A recent article points to partisanship as the explanation for several decisions by the Roberts Court, but is unpersuasive and indeed unfair.
Americans are discussing the topic of “religious freedom” quite a lot these days, which might give us the impression that religious freedom is one fixed thing. Or perhaps some would say it used to be one thing but has become something else since the time of the Founding. This Liberty Forum essay will argue that the situation, both historically and today, is more complex than either view.
I want to argue that there is indeed a core or center to the idea of religious freedom in America but that this core or center is at the intersection of, or overlap among, three quite different conceptions of religious freedom, which have a great area of non-overlap as well. It is in the areas of non-overlap, I will argue, where the great constitutional and political battles over the place of religious freedom in American political life occur.
These three conceptions of religious freedom—with their areas of convergence and divergence—have existed from the beginning, but their presence has not been felt in constitutional discussions until fairly recently. This is what makes it seem as though disagreements about religious freedom are all a result of the dissensus of the late 20th and 21st centuries in America. Some indeed are, but not all.
One important reason for the disagreements goes further back, and has to do with the Fourteenth Amendment. The drafters of the Fourteenth Amendment in 1866 intended to “incorporate the Bill of Rights”—that is, apply the Bill of Rights against the states—but the Supreme Court in a series of decisions during the Reconstruction Era stripped the Fourteenth Amendment of that intended meaning. It was not until much later that the Court held that the Religion Clauses of the First Amendment applied to the states, and it is only since then that disagreements and doctrinal disputes over the meaning of religious freedom became a major theme of constitutional discourse. Until recently, most of the issues involving religion arose in the states and they did not become a matter of general public notice. But the disagreements and the variety of understandings of religious freedom go back to the 19th century, and in fact all the way back to the Founding, and even before the Founding.
The title of this essay captures the three distinct views of religious freedom to which I refer. These are distinct views of what religion requires or forbids, of what grounds it, within the American tradition. This implies, I think, that it is very difficult, if not entirely fruitless, to ask what is the essence of American religious freedom, or even, what do the religious parts of the First Amendment really mean. The different notions of religious freedom were present even in the making of the First Amendment.
A recent series of cases and disputes illustrates the basic point I am making. I refer to the Hobby Lobby case from 2014 and similar disputes that have arisen under the regulations established under the Affordable Care Act, a.k.a. Obamacare. The owners of the Hobby Lobby stores, and the religious order that runs my home university, for example, argued that the mandate to supply healthcare packages to their employees that included coverage for contraception contravened their religious freedom. Others, including some employees of Hobby Lobby and employees at many universities, believed that exempting these employers from regulations that were generally valid for other employers violated their religious freedom. The latter feared that any exemption would, on the basis of respecting others’ religious freedom, impose on them a deprivation of a benefit or right. Reflecting the broader division in society, the outcome in Hobby Lobby was a 5 to 4 decision. So it is clear that disagreements thrive over what religious freedom in America means or should mean.
Freedom of Religion
Of the three understandings I have delineated, the most familiar is the one called freedom of religion. This is often thought to be the meaning of religious freedom. The central idea of freedom of religion is that the public order should be established so as to allow the practice of religion as the citizens choose. This idea of freedom of religion extends also to the freedom of those who do not wish to practice religion, not to do so. At the core of this view is a dual idea: that true religious practice must be uncoerced in order for it to be meaningful, and that the state has no legitimate concern with religious belief or practice per se. That second part especially captures freedom-of-religion’s chief policy implication: The state has no business either prescribing or proscribing any item of religious belief or practice so far as these are religious.
The classic formulation of this doctrine appeared in John Locke’s A Letter Concerning Toleration, an essay that appeared in 1688. Locke there expressed the idea of freedom of religion in terms of his theory of the social contract, which is to say that the people who came together to make a contract authorizing governmental power cannot be conceived to have authorized their government to use coercion in matters of religion—and also that, even if they wanted to, they could not. They would not authorize the government to use coercion in matters of religion because they would recognize that religion is no part of the business of government. As Thomas Jefferson restated the Lockean idea in the Declaration of Independence, human beings make government in order to secure their rights to life, liberty, and the pursuit of happiness. These are purely this-worldly matters, so governmental control of religious belief and practice as such is no part of the mission of government.
Moreover, and more strongly, even if the people should desire to authorize government to prescribe or proscribe religious beliefs and practices, they could not, for the right to freedom of religion is inalienable—it cannot rightly be taken away nor can it be given away. The individual’s relationship with God, involving belief and practice of worship, is entirely a matter between that individual and God. The individual may not delegate to another or to others his or her responsibility to worship God in what way seems most in accord with God’s will, or most likely to be pleasing to God.
There is no reason to believe, Locke insists, that the political or ecclesiastical authorities automatically have better knowledge of these matters than the conscientious individual who must be concerned with his or her own standing with God. And if the conscientious individual concludes that the political or ecclesiastical authorities do have a better understanding of what is required, then that individual is free to follow those authorities in whom he or she has this confidence. But none of these religious experts has the right to coerce anyone to hold certain beliefs or engage in certain practices.
Locke went further and argued that in many or most cases, the authorities not only had no guaranteed better insight into what God required of us, but that, in their judgment of such matters, the authorities more often than not brought to bear the wrong kinds of considerations. Thus kings often looked to religion as a means of bolstering their position by encouraging citizens to accept the authority of these particular rulers.
Locke did not think that much differently of ecclesiastical authorities than he thought of kings. Although the former should be concerned above all with the right relation to God, they most often were in fact concerned with the institutional and worldly prerequisites of their own religious establishments. So the authorities—both political and ecclesial—were more likely than not to have self-interested motives when they prescribed or proscribed in the sphere of religious belief or practice.
There are two further elements of the Lockean doctrine that are particularly important for understanding the contours of the pure freedom-of-religion position. What is prohibited is the use of public coercive power to prescribe or proscribe religious belief or practice. The public authorities are not authorized to act in this area. But they are authorized to act in pursuit of the protection of the rights to life, liberty, and the pursuit of this-worldly happiness. Legitimate action taken in pursuit of this legitimate task may in fact touch on religious practice, and when a law is truly aiming at the legitimate tasks it purports to be seeking, then the law overrides whatever claim to religious freedom the individual might raise.
Laws with what we have come to call “valid secular purposes” override religious practices to the contrary. Thus law may regulate or forbid activities indirectly that it could not regulate if it were attempting to regulate religion per se. So, to again take the Hobby Lobby case as an example, it is clear that the pure freedom-of-religion position would dismiss the claims of the company’s owners, assuming we accept Obamacare as in fact having a valid secular purpose. To do otherwise would mean that the law would not be uniform across the entire population, which uniformity is one measure of a good law. It would also mean that some religions were favored over others and would encourage a race between religions for privileged position, just the sort of thing the original devotees of “freedom of religion” deeply wished to avoid. So while the freedom-of-religion notion supplies a robust—indeed an absolute—protection for religious freedom understood as religious belief and practice in themselves, it does not offer great protection to claims to religious freedom that run up against public policies seeking to effectuate the valid secular ends of the state.
One other aspect of “freedom of religion” worth noting is this: Its chief concern is with the state as wielder of coercive power. The basic idea behind liberalism, of which the freedom-of-religion position is an offshoot, is that whatever coercion the state may engage in must be justifiable. One implication of this concern with legitimate coercion is that other forms of governmental action are not under such strict limitations as are coercive ones. Thus Locke, for example, says that the magistrate may publically confess his religion, practice his religion in public, even encourage others to adhere to his religion. But what he may do as a matter of advocacy he may not do coercively.
The pure freedom-of-religion position would thus be open to governmental actions that somehow encourage religion so long as they are not coercive. Of course, as became apparent in many of the areas of the law that affect or concern religion, it is not always easy to say whether or not coercion is involved. For example, does school prayer, when students have a readily available way to opt out, nonetheless coerce via the subtle social pressures that can be brought to bear on a dissenter? This and other borderline issues are of course of great interest, but we will not pause to discuss them here. The upshot is that, in the area now known as establishment of religion, the pure freedom-of-religion position is somewhat relaxed when coercion is not involved.
Freedom for Religion
If “freedom of” is the best known of our three versions of religious freedom in America, “freedom for” is nevertheless the oldest. It came to America with the first European settlers who actually made a go of it on this continent—the Pilgrims and Puritans of the early 17th century. The Puritans—as their name implies—did not seek to overturn the Church of England but sought instead a purified version of the church, more in accord with the early Christian church as they understood it. They sought a different church structure—no bishops, no hierarchy, but instead a Presbyterian form of church governance with each congregation and its elders a self-governing unit. But they did not in principle oppose an established national church to which each and every member of the nation would nominally belong.
The Puritans illustrate well the tendency of these early American adherents of “freedom for religion” to eschew religious toleration or general “freedom of religion.” Perhaps better than anything else, John Winthrop’s “A Modell of Christian Charity” explains the basis of their general intolerance. This was a sermon prepared by Winthrop, longtime leader of the Puritan community, that was thought to have been delivered in 1630 on board the Arabella, one of the ships that brought the first load of Puritans to America (a decade after the Pilgrims came).
Far from being the dour and pessimistic sort of thing we often associate with the Puritans, the sermon’s text brims with hope and even extravagant expectations for new political possibilities. The Puritans are God’s new chosen people, Winthrop said. Like the Jews of Old Testament days they have a special relation—indeed a covenant—with God. They have a special mission, to create what Winthrop famously calls “a city upon a hill”—a community that will be a model for all the world of what the new Reformation Christian dispensation makes possible in the sphere of human social life.
Winthrop’s point of departure is, strikingly, the observation that
God almighty in his most holy and wise providence hath so disposed of the condition of mankind, as in all times some must be rich, some poor, some high and eminent in power and dignity, others mean and in submission.
How unlike the later Declaration of Independence, with its affirmation of human equality as the starting point for a proper theory of politics! Winthrop rather sees hierarchy and inequality in the political, social, and economic spheres as the decisive facts in the human world as God ordained it. The ineqalitarian structure of the human world sets a problem for the governance of mankind: how to knit these dissimilar, unequal, and potentially conflicting parts together. Part of the answer is contained in the law of nature, the rules of justice, and the reciprocal service to each other that the disparate members of the human race can perform.
But for fallen man, justice and complementary need are not sufficient. Winthrop over and again evokes what more is needed: love of the enemy and not only of the neighbor; mercy and not only justice; love of and not only fair treatment of the other. “This love,” affirms Winthrop, following the Apostle Paul, “is the fulfilling of the law.” It is only the properly understood Christian dispensation that brings to light the solution to the human political problem: the reign of love or charity. “This love is the bond of perfection.” It solves the problem of inequality and heterogeneity with which Winthrop began—and only it can do so—for every “body . . . consists of parts and that which knits the parts together, gives the body its perfection” by providing the true “ligaments” to hold together the social world.
How is the new love “wrought”? asks Winthrop. The answer:
Adam, himself rent from his Creator, rent all his posterity also one from another; whence it comes that every man is born with this principle in him, to love and seek himself only, and thus a Man continueth till Christ comes and takes possession of his soul, and infuseth another principle—love to God and our brother.
This love, Winthrop continues, is “the fruit of the new birth [in Christ], and none can have it but the new creature.” And the new birth in Christ, which causes the new birth of love, that solves the human political problem—is the result of the right kind of faith. It follows that the community must be composed of those who hold the right kind of faith and thus the right kind of love. Winthrop and his fellows therefore made great efforts to keep their communities, and especially their churches, pure. They did not admit all comers and they expelled those, like Roger Williams and Anne Hutchinson, who deviated from the true faith.
The Puritans sought freedom for religion but that freedom did not for them include freedom of religion; indeed, it could not. They simply did not conceive of public institutions or the public sphere as a place in which to pursue the secular aims that the “freedom of” partisans made room for. Instead, love, entering the affairs of mankind as the fruit of proper Christian faith, is the chief means by which politics can proceed. And the end or purpose of politics, for the Puritans, is far from the this-worldly protection of universal human rights. As Winthrop eloquently puts it:
The end is to improve our lives and to do more service to the Lord; comfort and increase of the body of Christ, whereof we are members, [so] that ourselves and posterity may be the better preserved from the common corruptions of this evil world, to serve the Lord and work out our salvation under the power and purity of his holy ordinances.
We might summarize the “freedom for” position as expressed by the Puritan John Winthrop as the view that neither the ends nor the means of political life can be grasped apart from religion. Furthering the true religion is the end; the truths of the true religion are the ground; and the fruit of the true religion is the means of accomplishing that end.
The Winthrop version of “freedom for religion” encompasses too much that is outside the overlap, or consensus, on religious freedom in America with which this essay began. To become a version of “freedom for religion” that fits in, or mostly fits in, the religious freedom core, Puritanism would have to undergo two very crucial transformations: it would have to accept religious pluralism as legitimate, and it would have to retreat from the notion that the only means to successful community existence is a population imbued with the one true faith.
Well before the time of the American Founding, these two transformations did occur within American Puritanism. I have tried in my book The Natural Rights Republic (1994) to explain those transformations, but for now I wish to skip well ahead to explore what the freedom-for-religion position looks like in the present day. It endorses positions that are somewhat diluted forms of the Puritan vision, but which are recognizably continuous with it. So adherents of “freedom for” advocate, in a pluralistic setting, the following notion: that the state exists in part to foster and facilitate, and is duty-bound to honor, the religious purposes and commitments of its citizens. The state is to recognize and secure the religious interests, broadly and pluralistically understood, of its citizens, but not to favor one sect or religion over others. The present-day “freedom for” mandates neutrality between different religions, but not between religion and non-religion.
Moreover, present-day advocates of “freedom for” affirm religion as part of the proper means to the achievement of the full range of state ends. Thus religion is looked to as a salutary moral force, not likely to produce the utopia Winthrop hoped for, but promising strong families, well-knit communities, orderliness, and citizens who care for one another as more than merely potential customers or potential competitors.
In terms of the large legal-constitutional issues of our day, the “freedom for” position shares much with “freedom of” even as it breaks from it in several important places.
First, and perhaps most importantly, “freedom for” as we now know it propounds a more robust doctrine of the free exercise of religion and the rights of conscience than does “freedom of.” Thus instead of affirming, as the classic “freedom of” doctrine does, that valid secular purposes always outweigh claims of conscience and free exercise, the “freedom for” doctrine tends toward the opposite view. In the Hobby Lobby case, for example, “freedom for” stood clearly on the side of recognizing the claim of conscientious employers not to be obliged to follow the mandates in the Affordable Care Act that these employers found religiously objectionable. Note that I have said “tends toward”: So far as I know, none of the “freedom for” advocates goes so far as to say that claims of conscience always win—that would be a formula for chaos. Short of that, however, the boundaries of the position are rather undefined and unclear.
Perhaps the most significant aspect of this part of the “freedom for” position is what has happened to it as it evolved from the earlier “freedom for” positions of the Puritans. The earlier Puritans, and before them the Catholics and others, had the substantive claims of their religion accepted as the one true religion—as the standard by which to judge assertions of rights of conscience; but in the present much more pluralistic setting, no such standard is available. This means that the assertion of claims of conscience, of whatever sort, is often itself the basis of assertions of religious freedom, and of legal suits seeking exemption from otherwise applicable civil laws.
In addition, the “freedom for” advocates are much friendlier to governmental encouragement and aid to religious institutions and practices than are the other two versions of religious freedom. Thus “freedom for” is particularly hostile to Thomas Jefferson’s famous “wall of separation” between church and state. In line with their acceptance of religious pluralism, the “freedom for” adherents accept a formula that legitimizes state aid to religious institutions so long as these are available on a pan-sectarian basis. “Freedom for” partisans are often quick to point out that stricter separationist policies actually discriminate against religious people, contrary to the claims of neutrality and fairness often used to justify these policies.
Freedom from Religion
Finally we come to “freedom from” religion. Its grounding is particularly complex, for various historical impulses contributed to its development. On the one hand, as the label suggests, there are some antireligious or at least skeptical roots here. Unlike the “freedom of” position, which derives from the moderate theorists of the Enlightenment, one of the progenitors of “freedom from” was the Radical Enlightenment, with its derogation of religion as superstition and its agenda of freeing mankind from the thrall of this ancient enchaining error.
Karl Marx, who characterized religion as the opiate of the masses, presents one extreme form of this idea. For the Marxist, religion is not an ingress to the highest truths of human existence, but a screen that hides us from the truth and from our liberation. In the hands of a Marx or some of the other radical Enlighteners, “freedom from religion” implies an actively hostile relation between state and church. So far is the state from being an agency for supporting and facilitating religion that it is rather an instrument for uprooting it.
Freedom from religion understood in that manner escapes the core meaning of American religious freedom, in its way, just as much as Puritan theocracy did in its way, for overt action against religion is no part of religious freedom in America.
There is, though, a strain of “freedom from” that has roots in the Radical Enlightenment while at the same time partaking of the core of American religious freedom. This strain has quite other, paradoxically converging roots; in its American (as opposed to its Continental European) beginnings, “freedom from” stems from certain other Protestant doctrines that held to a sharper division of church and state than Calvinist or Anglican or even Lutheran Protestantism did.
It is a well-known story, for example, that in Anglican-dominated Virginia it was an alliance of Enlightenment-leaning forces led by James Madison and Thomas Jefferson, and Baptists along with members of other Christian minorities, who successfully opposed Patrick Henry’s “freedom for” bill to nondenominationally support churches in the Commonwealth. The result of that fight was adoption of the separationist Virginia Statute of Religious Freedom. That is to say, the “freedom from” impulse—meaning a strict excision of the state from butting into religion, and of religion from butting into the state—was in part a strongly religious impulse. The Danbury Baptists, and others in their camp, emphasized both the need for faith to be completely free from any coercive elements, overt or covert, and the fear that any intermingling of the state in matters of religion was inevitably corrupting of the latter.
Be that as it may, in the broad terms in which church/state issues are now discussed, the “freedom from” stance is strongly separationist in a way that would constrain religion. More purely than the “freedom of” position, adherents of “freedom from” posit the ground and purpose of the state in completely nonreligious terms. The state has no religious tasks whatever; it is to treat its citizens as equal citizens, whose religious convictions or lack thereof are of no relevance to their common citizenship or to the business of the state with them. These “freedom from” adherents are not necessarily as hostile to religion as many religious people assume, but they find the views of the “freedom for” crowd regarding the claims of conscience and the benefits to republican government of fostering religion to reflect a deep confusion about the grounds and purpose of political life. The state has no business taking cognizance of religion at all. To grant exceptions to religion as religion, to favor in any way religious institutions or practices, is as confused and wrong-headed as to suppress religion.
The “freedom from” position is thus much closer to “freedom of” than to “freedom for.” But it differs from “freedom of” in a number of ways, the clearest perhaps being its insistence on no concessions to religion as religion, either in the form of exemptions or in the form of non-coercive support. “Freedom from” thus tends to be more doctrinaire and rigorous than “freedom of” and much more prickly about intermingling church and state in any form.
Herewith some examples that were in the news not too many years ago: the use of the phrase “In God We Trust” on American coins or “under God” in the Pledge of Allegiance. According to the “freedom for” position, the inscription on the coins is not only legitimate, but highly desirable, for it constitutes the nondenominational promotion of religion in a context (money) where Mammon would otherwise be likely to dim our awareness of the divine. For “freedom of religion” adherents, this is an easily tolerable intermixing of religion and the state—it is completely non-coercive and interferes in no obvious way with anybody’s free exercise of religion or rights of conscience. “In God We Trust” is highly objectionable to “freedom from” adherents, though. For one thing, it claims to speak for “we”—but not everyone endorses even this very mild and general theistic statement. For another, the state would here try to speak for us as citizens even though our religious commitments, if any, form no part of our identity as citizens.
As for the Hobby Lobby case and the “freedom from” position—don’t even ask.
So here we have a sketch of three alternative meanings of religious freedom in America. Looking at them as they are expressed nowadays, one sees a core area of agreement among them, and in this core area reside those issues regarding the state and religion that we treat as settled. Divisive issues simply do not arise in what we could call this area of incontestability. Much of what it now takes in, to be sure, was very contestable in past ages and places. So this convergence of views is not trivial in any way.
Let me reiterate two of its features: First, that the state cannot constrain any practice of religion per se. It cannot prescribe or proscribe any beliefs or practices of religion as religion or for religious purposes. Second, in whatever way the state does rightly touch religion, it cannot do so in a way that gives a privileged place to any given religion. I should hasten to say that this does not mean that state actions may never affect different religious differentially. For example, if the slaughter of large animals is generally restricted to certain designated areas where various public health concerns are dealt with, it is clear this will impact the adherents of religions that sacrifice large animals as part of their worship much more severely than the adherents of religions that do not.
Outside those areas of convergence, the three versions of religious freedom have important areas of divergence, as I have tried to bring out with my examples.
Many of the debates we have in America about religion and the state boil down to an attempt to answer questions like, “Which of these is the one true religious freedom?” Or perhaps even more frequent are attempts to resolve controversies that arise—do the owners of the Hobby Lobby stores have to supply contraception in their employees’ medical insurance benefits?—by tortuously combining, perhaps without realizing it, conflicting elements of the different meanings of religious freedom. This is one reason why these debates tend to be so acrimonious and apparently unresolvable, and why this area of law and public policy is so unsettled once one has moved outside the area of incontestability I have described.
If much of the friction in our public life traces to unrecognized, or at least unacknowledged, appeals to one or another of these positions that are genuinely present in the American tradition, then perhaps the path to settlement might seem to be to discover which of these is the true religious freedom. In America this quest often turns into the historical question—what did the American Founders understand by religious freedom? Thus do many of our debates turn on one or another originalism inquiry. But if I am correct that these are three distinct but overlapping traditions, all of which were present in the Founding itself, then we are not likely to find an originalism solution we can be satisfied with.