Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
Thomas Jefferson did not help draft or ratify the First Amendment, but one argument for favoring his views over those of a Roger Sherman or an Oliver Ellsworth when investigating the “generating history” of the Constitution’s religion clauses is that Jefferson was more important than most Founders. By that measure, investigators of that history ought not to ignore George Washington. Nor shall this series on participants in the Founding-era debates over religious liberty and church-state relations. (Here are posts one, two, and three in the series.)
Raised in an Anglican home, the 30-year-old Washington became a vestryman in his local parish in 1762. This fact says little about his religious convictions, as Virginia gentry were regularly appointed to such positions regardless of piety or belief. Washington was intensely private about his religious commitments, so it seems best to conclude, with Vincent Phillip Muñoz, that we “may say with confidence that Washington believed in a good and providential God, but other than these basic tenets, we can say little with certainty about the content of his faith.” Washington was not similarly restrained when it came to religious liberty as a principle. His most eloquent treatment of the subject is found in the famous letter he wrote in 1790 to the Hebrew congregation of Newport, Rhode Island. In that missive, the new President said:
All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it were the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
Washington, like many Founders, distinguished between a policy of toleration of religious minorities and the view that religious liberty is an “inherent natural right” that may not be abridged by governments. This letter to a small, politically insignificant religious minority (there were between 2,500 and 4,000 Jews in the United States at the time) helps show that he understood that religious liberty is a right that should be protected for all people, Christians and non-Christians alike.
Of course no right is absolute, and it is telling that Washington stipulates that the nation may properly require all Americans to “demean themselves as good citizens” and to give “on all occasions their effectual support.” As commander of the Continental Army, he had little patience for Quakers and other religious pacifists who refused to serve in the military. He supported legislative protections for such pacifists, but there is no evidence that he believed they had a natural or constitutional right to avoid combat.
Washington thought that governmental encouragement of religion was compatible with religious liberty. In 1785, in the midst of acrimonious debates over Patrick Henry’s general assessment bill, he wrote to his neighbor George Mason that
although no man’s sentiments are more opposed to any kind of restraint upon religious principles than mine are; yet I must confess that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denominations of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain proper relief. (Emphasis in original.)
He was not averse to “making people pay towards the support of that which they profess.” On the other hand, since Virginia had, by his lights, more important matters to look after, he wished that “an assessment had never been agitated.”
Favoring such encouragement in principle, he endorsed it or not according to the circumstances. General Washington had, for instance, ordered the officers and soldiers of the Continental Army to attend “divine services” if at all possible. He supported military chaplains and, as President, issued calls for thanksgiving and prayer. Like many of his colleagues, he was convinced that religion and morality were necessary for republican self-government. Most famously, in his Farewell Address (1796) he wrote:
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
In the last line, Washington hints that a few individuals are able to be moral without being religious, but he did not think this was true for most citizens. Because of religion’s positive contributions to America’s civic life, he thought it appropriate for the state and national governments to encourage it; and he even suggests that those who “subvert these great pillars” are unpatriotic.
Even if faith produces important social goods, there are excellent reasons to conclude that governments should not promote it. Washington may well have been wrong on this point, yet anyone interested in an accurate account of the Founders’ views on religious liberty and church-state relations cannot simply ignore the convictions of the nation’s most indispensable Founder.
 On the common but unfounded assertion that Jefferson’s views influenced the men who drafted and ratified the First Amendment, see Mark David Hall, “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment,” American Political Thought 3 (Spring 2014), 32-63.
 Vincent Phillip Muñoz, “Religion and the Common Good: George Washington on Church and State,” in The Founders on God and Government, edited by Daniel L. Dreisbach, Mark D. Hall, and Jeffry H. Morrison (Rowman and Littlefield, 2004), pp. 1-22. Muñoz provides a detailed treatment of Washington’s views on religious liberty and church-state relations.