about the Glorious Revolution in 1688 and cost him the throne of England.
John Locke returned from exile in Holland and published A Letter concerning Toleration in 1689. Parliament accepted Locke’s arguments for religious liberty and enacted the Toleration Act of 1689.(122) The Toleration Act permitted Protestants who did not conform to the teachings of the Church of England, such as Baptists and Congregationalists, to maintain their own places of worship, their own teachers, and their own preachers. Social and political disabilities remained, however, for nonconformists. England still denied the right to hold public office to Roman Catholics and nonconforming Protestants. The ratification of the First Amendment in 1791 produced the first national guarantee of religious liberty in world history.
The second argument for protecting religious liberty recognizes that religious liberty and political liberty are inseparable. Political liberty and religious liberty developed together, and neither can flourish in the other’s absence. The experience of our common history with England demonstrates that men are not angels, and any government that denies religious liberty to its people will inevitably deny political liberty as well.(123)
Henry VIII took England out of the Catholic fold with the Act of Supremacy in 1534. English statutes established the Protestant religion in England, and banned Roman Catholics from teaching, serving in the military, or holding public office. When James II, a Roman Catholic, became king in 1685, he dedicated his reign to establishing an absolute monarchy and forcibly returning England to the Catholic fold. James II openly abused his powers as king during this political and religious struggle. Ultimately, the English people rose up against his tyranny in the Glorious Revolution, ending his reign.
James II employed five illegal and unconstitutional strategies during his political and religious struggle. First, he corrupted the courts to establish a “dispensing” power, allowing him to ignore laws he disliked. James used this power to suspend England’s religious laws and place Catholics in control of the army, the Privy Council, the courts, the universities, and the Church of England. Second, James usurped Parliament’s power by rigging Parliamentary elections to “pack” Parliament, prosecuting opponents in Parliament, and finally dissolving Parliament altogether. Third, James used the threat of force to control his Protestant subjects by raising an illegal standing army, placing the army under Catholic command, and illegally disarming Protestants. Fourth, James weaponized the courts by illegally denying Protestants due process. Fifth, James established an illegal Ecclesiastical Commission to persecute ministers and university officials who resisted Catholicization.
James illegally suspended England’s religious laws on April 4, 1688. Seven Anglican bishops presented a lawful petition to James claiming he had no authority to suspend the laws. James responded by prosecuting them for sedition and libel. A jury acquitted the seven bishops on June 30, 1688, and the Glorious Revolution followed soon after.
James II fled England for France on December 10, 1688. William and Mary consented to the English Bill of Rights on February 13, 1689,(124) prior to taking the throne. Forty-one provisions of the U.S. Constitution and Bill of Rights adopt principles from the English Bill of Rights.(125)
John Locke had fled England in 1683 to avoid judicial murder by Charles II and his younger brother, the future James II.(126) Locke returned to London on February 22, 1689, nine days after the English Bill of Rights became law.127 Locke quickly published his First and Second Treatises on Government (1689) and A Letter concerning Toleration (1689). Locke devotes his entire First Treatise to arguing against the divine right of kings.
Locke’s Second Treatise established five principles of government that defined the American founding a century later. John Locke’s A Letter concerning Toleration (1689) argues for religious liberty free from government coercion. John Locke developed all these principles in response to the religious and political tyranny of Charles II (reigned 1680-1685) and his brother James II (reigned 1685-1688), described above. Religious liberty and political liberty thus developed during the same struggle against tyranny. They are inseparable, and neither can flourish in the other’s absence.
Thomas Jefferson adopted Locke’s five principles of government in the Declaration of Independence.128 Together, these principles define the American founding. First, all men are created morally and legally equal.129 Second, God endows men with inalienable rights.(130) Third, men establish civil governments through their own actions. God does not establish kings by divine right.131 Fourth, the powers of government depend on the consent of the governed.(132) Fifth, men may alter or abolish the government if it becomes destructive.(133) Locke’s views on religious toleration influenced the Free Exercise Clause and Establishment Clause of the First Amendment and the No Religious Test Clause of Article VI, Clause 3.
The third argument for protecting religious liberty is the necessity of religious liberty for maintaining a free republic. The Founders never expected the ruin of our republic to come from external enemies. If ruin came to the American republic, it would come from internal vices, just as internal vices caused the ruin of the Roman Republic.(134)
The great challenge facing any free republic is whether its people can maintain the moral discipline and virtue necessary for the survival of free institutions. Men cannot collectively govern a nation if they cannot first govern themselves as individuals. As Edmund Burke wrote, men can only be free if they are able “to place moral chains upon their own appetites. Intemperate minds cannot be free. Their passions forge their own fetters.”(135) Preserving our form of government requires a politically virtuous people, and political virtue requires religious liberty.
Charles de Montesquieu discussed the necessity of political virtue for representative republics in The Spirit of the Laws (1748), a work that profoundly influenced our Founders. Montesquieu observed that despotisms are common throughout history, but representative republics are rare. Despotisms thrive on fear and coercion. Representative republics, however, require political virtue in their citizens.(136) Political virtue is the spring that sets republican government in motion.(137)
Montesquieu defined political virtue as the love of the laws and country.(138) Political virtue limits political ambition to the sole desire to serve one’s country and one’s fellow citizens.(139) This requires a constant preference of public to private interest. Political virtue is “a self renunciation, which is ever arduous and painful.”(140) Maintaining a republic requires the instilling of political virtue. Instilling political virtue in young people is extremely difficult, and it requires the full force of education.(141)
Political virtue is lost when men are corrupted.142 When political virtue is lost, love of the laws is lost. The loss of sovereign laws and liberty soon follow. Love of country is lost to avarice and political ambition, and the public treasury becomes the patrimony of ruthless individuals.143 As Patrick Henry explained, “Bad men cannot make good citizens. No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue.”(144) Constitutions and laws cannot protect us from ourselves. No Constitution, no matter how great, can fill the void created by the loss of political virtue. As George Washington wrote, “No wall of words, no amount of parchment can be formed to stand against boundless ambition aided by corrupted morals.”(145)
No legal system, no matter how great, can fill the void created by the loss of political virtue. As the great French writer Alexis de Tocqueville observed, “The best laws cannot make a Constitution work in spite of morals; but morals can turn the worst laws to advantage. That is a commonplace truth, but one to which my studies are always bringing me back. It is the central point in my conception. I see it at the end of all my reflections.”(146)
Where should we turn for the moral principles required for self-government? How can we find freedom from the shackles of our passions and appetites? Progressives rely on government. Naturalists rely on science. Philosophers rely on human reason.
Experience shows that none of these can supply the moral principles required for political virtue. Government cannot supply the needed principles. Reliance on the coercive power of government inevitably leads to the destruction of liberty and the imposition of tyranny. Science, by definition, is incapable of providing the moral principles required for political virtue. As Albert Einstein observed, “Science can only ascertain what is, but not what should be, and outside of its domain value judgments of all kinds remain necessary.”(147) Philosophers who rely on human reason alone have wholly failed to provide the required principles.(148)
Throughout history, success in transcending human frailty has only been obtained by recognizing the existence of a transcendent moral order. This moral order supplies the necessary principles and motivations to overcome our self- interest, our willfulness, and our capacity for rationalization.149 Plato argued in his theory of forms that this transcendent moral order exists outside the material world. The Stoics argued that this transcendent moral order exists in a rational and benevolent Nature. Christians believe that this transcendent moral order exists in the providence of an omnipotent, omniscient, and loving God.
Every man has the inalienable right to find his own path, to accept or reject religious beliefs for himself. No politician, law professor, or Supreme Court justice has the right to tell any individual what he must or must not believe. As the Establishment Clause provides, government has no right to establish a state religion or to favor any religion over another. As the Free Exercise Clause provides, government has no right to limit the free exercise of religion unless its actions are narrowly tailored and necessary to achieve a compelling governmental purpose. Lastly, as the No Test Act Clause provides, no religious test can be required as a condition of holding public office.