Remote voting and a more “transparent” Court would likely lead in directions the founders explicitly sought to avoid.
Michael Zuckert’s Liberty Forum essay is a great introduction to religious liberty as it is discussed in America today, and provides a useful analytical framework to understand the tensions and controversies we face with regard to religious liberty, and perhaps liberty more generally. He strikes me as on the mark in his conclusion that religious liberty is ultimately a political subject in the United States, which demands negotiation among competing goods, perhaps even competing understandings of justice, represented, in part, by competing understandings of the nature and purpose of religious liberty. That said, Zuckert’s formulation, precisely because it describes today’s conversation about religious liberty so well, also obscures some of the underlying issues that make the topic so contentious.
That the term “freedom of worship” is becoming increasingly popular among Democrats, in Mrs. Clinton’s concession speech, for example, says something about today’s situation, and points to the central question. Does what Zuckert designates “freedom for religion” mean government-backed religion only; or does it mean that government leaves us free to go about our lives in accord with our consciences, in a largely autonomous realm of civil society? The turn to freedom “of worship” suggests that even on the Left, “freedom of religion” implies rather more than merely being free to worship (in the narrow sense) as one chooses.
In short, does freedom of religion, rightly understood, entail the free exercise of religion in civil society? If so, the expansion of the state into a formerly more free and open civil society is a source of much trouble. Similarly, with the change in our notion of “rights.” Does viewing rights as benefits deployed by government rather than as gifts of our Creator (see Franklin Roosevelt’s “Second Bill of Rights”) represent a new complication, and do the troubles it causes represent a repudiation of the principles of 1776?
To understand this better, it will help to reconsider religious liberty in the colonial era and in the Founding era, and to do so in conjunction with their larger ideas of liberty in general. Zuckert makes Locke central to religious liberty, writing:
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.
Yet the tradition of religious liberty in the colonies before 1776, indeed before Locke’s Letter, is important to understanding religious liberty in the United States. Putting aside the fraught historical question of the compact in colonial New England (the Massachusetts Puritans were Congregationalists not Presbyterians, and there is a very strong analogy between the Congregational polity and the compact theory), the conviction that no government has the right to use coercion in matters of faith is Roger Williams’ formulation in his “Bloudy Tenent of Persecution” of 1644. According to Williams, “All civil states with their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the spiritual or Christian state and worship.” He put the policy into practice in his colony in Rhode Island.
Establishing the Pennsylvania colony in 1680, William Penn followed the same rule. Penn’s Charter of Liberties did not, however—nor did Locke’s Letter—extend toleration to atheists. Penn restricted government service to Christians but welcomed all believers in God to the colony. As for Jefferson, readers of his 1785 Notes on the State of Virginia are well aware that he allowed avowed atheists a place in his republic. (Jefferson did, however, in the next “query” of the Notes, suggest that a republic of atheists might not address the problem of slavery so well as one that feared God—“ can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?”)
Both Roger Williams and William Penn believed that religious persecution was sinful, a violation of God’s law. Would that make their efforts, in Zuckert’s account, “freedom of religion” or “freedom for religion”? Both, I would say. If we read Jefferson closely, he is similarly hard to pigeonhole.
Recall that the actual title of the “Virginia Statute” is “A Bill for Establishing Religious Freedom,” It begins this way:
Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint.
In other words (as I have noted elsewhere), for Jefferson, religious liberty is itself a form of “establishment,” following from what he takes to be God’s wishes for the governance of the world. That formulation comports with Jefferson’s tendency to brand his political opponents “heretics.” What was Jefferson up to? He was suggesting that the true form of “establishment” was the establishment of truths that are self-evident to all reasoning men—the truths of the law of nature.
Notice his use of the terms “the opinions and belief of men.” The rest of that part (Section 1) of the Virginia Statute refers only to “opinions,” and never again to “belief.” The word “belief” reappears again in Section II: “no man shall be compelled to frequent or support any religious worship . . . nor shall otherwise suffer, on account of his religious opinions or belief.”
But what is “belief” in contrast with “opinion”?
Jefferson defined the former, when writing to John Adams in 1813, this way: “I suppose belief to be the assent of the mind to an intelligible proposition.” The “self-evident” truths of the Declaration (“which follow involuntarily the evidence proposed to their minds,” in the language of the Virginia Statute) are “beliefs” and not mere “opinion.” We can take this, then, to be the one rational form of establishment. Jefferson’s “sacred and undeniable truths,” as the first draft of the Declaration described them, are, he thinks, the law of reason.
Even so, it is suggestive that those who disagree, or who merely draw different inferences from these truths, he tended to brand “heretics.” These truths might be, in Jefferson’s view, True in the robust sense; but they also, in his scheme, took the place of the sacred truth that was classically understood to be necessary in any functioning regime.
What becomes of Jefferson’s scheme when Americans cease to regard the laws of nature and nature’s God as more than just another particular confession? That is one part of the problem we face today.
To understand the roots of today’s problem it is also worth considering their historical, perhaps Historical, dimension. Jefferson’s thought again helps us understand what is going on. The third President believed that once Christianity ceased to be the established religion in the states, it would transform Christianity fundamentally—perhaps it would transform all the institutional religions the world had previously known. More broadly, he believed that History was changing religious belief. In the letter to Adams quoted above, he argued that “it is too late in the day for men of sincerity to pretend they believe in the Platonic mysticisms that three are one, & one is three.” And when Connecticut ended its establishment, he exclaimed:
I rejoice that in this blessed country of free inquiry and belief, which has surrendered its creed and conscience to neither kings nor priests, the genuine doctrine of one only God is reviving, and I trust that there is not a young man now living in the United States who will not die an Unitarian.
Absent the force of an establishment, Jefferson held, religion would become more tame and more rational. It would serve History, turning men away from the Trinity and toward Unitarianism.
In this hope, Jefferson was mistaken, and that is causing a problem. The institutional religions have not disappeared. Even so, America’s governing class—and such a class rises inevitably when a state grows and grows—is increasingly hostile to them. They cling to their belief that traditional religion ought to be gone, and is, in fact, dying. The elite’s intrusions upon the rights of conscience are not, in the elite’s view, problematic because the religious beliefs it hems in are historically “backward” and atavistic. Conveniently, the religious belief held by the governing class is defined as “not religion”—taking the place of the law of Nature in Jefferson’s formulation, and obscuring the degree to which the Progressive cause has itself become sacred to more and more Americans. The Chair of the U.S. Commission on Civil Rights explained the implications of this logic when he proclaimed:
The phrases “religious liberty” and “religious freedom” will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.
The possibility that what is going on is that Americans disagree fundamentally in matters of conscience, and therefore about how a good life is lived, is not understood as a possibility. The alternatives are to accept the new teaching and be Enlightened, or to cling to the old teaching and be a bigot.
The second dimension here, in addition to the belief that History is putting religion, as it has been known, in its dustbin, is the expansion of the state, particularly the federal government.
Jefferson recognized that respect for the liberty of conscience, as a functional matter, worked best when government had a small footprint—which he described in his First Inaugural: “a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement.” The less the government does, the less likely it is to interfere with the free exercise of religion.
That was the consensus view of the Founding. Recall that even Alexander Hamilton understood that the federal government did not have the police power—to regulate health, safety, and morals. Local and state governments had the power. That would enable the people to negotiate any necessary political settlement among competing goods—such as the demands of public health and safety and the rights of conscience. There is no Hobby Lobby case, no case against the Little Sisters of the Poor, or other like cases, absent the desire of some Americans to run our healthcare and health-insurance system by intrusive government fiat.
In the Founding era, and throughout the 19th century and into the 20th century, the prevailing view was that Americans were free, in civil society, to associate or not associate with anyone of their choosing and upon the terms they chose. As Tocqueville noted in Democracy in America, businesses no less than temperance societies were part of civil society. In today’s terms, both would be called non-governmental organizations, so that to coopt them for the government’s purposes is an intrusion upon a formerly more free civil society, under a government that is being neither wise nor frugal.
This perspective complicates Zuckert’s formulation of “freedom for religion” versus “freedom from religion.” It makes more sense to hold that “freedom for religion” would entail governmental enforcement of religious rites. By contrast, the free exercise of religion, as an extension of freedom of religion, would entail the right to live as one’s conscience dictates.
The Progressives believed that History had superseded Jefferson’s vision in this regard. Herbert Croly, in the Progressive Era, famously announced a desire to secure “Jeffersonian ends” with “Hamiltonian means.” Perhaps the ends and means cannot really be separated, though; and if not, that is one source of today’s problems. Perhaps Jefferson was right that only a very limited government, particularly at the federal level, could be reconciled with religious liberty.
And that is behind many of today’s problems. In addition, today’s governing elite have embraced what the New Dealer Thurman Arnold called a “religion of government” that is allied with their faith in Progress. Their belief in History and in a large, active, national government that runs civil society is, in their own minds, understood to be the objective, practical truth, and not merely one point of view, certainly not a sectarian point of view. The latter is exactly how it looks to the other side.
Hence arises the question I put at the outset, of religious liberty as a right to be enjoyed by groups or to be enjoyed by individuals, and why it is such a problem today. The people who own the Hobby Lobby stores are not trying to end the legal purchase of contraception, or of abortifacients. They are simply asking for the right to run their business in accord with their religious principles—to, as it were, cultivate their vines and fig trees as they see fit, with the liberty to contract with other free and equal citizens as employees. That is not the same thing as, for example, the Puritan effort to enforce elements of the Levitical code by law, or to exile Roger Williams for what were deemed to be his heresies. The owners of Hobby Lobby are asserting their right to the “free exercise” of religion, as the First Amendment formulates it, and are insisting that such exercise must allow them to conduct their business affairs in a manner in accord with their conscience.
Doing good works is, after all, an essential element of religious practice. It used to be that when people disagreed about what works are good, as Americans do in the case of abortion, contraception, and like cases, the classic American solution was to live and let live. The Obama administration does not like that solution, believing as it does that abortifacients are a good that all health insurance must provide. (There is even disagreement on the question of whether a pill that blocks the implantation of a fertilized egg is an “abortifacient.” According to the owners of Hobby Lobby, a fertilized egg deserves protection. According to others, pregnancy does not officially begin until implantation. Can science really answer such questions of definition? Or must the answers, by nature, turn upon premises that are best understood as “religious”?)
This controversy involves a different conception of “rights” than the one found in the Declaration. To say that the non-purchase of abortifacients/“emergency contraceptives” as part of employer-supplied medical coverage represents a violation of the “rights” of some of Hobby Lobby’s employees, is to accept the proposition that the funding of abortion services is a “right.” Few Americans would have accepted that view of the situation until quite recently.
Zuckert writes that “Laws with what we have come to call ‘valid secular purposes’ override religious practices to the contrary.” That is much too simple. General Washington may have thought that the Quaker refusal to take up arms was irrational. (If everyone acted that way, there would be no country, assuming, as Washington did, that wars would ever be part of man’s terrestrial history.) Washington also recognized that to force Quakers to take up arms was a violation of an essential right. The Founders, in other words, did not think that merely having a valid secular purpose was a sufficient justification for overriding sincere religious belief. And if the rights of conscience implied an exemption from military service when the very fate of the Union was on the line, how much more would the principle apply in lesser circumstances?
That a law has a “valid secular purpose” is a necessary but by no means sufficient condition for overriding the free exercise of religion. And this is important to keep in mind, especially as the federal government grows ever more involved in our daily lives, assuming the police power the Founders denied it had.
In short, when rights are goods provided by government (or by government mandate), they amount to a version of an establishment. How so? The decision as to what goods to provide, as more and more are provided, will inevitably touch a religious foundation. Is abortion right or wrong? Ditto “gay marriage”? What about the provision of healthcare in general? The right to go to a doctor is one thing, but to call the provision of doctors a “right” invokes a different definition of “rights,” one more compatible with George III’s understanding than Jefferson’s. The answers to these questions turn upon religious values. The Little Sisters of the Poor case grows from an effort on the part of the executive to read certain religious values into the health-insurance mandate.
That returns us to the question: Can the modern administrative state be reconciled with the First Amendment? Can Jeffersonian ends be achieved by Hamiltonian means? The proposition is doubtful.
 I explore this issue in my essay, “Who’s Afraid of Religious Liberty?”, Mosaic Magazine, August 1, 2016.