Does this Maryland cross violate our Constitution? That very question is currently before the Supreme Court.
Last week, on January 16, America marked Religious Freedom Day. The day commemorates enactment of the Virginia Statute for Religious Freedom of 1786, a precursor of the First Amendment. Written by Thomas Jefferson, the Virginia statute disestablished religion in the commonwealth—“no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever”—and prohibited civil penalties for the expression of religious belief—“all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” Jefferson saw the statute as one of his three great accomplishments; along with the Declaration of Independence and the founding of the University of Virginia, he directed that it be noted on his tombstone.
The Virginia statute, and the debates surrounding it, have had a significant impact on our constitutional law—a disproportionate one, as Mark David Hall recently argued on this site. Justice Hugo Black’s opinion in Everson, the Court’s seminal Establishment Clause case, relies heavily on the Virginia statute to explain the original meaning of the First Amendment. But Virginia’s approach to church-state relations, informed by the views of Jefferson and James Madison, was more separationist than other states’ at the time of the Framing. Massachusetts, for example, kept establishments for another fifty years. Why look to Virginia and not Massachusetts? But that’s water under the bridge. Maybe the Court will one day reconsider its reliance on Jefferson’s statute. For now, though, it is the urtext for the meaning of religious freedom in America.
It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.
This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.
Second, Jefferson’s statute relies on a metaphor—perhaps the metaphor originates with him, I don’t know—that has become axiomatic in America: the religious marketplace. A major problem with religious establishments, Jefferson wrote, is that they rely on taxes to support churches rather than voluntary contributions. Establishments thus “deprive” the citizen “of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern” and “withdraw from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind.”
In other words, religious establishments are market distortions that allow unworthy churches and clergy to survive—unworthiness being judged in terms of popular appeal. Now, you might object that popular appeal is not a great way to evaluate churches or clergy. The market can corrupt faith, just as government can. But Americans have faith that, on the whole, leaving the success and failure of churches to voluntary contributions—to the aggregate of personal choices in the religious marketplace—presents fewer dangers than state financial support.
Third, one cannot help notice how narrow Jefferson’s statute is. It protects only religious opinion and belief. There is not a word about religious exercise. By its terms, the Virginia statute only declares that people are free to believe what they want and to express their opinions; it says nothing about whether people can put those beliefs into practice. To be sure, protecting freedom of religious expression is not insignificant; at the time, the Virginia statute was a radical step in favor of liberty. In many parts of the world today, it still would be radical. But the statute has nothing to say to groups like the Little Sisters, whose religious convictions cause them to act in ways the government disapproves. To protect religious exercise, rather than religious opinion, one would have to look elsewhere.