The Freedom of Religion
“The Very Origin of Existence of the United States”
Even though the Framers of the Constitution were very careful to give only a few delegated powers to each of the three branches of government, that is, about twenty powers to congress, six areas of power to the president, and only eleven kinds of cases assigned to the federal courts, still there were some who were not satisfied that enough protection had been provided to the people and the states in the Constitution. They therefore let it be known that a Bill of Rights had to be included in order to receive their endorsement. This was the reason the Bill of Rights was nearly the first item of business taken up by the new government.
When a Bill of Rights was suggested at the last minute in the convention, some of the Framers said they did not think it was necessary because they had not given the national government enough power to trample on the rights of the people. Some of the wiser observers of history, like George Mason, however, knew human nature and he would not be satisfied until the protection of a Bill of Rights was added.
It is interesting that the Bill of Rights includes a Preamble, which most Americans have never read because it is not included in most printings. It reflects the importance the Founders placed on the protection of some very special rights mentioned in the Bill of Rights:
"The Conventions of a number of states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses be added; and as extending the ground of public confidence in the government, will best insure the beneficent ends of its institution, [be it] resolved...."
Freedom of Religion:
The Most Important of the Rights Listed
The freedoms of speech and press are guaranteed in the very first amendment to the Constitution and thereby prevent the federal government from any action dealing with these two sacred rights of citizens. If any laws were needed in these areas they were to be left to the states’ jurisdiction. It would seem then that that was all that was needed to keep the national government in check, since the freedom to say and write whatever one wishes would give one complete freedom of conscience to also believe whatever one wishes. But the Founders knew something more was needed. Constitutional scholar Dallin H. Oakes explains that the freedom to practice one’s religious beliefs should receive an even greater position than the freedom of speech and press in the First Amendment. Said he:
“Religious belief and preaching must be protected against government action…. But unless the guarantee of free exercise of religion gives a religious actor greater protection against government prohibitions than are already guaranteed to all actors by other provisions of the Constitution (like freedom of speech), what is the special value of religious freedom? Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious preaching and action than to other kinds of speech and action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.” (Dallin H. Oakes, “Fundamentals of Our Constitutions,” Utah’s Constitution Day Celebration, September 17, 2010, emphasis in original)
It should also be remember that Thomas Jefferson placed religious freedom on the highest pedestal when he wrote his own tombstone inscription. He did not even mention the fact that he had been twice elected to the presidency of the United States. Instead, he included as one of his accomplishments, by which he wished to be remembered, that he was the author of the “Statute of Virginia for Religious Freedom.” Jefferson’s philosophy that the number one protection that government can give individuals, is also reflected in the inscription which encircles the inside of the rotunda of the Jefferson Memorial in Washington, D. C.:
"I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man."
President Jefferson was insistent that the right of conscience of individuals was completely outside the purview of government:
“No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority. It has not left the religion of its citizens under the power of its public functionaries.” (Bergh 16:332, 1809. Quoted in The Real Thomas Jefferson, p. 605 )
President George Washington was equally emphatic that one only need answer to God and not to government for his religious opinions and mode of worship:
“I have often expressed my sentiments that every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience.” (To the General Committee of the United Baptist Churches in Virginia. Fitzpatrick 30:321n, (1789. Quoted in The Real George Washington, p. 764 )
Congress itself, in its code of laws, has consistently held that:
- “The right to freedom of religion undergirds the very origin and existence of the United States.” And that:
- “Freedom of religious belief and practice is a universal human right and fundamental freedom…” (22 U.S. Code § 6401)
“Congress shall make no law… prohibiting the free exercise thereof.”
The Founders knew that beliefs drive actions. History is full of such examples. Without the ability to act on ones’ beliefs, the beliefs are really not fully protected as sacred. For this reason, the Founders included not only the prohibition on the federal government from telling people what they must believe (establishing a religion), but also a prohibition against the federal government from preventing citizens to freely exercise their religious beliefs (prohibiting the free exercise thereof). In America, citizens were free to show by their actions what they believed in their hearts. The Bible is filled with examples, parables, and doctrines to the effect that unless a person’s actions reflect a person’s belief, he is a hypocrite, a whited sepulchre, or as sounding brass or tinkling cymbal. Actions must follow beliefs if humanity is to rise above the natural man. It would seem then that any government which prevents its citizens from acting on their beliefs is reflecting the tool of tyrants and is using an age-old technique to gain master over its citizenry.
Should there be any limits on the exercise of one’s religion?
Does freedom of religion, then, mean one can do anything he wants to do in the name of religion? The Founders said not exactly. Like any other freedom, it must be held within the restraints of morality and reason. But freedom of religion, as well as speech and press, are such sensitive issues, the Founders felt that any limits on these must be established by state and local governments, where abuses can be more easily detected and corrected and where differences can be allowed from one place to another. Hence, the prohibitions in the First Amendment are directed toward the federal government and are absolute. Not even the federal courts were to take on such cases. The states were left free to establish any regulations in these matters.
Thomas Jefferson explains that even the freedom to exercise one’s religion has its limitation when it comes violating another’s unalienable rights. One cannot commit a crime and justify it on the basis of religion:
“Whatsoever is lawful in the commonwealth or permitted to the subject in the ordinary way cannot be forbidden to him for religious uses; and whatsoever is prejudicial to the commonwealth in their ordinary uses, and therefore prohibited by the laws, ought not to be permitted to churches in their sacred rites. For instance, it is unlawful in the ordinary course of things, or in a private house, to murder a child. It should not be permitted any sect, then, to sacrifice children. It is ordinarily lawful (or temporarily lawful) to kill calves and lambs. They may, therefore, be religiously sacrificed. But if the good of the state required a temporary suspension of killing lambs, as during a siege, sacrifices of them may then be rightfully suspended also. This is the true extent of toleration.” (Ford 2:102. Quoted in The Real Thomas Jefferson, p.603)
In other words, government has a legitimate role in protecting the life, liberty, and property of its citizens from those who would infringe on them, even for so-called religious reasons.
But what happens when government officials begin to think they can and should regulate the way people operate their businesses and begin to demand that they do things that violate the people’s conscience and their religious beliefs in areas that have nothing to do with protecting unalienable rights?
The encroachment of government on the exercise of religion today
In a recent interview, Hannah Smith, senior counsel for The Beckett Fund for Religious Liberty, gave this summary of the intrusion of the federal government on the exercise of religious freedom:
“I think we're currently seeing increased threats to religious autonomy, which is eroding our right to religious freedom. Certainly, in the context of colleges and universities, we're seeing more and more policies that are being set that would require religious student organizations to have leaders that are nonbelievers and these policies are forcing these religious student groups off campus. There are also threats to religious individuals in their professions and not being coerced to acting in a way that's contrary to their religious beliefs. So, for example, Christian pharmacists who object to dispensing abortion-inducing drugs and state regulations that would force them to dispense these drugs even when the state can very easily permit them to refer these customers elsewhere, yet they are forcing them to do so against their religious convictions. Another example is photographers or innkeepers who would be forced by regulations to provide commercial services to those whose behavior is censured by their religious teachings. For example, a Christian wedding photographer was fined because she refused to photograph a ceremony that violated her religious teachings on the family. Freedom of conscience is the right to not be forced to do something that violates the truth that God has spoken to your heart. And so it’s that freedom of conscience that undergirds the freedom of religion.”
This intrusion of government into the exercise of religious is fueled by a misapplication of the word “discrimination.” Americans have been fed such a steady diet of anti-discrimination propaganda that many now think that any kind of discrimination is wrong even in our own affairs. But all of us discriminate all the time and every day in what we wear, what we eat, our daily activities, what we chose for leisure, with whom we associate, where we live, and in a hundred other ways. Truly free people are a discriminating people, but, of course, there should be no discrimination in the application of law (all laws should be made for all the people), before the bar of justice (protecting equal rights), or in the use of the public funds for public purposes (equal benefit of legitimate tax-payer dollars).
When governments begin to mandate that a person must perform an act which directly contradicts the way a person choses to exercise his religious beliefs, it is an affront to the Founders, to the American way of life, and to the Constitutional guarantee of freedom of religion. This is especially egregious when the federal government does so because, under the Founders’ formula for freedom, it is strictly prohibited from involving itself in such matters, as before noted. It is opening the door wide to tyranny over the most precious American freedoms and, hence, to all our freedoms. Restricting our exercise of religious beliefs is, in effect, denying us religious freedom, the most precious of all our rights.
Hopefully, the time is coming when enough Americans will awaken to a sense of our awful situation.
Earl Taylor, Jr.