On Thanksgiving, we remember that this nation was founded by people seeking to freely exercise their religion—a liberty that has come under much fire in recent times. This would be a good time to remember what the Free Exercise Clause originally meant.
The clause and its context read as follows:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The latter part is the Free Exercise Clause. Thus, the First Amendment prohibits Congress from passing a law that prohibits the "free exercise" of religion. The Fourteenth Amendment applied this rule to the states.
So what do the words mean? First, it should be noted that James Madison, the principal framer of the Free Exercise Clause, defined "religion" as "the duty which we owe to our Creator and the manner of discharging it[.]" Thus, the Free Exercise Clause presumes the reality of a Creator God, that He imposes duties on man and that man should be free to discharge those duties.
Madison went on to argue that religion "can be directed only by reason and conviction, not by force or violence." The problem in the old world was that different Christian sects disagreed on how to discharge the duties that they owed to God and tried to compel them to do it their way, often through force and violence. But because only reason and conviction could tell a person how to discharge their duties to God, Madison argued that the "Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate."
Madison's Memorial and Remonstrance should be read as a whole, and this post would be four times as long as usual if I copied and pasted it all here. But those opening sentences capture the essence of Madison's view.
According to Stanford Professor Michael McConnell, Madison's view reflected the views of the public concerning this matter. Noting the nature of Madison's argument, McConnell says, "Madison advocated a jurisdictional division between religion and government based on the demands of religion rather than solely on the interests of society." Consequently, McConnell concludes:
“If the scope of religious liberty is defined by religious duty (man must render to God “such homage … as he believes to be acceptable to him”), and if the claims of civil society are subordinate to the claims of religious freedom, it would seem to follow that the dictates of religious faith must take precedence over the laws of the state, even if they are secular and generally applicable.”
Thus, free exercise of religion is not just the freedom to believe or worship inside the doors of a church but the freedom to freely exercise one's religion. If the laws of society conflict with the duties one owes to God, then Madison and the Framing generation would have believed that human laws should be subordinate to religious duty. In other words, if religious duty conflicts with the law's requirements, then the Free Exercise Clause forces the government to grant religious accommodations.
Are there exceptions to that rule? Of course. Jefferson wrote that if religious exercise broke out into "overt acts against peace and good order," then the civil government may step in. Madison likewise wrote that the right of free exercise should prevail "in every case where it does not trespass on private rights or the public peace." Many states at the time explicitly spelled out limitations like these in the religion clauses of their constitutions.
In modern times, this liberty has come under so much fire that it may have made the Pilgrims ashamed that they ever crossed the Atlantic to secure that freedom here. But the good news for those facing abridgment of their first freedom under the guise of sexual orientation/gender identity ordinances and the like is that the Supreme Court's newfound interest in constitutional originalism may eventually lead to the revival of the robust protection that religious liberty so deserves. Let us pray that that day comes sooner rather than later.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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