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The main controversy over the Free Exercise of Religion clause of the First Amendment is how narrow or broad an interpretation is necessary. Here, the plain text of that clause is illuminating. The clause uses the word “exercise.” Today, as in the 1700s, the word infers action. In fact, that great “sacrosanct” Jefferson letter that permeates constitutional thought today specifically agrees with this idea in that prohibitions on the free exercise of religion extended only to legislative actions. The problem, however, is that Madison, not Jefferson, helped write the Bill of Rights and Madison had a broader view of the Free Exercise clause. The clause is a great affirmation of the importance of religion in American life.
We have to go back a little further in time to the period known as the Enlightenment, specifically the words of John Locke in this area. Much of Locke’s political thinking found its way into the philosophical justification for independence from Britain so his importance and the influence of his political thought should not be underestimated towards our fundamental political underpinnings. Locke asserted that the power of any civil government was confined to the care of this world while churches/religion had no jurisdiction in worldly matters. When conflicts occur, Locke would side with civil government. In a very real way, we can see where Jefferson’s thoughts evolved.
However, history again intervenes. Early America was more influenced by newer evangelical sects like the growing Baptist and Presbyterian sects. As Madison noted, and as I stated in a previous entry, religious minorities could overcome localized discrimination through political representation. In fact, that is exactly what happened in his particular case. It was the votes of these growing religious minorities in Virginia that sent Madison to Congress in the first place. Previous to that, their growing political clout had helped defeat taxes on all religious institutions in Virginia. As a point of fact, this view- different from that of Locke- asserted that religion is a matter of duty to God and must be obeyed to a greater degree than any law of man. In Congress, Madison often echoed these sentiments and it is doubtful that he was just playing politics and cowtowing to the constituency responsible for his election. This stood in direct conflict with Jefferson’s more narrow reading of a Free Exercise clause. Jefferson adopted the Enlightenment view expressed by Locke which tips the balance towards civil government. Hence, when the free exercise of religion conflicts with a civil government dictate, the religious practice must give way to the civil law. Conversely, Madison- the man who actually helped write the Bill of Rights- thought otherwise and believed that when in conflict, religious exemptions must prevail.
There is historical evidence for the practical effects of Madison’s view. By 1789, most state constitutions had provisions similar to the wording of what would become the free exercise clause, but they also allowed for exceptions to unfettered free exercise if that exercise interfered with the “public peace.” Hence, ritual human sacrifice would not be tolerated. When it came to civil laws, the states, despite actually having established religions, went out of their way to make exceptions respecting the free exercise of religion. For example, members of the Quaker sect were exempt from taking oaths. Likewise, they, like the Mennonites, were exempt from service in state militias. And there were other carve-outs respecting the religious beliefs and practices of other sects and emerging religions.
Today, most of the controversy is still rooted in the Madison/Jefferson dichotomy. Madison’s interpretation is broad, Jefferson’s narrow. In a previous posting, I argued against using a letter by Jefferson as justification for expressing constitutional law. Again, Thomas Jefferson was not present at the Constitutional convention in Philadelphia nor was he a member of Congress when the Bill of Rights were drafted. He was not a party to the debate. He was not intimately privy to the thoughts and understandings of those who actually were present for these momentous events. In short, reliance on his letter and his phrase about a “wall of separation between church and state” has no basis in constitutional history. I do not intend to denigrate the role of Thomas Jefferson in American history. He saw firsthand, as Ambassador to France, the possible horrors the entanglement of church and state can create in Europe and wanted, as the man who wrote the Declaration of Independence, to avoid that state of affairs in the newly formed Republic. However, should his words in a letter to a Baptist convention written thousands of miles away hold more sway in Constitutional interpretation than the actual words of the Bill of Rights and, more importantly, the actual practices in effect at the time that the actual writers and debaters had no problems with whatsoever?
Again, because so much is based on this letter as fact and because Liberals have so co-opted the phrase, it has led to all sorts of problems when it comes to the actual expressions of religious exercise. Until the middle of the 20th Century, the Free Exercise clause applied only to federal actions. Then, the Bill of Rights was incorporated into the 14th Amendment as concerns this clause and applied to states. Since then, most establishment clause litigation involves state and local laws and actions. To see how the differing views- that of Madison and that of Jefferson- play out in modern life, one need look no further than the recent controversy over contraceptive services in health care policies.
Under the Jeffersonian/Enlightenment formulation, where religion and civil government conflict, there must be a nod towards government. In this instance, should the government determine that the mandatory provision of contraceptive services in health care policies is in the best interests of the public, no matter who those policies are through (religious institutions included), the religious objection must give way to the governmental interest. Conversely, under the Madisonian/broader view, the government has no right interfering in the affairs or doctrine of any religious establishment and a government dictate to provide a service to which a religion is adamantly opposed clearly prohibits the free exercise of that religion. Under this same broad view, disallowing Moslems from wearing traditional head dresses, or Jews from wearing yamulkes in schools is discouraged. Clearly, the actions violate the free exercise of religion. An argument can be made that these rules in schools or the workplace or even the military are necessary to maintain order and discipline. But once that view is adopted, we are moving away from the original intent of the First Amendment and the Madisonian view and towards the Jeffersonian view, or a hybrid of the two which only creates a sea of confusion (and litigation).
In its first confrontation of the Free Exercise clause in 1879, the Court ruled on a federal law which banned polygamy in the territories. Then, they adopted the narrow view relying on that damn letter by Jefferson. Since then, however, they have adopted the broader, Madisonian view which has protected religiously motivated actions (proselytization, refusing to work on the sabbath, choosing education of children, even animal sacrificial rituals). Since it is now accepted that the clause protects not only beliefs but actions and conduct, the main points of litigation are whether the laws target religion itself for restriction, or whether the clause requires exemption from some generally applicable law.
By 1789, most state constitutions had similarly worded provisions. They also had provisions that such freedoms would not justify disturbances of the general peace. In effect, these provisions reflect the pro-exemption, broad interpretation of the Free Exercise Clause within reason. For example, no religion has the right to commit murder as part of their rituals or beliefs. For years, mandated exemptions were frowned upon, but recent practice has condoned the concept of exemptions. For example, Amish children are exempt from compulsory school attendance. But inconsistent application has created nothing but confusion. The perfect example is the lack of an exemption for certain Native Americans that used peyote in their religious practices. In effect, that decision (in 1990) set back religious freedom for all and created the morass that exists today.
A final consideration is the breadth of exemption. Amish children are exempt from compulsory schooling. But it is quite possible that a follower of Thoreau, who rejected traditional schooling for children, could claim a similar exemption. However, the original history is most important. If one remembers, the word “conscience” was deliberately deleted from the original drafts of the First Amendment and specific references were made towards “religion.” Obviously, the debate and the changes made reflect an emphasis not on deep moral conviction (that may spring from religion, but not necessarily) but to theistic-based beliefs. Hence, the free exercise of religion is guaranteed, not the free exercise of one’s conscience.
The bottom line is that Madison and the other framers of the Constitution and Bill of Rights were uniquely aware of the role religion played in the lives of Americans and they sought out a way to protect those rights. They could never have envisioned the complexity of the government as it exists today with laws and codes and regulations that impinge upon every aspect of human life in America from conception to death (and sometimes beyond that). However, the beauty of the First Amendment’s religion clauses is that they protected that which they deemed important to American life and government. As George Washington said in 1796 in his Farewell Address, we should reiterate those words today: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…The mere politician, equally with the pious man, ought to respect and cherish them.” How far we have drifted from those words.