Taking Back Our Stolen History
Religious Freedom
Religious Freedom

Religious Freedom

the right of all persons to believe, speak, and act – individually and in community with others, in private and in public – in accord with their understanding of ultimate truth. The American Founders understood the importance of religion for human, social, and political flourishing. That’s why they styled religious freedom – that is, the freedom of all to exercise religion – as the first freedom. They were convinced religious freedom was necessary for the well-being of citizens, for the common good, and for public virtue without which they believed the new Republic would fail. Their view might be accurately called free exercise equality.

Until a few years ago, the vast majority of Americans supported the Founders’ understanding of religious liberty. Consider, for example, the Religious Freedom Restoration Act and International Religious Freedom Act. During the 1990s both passed with overwhelming, bipartisan support in Congress and were signed by President Clinton. Americans would sometimes disagree over how to apply religious freedom in particular cases, but they generally understood it to be our first freedom. With the Founders, they believed it to be a building block for all other fundamental freedoms, indispensable to the common good, and a source of protection for everyone.

Those days are gone.

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In 2016 the chairman of the U.S. Commission on Civil Rights, created by Congress to protect the civil rights of all Americans, issued the following statement[1]: “[t]he phrases ‘religious liberty’ and ‘religious freedom’ [are…] code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, [and] Christian supremacy….”

This dangerous view, which continues to spread, is highly destructive of the American commitment to freedom and equality and demands a sustained effort to recover the true meaning and value of religious freedom. In other words, it demands nothing short of the recovery and realization of free exercise equality, a core feature of the American constitutional settlement.

What is Religion?

Religion is, first and foremost, the human search for a greater-than-human source of being and ultimate meaning. “Religion is the effort of individuals and communities to understand, to express, and to seek harmony with a transcendent reality of such importance that they feel compelled to organize their lives around their understanding of it…” Most people by their nature seek answers to questions that seem to be in our DNA. For example, is there something or someone to which or to whom I owe my being? If so, how should I order my life in light of that discovery? Why is there suffering? Is there life after death? If so, does my behavior in this life affect my fate after death?

Second, most people who believe they have discovered religious truths join with others of like mind and spirit. Accordingly, although it is deeply personal, religion is also an organized, shared set of beliefs and practices that define a religious community, and which are lived and expressed in the public life of the society in which that community is situated.

What is Religious Freedom?

A Fundamental Right

Religious freedom is a fundamental right that is guaranteed in the First Amendment of the United States Constitution. It is the equal right of all human beings and all religious communities to the free exercise of religion. Given its profound importance to the founding of America, and to human flourishing, it is a capacious right – i.e. universal, broad, and deep – though it is not absolute. The United States Constitution, and the legal foundation of any rightly ordered political community, carries a presumption in favor of religious freedom, and the government must bear the burden of overcoming that presumption.

An Individual Right

Religious liberty includes the right to believe, or not to believe, in religious truths. There is no hint of coercion in the American understanding of religious freedom, i.e. that one must believe. Coercion is alien to the American treatment of religion. If one does not believe, one’s rights are fully protected under the Constitution’s guarantee of free speech, expression, and assembly.

But if one does believe, such a person has the right to order his or her life in accord with religious truths, without undue coercion from any human agent, especially government, and to do so in community with others.

An Institutional Right

Religious liberty therefore includes the rights of churches, synagogues, mosques, temples, and other houses of worship not only to exist, but also to flourish. Given the importance of religion in the founding, houses of worship have historically been given privileges, such as tax exemptions, that encourage their building and their growth.

Religious freedom also includes the right of individuals and communities to create and operate religious institutions such as homes for the poor, the aged, and the dying; medical clinics and hospitals; primary and secondary schools; colleges and universities; services for immigrants; soup kitchens; food pantries; adoption and foster care agencies; drug rehabilitation centers, and the like. Without such private religious institutions, which generally provide services for all of us, American civil society would be a mere shadow of what it is today.

Religious liberty also includes the rights of faith-based businesses to operate according to the fundamental beliefs of their owners. For-profit businesses are also subject to regulation by governments, and in recent years conflicts have arisen between the rights of customers and those of faith-based business owners.

These conflicts have raised several questions, especially whether such business owners should be coerced to provide their services to same-sex couples for their wedding ceremonies. In general, coercion should not be applied in such matters, particularly when the services sought are easily available from other businesses willing to provide them. Unfortunately, some state governments and political groups have sought to coerce such businesses into financial ruin or to demonize them as haters and bigots. Whatever one’s views on same-sex marriage, these methods are bad for religious freedom and bad for America.

A Private and Public Right

Finally, religious freedom includes the right of religious individuals, institutions, and communities to express religious truths in their private lives, and to bring those truths into political life through their respective claims about justice, peace, equality, and freedom, and to seek the agreement of their fellow citizens on a basis equal to all others in society. This dimension of religious freedom is captured in the phrase: free exercise equality.

A Capacious but Limited Right

The limits on religious freedom are, as indicated in the discussion of same-sex marriage, a source of growing disagreement in America. But some limits are clear. Religious freedom does not provide any protection for violence or coercion in the name of religion. Nor can any religion seek a monopoly through the law, which is why the Founders prohibited a federal establishment of religion in the First Amendment. State establishments continued to exist, but disappeared by the 1830s as states gradually accepted the Founders’ premise: state control of religion, and the coercion of conscience that inevitably results, is bad for religion and therefore bad for America.

Beyond America’s Shores: the Stakes Are High

The world is experiencing a growing global crisis of religious freedom. Violent religious persecution, severe government restrictions, and rising social hostilities challenge religious freedom in every region of the world.

The global crisis makes it all the more imperative that the United States retrieve its historic understanding of the importance of religious freedom for the affirmation of human dignity, and for the flourishing of human beings and the societies in which they live. If the precious right of religious freedom is damaged or lost in America, where else can it be retrieved? What country at this point in history will defend the right of religious liberty for everyone, everywhere, if America does not?

The Role of Religion in the Founding Fathers’ Constitutional Formula

Americans of the twentieth century often fail to realize the supreme importance which the Founding Fathers originally attached to the role of religion in the unique experiment which they hoped would emerge as the first civilization of a free people in modern times. Many [page 676] Americans also fail to realize that the Founders felt the role of religion would be as important in our own day as it was in theirs.

In 1787, the very year the Constitution was written by the Convention and approved by Congress, that same body of Congress passed the famous Northwest Ordinance. In it they outlawed slavery in the Northwest Territory. They also enunciated the basic rights of citizens in language similar to that which was later incorporated in the Bill of Rights. And they emphasized the essential need to teach religion and morality in the schools. Here is the way they said it:

“Article 3: Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” 3

Notice that formal education was to include among its teaching responsibilities these three important subjects:

  1. Religion, which might be defined as “a fundamental system of beliefs concerning man’s origin and relationship to the Creator, the cosmic universe, and his relationship with his fellowmen.”
  2. Morality, which may be described as “a standard of behavior distinguishing right from wrong.”
  3. Knowledge, which is “an intellectual awareness and understanding of established facts relating to any field of human experience or inquiry, i.e., history, geography, science, etc.” 4

We also notice that “religion and morality” were not required by the Founders as merely an intellectual exercise, but they positively declared their conviction that these were essential ingredients needed for “good government and the happiness of mankind.”

Washington Describes the Founders’ Position

The position set forth in the Northwest Ordinance was reemphasized by President George Washington in his Farewell Address. He wrote:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports….

“And let us with caution indulge the supposition that morality can be maintained without religion…. Reason and experience both forbid us to expect that national morality can prevail to the exclusion of religious principle.

“It is substantially true that virtue or morality is a necessary spring of popular government.” 5

The Teaching of Religion in Schools Restricted to Universal Fundamentals

Having established that “religion” is the foundation of morality and that both are essential to “good government and the happiness of mankind,” the Founders then set about to exclude the creeds and biases or dissensions of individual denominations so as to make the teaching of religion a unifying cultural adhesive rather than a devisive apparatus.

Jefferson wrote a bill for the “Establishing of Elementary Schools” in Virginia and made this point clear by stating:

“No religious reading, instruction or exercise shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination.” 6

Obviously, under such restrictions the only religious tenets to be taught in public schools would have to be those which were universally accepted by all faiths and completely fundamental to their premises.

Franklin Describes the Five Fundamentals of “All Sound Religions”

Several of the Founders have left us with a description of their basic religious beliefs, and Benjamin Franklin summarized those which he felt were the “fundamental points in all sound religion.” This is the way he said it in a letter to Ezra Stiles, president of Yale University:

“Here is my creed. I believe in one God, the Creator of the universe. That he governs it by his Providence. That he ought to be worshipped. That the most acceptable service we render to him is in doing good to his other children. That the soul of man is immortal, and will be treated with justice in another life respecting its conduct in this. These I take to be the fundamental points in all sound religion.” 7

The “Fundamental Points” to Be Taught in the Schools

The five points of fundamental religious belief which are to be found in all of the principal religions of the world are those expressed or implied in Franklin’s statement:

  1. Recognition and worship of a Creator who made all thing
  2. That the Creator has revealed a moral code of behavior for happy living which distinguishes right from wrong.
  3. That the Creator holds mankind responsible for the way they treat each other
  4. That all mankind live beyond this life.
  5. That in the next life individuals are judged for their conduct in this one.

All five of these tenets run through practically all of the Founders’ writings. These are the beliefs which the Founders sometimes referred to as the “religion of America,” and they felt these fundamentals were so important in providing “good government and the happiness of mankind” that they wanted them taught in the public schools along with morality and knowledge.

Statements of the Founders Concerning These Principles

Samuel Adams said these basic beliefs which constitute “the religion of America [are] the religion of all mankind.” 8 In other words, these fundamental beliefs belong to all world faiths and could therefore be taught without being offensive to any “sect or denomination,” as indicated in the Virginia bill establishing elementary schools.

John Adams called these tenets the “general principles” on which the American civilization had been founded. 9

Thomas Jefferson called these basic beliefs the principles “in which God has united us all.” 10

From these statements it is obvious how significantly the Founders looked upon the fundamental precepts of religion and morality as the cornerstones of a free government. This gives additional importance to the warning of Washington, previously mentioned, when he said: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” 11

Washington issued this solemn warning because in France, shortly before Washington wrote his Farewell Address (1796), the promoters of atheism and amorality had seized control and turned the French Revolution into a shocking bloodbath of wild excesses and violence. Washington never wanted anything like [page 678] that to happen in the United States. Therefore he had said: “In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness [religion and morality].” 12

Alexis de Tocqueville Discovers the Importance of Religion in America

When Alexis de Tocqueville visited the United States in 1831 he became so impressed with what he saw that he went home and wrote Democracy in America, one of the most definitive studies on the American culture and constitutional system that had been published up to that time. Concerning religion in America, de Tocqueville said:

“On my arrival in the United States the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more I perceived the great political consequences resulting from this new state of things.” 13

He described the situation as follows:

“Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions; … I do not know whether all Americans have a sincere faith in their religion — for who can search the human heart? — but I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a c]ass of citizens or to a party, but it belongs to the whole nation and to every rank of society.” 14

European Philosophers Turned Out to Be Wrong

In Europe it had been popular to teach that religion and liberty were inimical to each other. De Tocqueville saw the opposite happening in America. He wrote:

“The philosophers of the eighteenth century explained in a very simple manner the gradual decay of religious faith. Religious zeal, said they, must necessarily fail the more generally liberty is established and knowledge diffused. Unfortunately the facts by no means accord with their theory. There are certain populations in Europe whose unbelief is only equaled by their ignorance and debasement; while in America, one of the freest and most enlightened nations in the world, the people fulfill with fervor all the outward duties of religion.” 15

De Tocqueville Describes the Role of Religion in the Schools

De Tocqueville found that the schools, especially in New England, incorporated the basic tenets of religion right along with history and political science in order to prepare the student for adult life. He wrote:

“In New England every citizen receives the elementary notions of human knowledge; he is taught, moreover, the doctrines and the evidences of his religion, the history of his country, and the leading features of the Constitution. In the states of Connecticut and Massachusetts, it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is a sort of phenomenon.” 16

De Tocqueville Describes the Role of the American Clergy

Alexis de Tocqueville saw a unique quality of cohesive strength emanating from the clergy of the various churches in America. After noting that all the clergy seemed anxious to maintain “separation of

church and state,” he nevertheless observed [page 679] that collectively they had a great influence on the morals and customs of public life. This indirectly reflected itself in formulating laws and, ultimately, in fixing the moral and political climate of the American commonwealth. As a result, he wrote:

“This led me to examine more attentively than I had hitherto done the station which the American clergy occupy in political society. I learned with surprise that they filled no public appointments; I did not see one of them in the administration, and they are not even represented in the legislative assemblies.” 17

How different this was from Europe, where the clergy belonged to a national church, subsidized by the government. He wrote:

“The unbelievers of Europe attack the Christians as their political opponents rather than as their religious adversaries; they hate the Christian religion as the opinion of a [political] party much more than as an error of belief; and they reject the clergy less because they are the representatives of the Deity than because they are the allies of government.” 18

In America, he noted, the clergy remain politically separated from the government but nevertheless provide a moral stability among the people which permits the government to prosper. In other words, there is a separation of church and state but not a separation of religion and state.

The Clergy Fuel the Flame of Freedom, Stress Morality, and Alert the Citizenry to Dangerous Trends

The role of the churches to perpetuate the social and political culture of the United States provoked the following comment from de Tocqueville:

“The Americans combine the notions of Christianity and of liberty so intimately in their minds that it is impossible to make them conceive the one without the other….

“I have known of societies formed by Americans to send out ministers of the Gospel into the new Western states, to found schools and church there, lest religion should be allowed to die away in those remote settlements, and the rising states be less fitted to enjoy free institutions than the people from whom they came.” 19

De Tocqueville discovered that while clergymen felt it would be demeaning to their profession to become involved in partisan politics, they nevertheless believed implicitly in their duty to keep religious principles and moral values flowing out to the people as the best safeguard for America’s freedom and political security.

In one of de Tocqueville’s most frequently quoted passages, he wrote:

“I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies, and it was not there; in her rich mines and her vast world commerce, and it was not there. Not until I went to the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good and if America ever ceases to be good, America will cease to be great.” 20

The Founders’ Campaign for Equality of All Religions

One of the most remarkable efforts of the American Founders was their attempt to do something no other nation had ever successfully achieved –provide legal equality for all religions, both Christian [page 680] and non-Christian.

Jefferson and Madison were undoubtedly the foremost among the Founders in pushing through the first “freedom of religion” statutes in Virginia.

Jefferson sought to disestablish the official church of Virginia in 1776, but this effort was not completely successful until ten years later.

Meanwhile, in 1784, Patrick Henry was so enthusiastic about strengthening the whole spectrum of Christian churches that he introduced a bill “Establishing a Provision for Teachers of the Christian Religion.”

It was the intention of this bill to allow each taxpayer to designate “to what society of Christians” his money would go. The funds collected by this means were to make “provision for a minister or teacher of the Gospel … or the providing of places of divine worship [for that denomination], and to none other use whatever.” 21

Madison immediately reacted with his famous Memorial and Remonstrances, in which he proclaimed with the greatest possible energy the principle that the state government should not prefer one religion over another.

Equality of religions was the desired goal. He wrote:

“Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects? … The bill violates that equality which ought to be the basis of every law.” 22

Why the Founders Wanted the Federal Government Excluded from All Problems Relating to Religion and Churches

The Supreme Court has stated on numerous occasions that, to most people, freedom of religion is the most precious of all the inalienable rights, next to life itself. When the United States was founded, there were many Americans who were not enjoying freedom of religion to the fullest possible extent. At least seven of the states had officially established religions or denominations at the time the Constitution was adopted.

These included:

  • Connecticut (Congregational Church)
  • New Hampshire (Protestant faith)
  • Delaware (Christian faith)
  • New Jersey (Protestant faith)
  • Maryland (Christian faith)
  • South Carolina (Protestant faith)
  • Massachusetts (Congregational Church) 23

Under these circumstances the Founders felt it would have been catastrophic, and might have precipitated civil strife, if the federal government had tried to establish a national policy on religion or disestablish the denominations which the states had adopted.

Nevertheless, the Founders who were examining this problem were anxious to eventually see complete freedom of all faiths and an equality of all religions, both Christian and non-Christian. How could this be accomplished without stirring up civil strife?

Justice Story Describes the Founders’ Solution

In his famous Commentaries on the Constitution, Justice Joseph Story of the Supreme Court pointed out why the Founders, as well as the states themselves, felt the federal government should be absolutely excluded from any authority in the field of settling questions on religion. He explained:

“In some of the states, Episcopalians constituted the predominant sect; in others, Presbyterians; in others, Congregationalists; [page 681] in others, Quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus the whole power over the subject of religion is left exclusive to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” 24

This is why the First Amendment of the Constitution provides that “Congress shall make NO law respecting an establishment of religion or prohibiting the free exercise thereof.” (Emphasis added.)

Jefferson and Madison Emphasize the Intent of the Founders

It is clear from the writings of the Founders as well as the Commentaries of Justice Story that the First Amendment was designed to eliminate forever the interference of the federal government in any religious matters within the various states. As Madison stated during the Virginia ratifying convention: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.” 25

Jefferson took an identical position when he wrote the Kentucky Resolutions of 1798: “It is true, as a general principle, … that no power over the freedom of religion, freedom of speech, or freedom of the press, [is] delegated to the United States by the Constitution…. All lawful powers respecting the same did of right remain, and were reserved to the states, or to the people.” 26

The Supreme Court, As Well As Congress, Excluded from Jurisdiction over Religion

In the Kentucky Resolutions, Thomas Jefferson also made it clear that the federal judicial system was likewise prohibited from intermeddling with religious matters within the states. He wrote:

“Special provision has been made by one of the amendments to the Constitution, which expressly declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, … ‘thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violates either throws down the sanctuary which covers the others; and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.”

Footnote references for pp. 675-681 of The Making of America

  • 1. The chairman’s statement is found on page 29 of the Commission’s report, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties, September 2016, https://www.usccr.gov/pubs/docs/Peaceful-Coexistence-09-07-16.PDF.
  • 3. Adler et al., The Annals of America, 3:194-95
  • 4. W. Cleon Skousen, The Five Thousand Year Leap: Twenty-eight Ideas That changed the World (Salt Lake City: Freemen Institute, 1981), p. 76.
  • 5. Adler et al., The Annals of America, 3:612.
  • 6. John William Randolph, ed., Early History of the University of Virginia, as Contained in the Letters of Thomas Jefferson and Joseph C. Cabell (Richmond: 1856), pp. 96-97.
  • 7. Smyth, The Writings of Benjamin Franklin, 10:84.
  • 8. Wells, The Life and Public Services of Samuel Adams, 3:23.
  • 9. See Bergh, 13:290-94.
  • 10. Ibid., 14:198.
  • 11. Adler et al., The Annals of America, 3:612
  • 12. Ibid.
  • 13 Tocqueville, Democracy in America, 1:319.
  • 14. Ibid,. p. 316.
  • 15. Ibid., p. 319.
  • 16. Ibid., p. 327.
  • 17. Ibid., p. 320.
  • 18. Ibid., p. 325; emphasis added.
  • 19. Ibid., p. 317.
  • 20. Quoted in Ezra Taft Benson, God, Family, Country: Our Three Great Loyalties (Salt Lake City: Deseret Book Company, 1975), p. 360.
  • 21. Quoted in Everson v. Board of Education. 330 U.S. 1, 72, 94.
  • 22. William C. Rives and Philip R. Fendall, eds., Letters and Other Writing of James Madison, 4 vols. (Philadelphia: J.B. Lippincott, 1865), 1:163-64.
  • 23. C.B. Kruse, Jr., “The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment.” Washburn Law Journal 2 (Winter 1962): 65, 94-107.
  • 24. Joseph Story, Commentaries on the Constitution of the United States. 3D ed., 2 vols. (Boston: Little, Brown and Company, 1858) 2:6666-67; emphasis added.
  • 25. Elliot, 3:330.
  • 26. Adler et al., The Annals of America, 4:63.
  • 27. Ibid; emphasis added.



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