Editor's Note: This article was originally published by RealClearPublicAffairs on April 21, 2021.
The meaning of religious freedom remains one of the more contested areas of our constitutional politics. The progressive left tends to emphasize freedom from religion, especially freedom from the influence of traditional religious sexual morality. Social conservatives, by contrast, emphasize the right to be religious, especially the freedom to live and act in the public square according to one’s religious convictions. With President Joe Biden’s recent tweet that transgender equality is the “civil rights issue of our time,” the conflict between these competing views of religious liberty will only be amplified.
Both sides in our current church-state debates claim the Founding Fathers as supporters. Progressives say the Founders gave us a secular constitution that does not acknowledge God or the Bible. The First Amendment, moreover, prohibits the establishment of religion, which Thomas Jefferson said erects a “wall of separation” between church and state.
Conservatives counter that the Founders embraced religion in their deeds. Consider George Washington’s first inaugural, most of which was a prayer. “It would be peculiarly improper to omit in this first official Act,” President Washington declared,
my fervent supplications to that Almighty Being who rules over the Universe, who presides in the Councils of Nations, and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the People of the United States . . . .
Conservatives also note that the First Amendment declares that Congress “shall make no law . . . prohibiting the free exercise” of religion. Whatever the Establishment Clause means, conservatives claim that the Founders’ speeches, deeds, and other constitutional provisions reveal that they did not intend to purge religion from the public square.
Given these seemingly contradictory commitments – freedom from religion, on the one hand, and freedom for religion, on the other – what are we to make of our “first freedom”? Does the Founders’ Constitution offer a coherent understanding of religious liberty, one that we might recur to today in our religiously and morally pluralistic nation?
The Founders have much to teach us, but the lessons they offer do not neatly fit into our current political categories. Freedom from religion and the freedom to practice one’s religion are, in fact, both aspects of the Founders’ understanding of our inalienable natural right of religious liberty.
The Founders’ Understanding of Religious Liberty
We don’t quite understand the Founders because we have forgotten their basic principles of government. As we do today, the Founders used the language of rights; but their understanding of rights was far deeper, philosophically richer, and more integrated with a robust notion of duties than ours. We tend to think of rights as interests that are especially important or necessary. We say health care and freedom of speech are rights, for example, because we believe bodily health and the expression of one’s opinions are necessary to live a decent life. At the same time, our legal practice recognizes that even “fundamental rights,” such as free speech, can be curtailed if “compelling state interests” are at stake and the government uses “the least restrictive means” to do so. The underlying presumption in how we recognize rights and in how we limit them is that rights come from the state. We think good government grants extensive rights to citizens, because we believe the role of government is to satisfy our collective will and help us gratify our individual desires. But the extent to which any particular right is available depends on it being “balanced” against other rights and state interests, a process administered in the final analysis by the administrative state and the federal judiciary.
The Founders had a different understanding, at least when it came to “natural rights” such as religious liberty. “Natural” is this context means that the foundation of the right lies in our human nature as created by God. The natural right to religious liberty, in other words, is not granted by government; it is a part of the natural fabric of the created moral order, an order in which rights and duties are reciprocal. A just government recognizes this preexisting order; it does not create it.
James Madison, the most philosophically articulate Founder on religious freedom, stated the matter most clearly. “What is here a right towards men,” Madison explained, “is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.” Because we are first and foremost children of the Creator, our first allegiance is always to God. The political institutions we create and the civic obligations we impose, accordingly, must recognize our preexisting sacred duties. Our politics must remain limited in its aims out of respect and deference to higher claims of religious authority. We have a political right to religious liberty because we have more sacred and sovereign duties to God.
For the Founders, then, the right of religious liberty imposes limits on the state’s authority. “Congress shall make no law . . . prohibiting the free exercise” of religion because political authorities cannot legitimately exercise direct authority over religious exercises as such.
Congress – and the states, via the Fourteenth Amendment’s application of the First Amendment against them – lacks legitimate authority to regulate any aspect of religious worship, including by whom, how, where, and when it is performed. Government officials, accordingly, have no authority to punish an individual for improper worship or to command an individual to worship. How, or whether, individuals worship is not, properly speaking, a direct concern of government. It cannot be, since we the people do not – indeed, could not – give government that authority. That is what it means for the people to retain their “inalienable” rights.
This absence of jurisdiction that prohibits regulation of worship as such is also why the Founders said government cannot establish a religion. The Establishment Clause and the Free Exercise Clause together articulate the limits on government authority needed to safeguard individuals’ natural right to religious liberty. Just as government cannot regulate religious practices, it cannot legitimately license preachers or employ official religious ministers as agents of the state, to take two classic examples of what constitutes an establishment of religion.
The Founders understood these limitations on governmental authority to be categorical, which is why they declared that “Congress shall make no law . . . .” For the Founders, “no law” really means no law; since government lacks authority to regulate religious exercises or license ministers, it can neverlegitimately do so. But the categorical character of religious liberty also means that its scope is relatively narrow. When government acts within its proper domain, religious citizens can be accommodated from burdensome laws, but they have no right to be exempted from otherwise constitutional laws. Likewise, if government cooperates with religious institutions to accomplish an otherwise legitimate civic end, no constitutional barrier is trespassed. The Founders understood the inalienable natural rights of religious liberty only to require the state to remain within its proper sphere. When it does so, legislation can affect religion in ways that religious citizens (just like other citizens) might find either advantageous or unwelcome.
The Supreme Court’s Understanding of Religious Liberty
The Supreme Court, however, has long departed from the Founders’ understanding. Starting in the 1940s, the Court expanded the Establishment Clause by reading it to prohibit government policies from advancing religion, even if those policies pursue an otherwise legitimate civic purpose. It increasingly assumed that the federal government must be neutral between religion and irreligion. The Court also expanded the Free Exercise Clause in the 1960s, ruling that it means religious individuals must not always obey legitimate laws that they find burdensome. Today, this interpretation is often criticized by liberals and embraced by conservatives.
In perhaps its most famous “wall of separation” decision, Lemon v. Kurtzman(1971), the Court held that a Catholic school could not receive state funds even to support the teaching of mathematics and other nonreligious subjects. Because money is fungible, the majority opinion held, public funds at religious schools might end up supporting religious education indirectly, thus violating taxpayers’ rights to freedom from religion. For the same reasons, in more recent years the Court’s liberal justices voted to prohibit religious schools from participating in state-funded school-voucher programs in Zelman v. Simmons-Harris (2002), and, in Trinity Lutheran v. Comer (2017), voted to uphold state constitutional provisions that mandate the exclusion of religious institutions and schools from participating in government-funded programs – even innocuous ones, such as programs to improve the safety of school playgrounds.
Following the Founders would lead to a much more common-sense result: if a government policy pursues a valid civic purpose and if religious individuals or institutions qualify to participate in the policy under nonreligious criteria, they shouldn’t be disqualified on account of their religious character. The Establishment Clause should not be read as a mandate to discriminate against religion.
The same kind of rule, in reverse, should apply to the Free Exercise Clause. Many social conservatives understand the right of religious liberty to mean a right of religious individuals and institutions to be exempt from laws that burden their religious beliefs or commitments. The locus of such arguments today is LGBT+ non-discrimination laws, which many traditional and orthodox Jews, Christians, and Muslims find impossible to comply with fully. Most exemption litigation today falls under the 1993 Religious Freedom Restoration Act, not the First Amendment. Nonetheless, social conservatives’ basic argument remains the same: religious liberty means that individuals ought to be exempt from otherwise valid but religiously burdensome laws.
The Founders, again, would have held a narrower view of the rights of religious liberty, at least at the level of natural rights. If and when the government passes valid laws that pursue a legitimate civic purpose, the Founders held that religious individuals and institutions have no natural or constitutional right to be exempt from them. The Founders recognized that the rule of law is not perfectly just and that, in some circumstances, exemptions from generally applicable laws might be prudent – for example, Quakers were commonly exempted from militia service during the Founding era. Such exemptions, however, were not understood to be a matter of constitutional right. The Free Exercise Clause was not meant to be a religious-privilege provision.
Church-state issues remain a front in our culture wars, in part, because it is easy to see the unfairness of each side’s position. Court liberals seek to prevent religious individuals from participating in our civic life on equal terms. They unjustly penalize religious citizens to advance an exaggerated notion of freedom from religion. Court conservatives seek to exempt religious individuals from the civic obligation of following duly enacted law. Doing so extends special privileges to religious individuals alone, violating basic notions of equality and fairness.
Adopting the Founders’ approach certainly would not satisfy everyone. Liberals would have to accept that freedom from religion means that one cannot be coerced to go to church – not that one can eliminate the presence of religion from the public square. Conservatives would have to accept that religious freedom means only that government cannot impose targeted disabilities on religion – not that one is entitled to exemptions from otherwise valid laws.
Perhaps the Founders’ more modest approach to religious liberty would satisfy no one. It would emphasize legislative compromise and downplay the role of the judiciary and special-interest law firms. Religious and nonreligious citizens would have to learn to get along better and attempt to work together and adopt laws that can apply to everyone equally. Social conservatives would have to focus on preventing the passage of laws that they find oppressive, not on getting exemptions from them once they’re on the books.
It’s possible that such an approach would only inflame more political disagreement, that religious and nonreligious citizens are so far apart that the best we can hope for is to vigorously assert one’s own conception of rights and defeat the other side in court. But that approach hasn’t worked well for anyone. For more than three generations, we’ve attempted to ignore the Founders’ wisdom on these questions. Given the current state of our partisan divisions, isn’t their approach worth another try?
Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and a Concurrent Associate Professor of Law at the University of Notre Dame. The Founding Director of Notre Dame’s Center for Citizenship & Constitutional Government, he is completing a book titled “Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses.”