Concerning Religious Freedom

     Among the more alarming things the various Democrat candidates for the presidency have said, they’ve agreed that “religious freedom” must not be allowed to impede “minority rights.” Those terms have been used in such a tendentious manner that they positively demand a close examination: not of the clash that exists between them today, but of the reasons the Founding Fathers, and the men who formulated the First Amendment, proclaimed freedom of religion to be a principle of the newborn Republic.

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     The de facto impossibility of religious freedom in our time, and the misconceptions about religious freedom as enshrined in the First Amendment:

     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

     ...have a common foundation. That foundation is expressed by the words of the amendment itself:

1. Congress shall make no law...
2. Respecting an establishment of religion, (the “Establishment Clause”)
3. Or prohibiting the free exercise thereof. (the “Free Exercise Clause.”)

     The prohibition applied specifically to Congress, not to the legislatures of any subordinate government. The Founders might have felt this proscription to be unnecessary. Congress’s powers were so sharply limited by Article I that it might have seemed that such laws were already denied to it. Still, those who demanded an explicit set of guarantees for certain rights had to be placated, so there it is.

     As for an “establishment of religion,” that was concerned with taxation for the support of a particular church, in the fashion of the Church of England. Here too, it would not be surprising to learn that the Founders felt this guarantee to be redundant. Congress’s original powers of taxation would not have stretched to the establishment of a federal religion. Of course, the Sixteenth Amendment changed the situation enough to make such a thing Constitutionally possible except for the prohibition in the First Amendment, but it’s the original understanding that concerns me here.

     The final provision, “or prohibiting the free exercise thereof,” concerns the understanding of religion from the religions practiced in the Republic at that time. Virtually everyone in the country was a Christian of some denomination. There were a very few Jews and almost no members of any other sect. The ethical codes of those faiths were uniform, constructed around the Ten Commandments. Thus, they conformed to C. S. Lewis’s Law of General Benevolence: to wish all persons well and to do none harm. That understanding clearly would have caused the Founders to classify a creed such as militant Islam as not a religion. More to the point, there was no reason to believe that any lawmaking body would ever have cause to prohibit the exercise of one’s religious moral and ethical codes.

     In an environment of benevolent religions and tightly constrained governments, the freedom of religion guaranteed by Amendment I seemed an “of course” matter.

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     Today, the Free Exercise Clause is a nullity. America’s federal, state, county, and municipal legislatures operate as if unbound by Constitutional constraints, including that one. They make laws that compel and forbid without regard to their delegated powers and responsibilities. That has put them into conflict with the moral dictates of many religions, including all the ones that were represented in the Constitutional era U.S.

     Perhaps the first really famous conflict between federal power and the Free Exercise Clause arrived with the case of Valentine Y. Byler. Byler was an Old Order Amishman who refused to pay Social Security taxes on the grounds that it was “social insurance,” which his religion forbade. In 1961, the IRS seized two of his horses and sold them to cover his Social Security “arrears.” After two years of fighting this assertion of federal power to intrude on his religious beliefs, Byler eventually surrendered.

     That seemingly mild intrusion into religious liberty, which was founded on an assertion of an unlimited, unconditional power to tax for any reason or none, stirred considerable passion in its day. And that was before Congress started taxing to fund abortion mills and sex reassignment surgeries for transgender soldiers. Today, no religious conviction is regarded as proof against the federal government’s power to legislate and regulate however it likes – and to compel others to accept its decrees on pain of a fine, imprisonment, or death.

     But we still lack an established federal church, unless “anti-discrimination” or environmentalism be counted.

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     Religious freedom of any substance is incompatible with a body of law that goes beyond the Noachide Commandments. Either faith or the power of the state must prevail, while the other gives ground. As other commentators have said, what remains is freedom of worship: i.e., the right to attend the church of one’s choice, assuming local zoning ordinances will permit one within driving distance.

     Contemporary contretemps over compulsory service laws, such as those used to entangle Jack Phillips of Masterpiece Cakeshop and Sweet Cakes by Melissa, are clear evidence that whatever the First Amendment may say and our consciences might dictate, while we remain free to worship as we choose, we are not free to live according to our religious beliefs. Nor, in our era of government uber alles, is that likely to change any time soon.

     You would think that religious Americans could not fail to see the nature of the problem. You would imagine that having spotted it, they would rise in a body to demand a return to Constitutional fidelity. You would scoff at the notion that believing Christians and Jews would not only accept such intrusions but would continue to vote, in large numbers, for persons who propose to worsen them. You would be appalled to discover that the devotees of one religion are treated quite differently – that Muslim-run businesses are never compelled by law to please those who demand a service that contradicts the dictates of Islam.

     And you would be wrong.