There was once a dream that was America. Our early ancestors were willing to suffer great sacrifices, risking everything for a singular goal-freedom. Victims of spiritually oppressive European regimes endured perilous journeys to our shores with hearts full of liberty’s hope-fleeing discrimination, intolerance, persecution and violence.
Religious Freedom was once the paramount right in the American pantheon of civil liberties. Now, as Professor Smith accurately points out, religious freedom has fallen out of favor in the culture and the courts having been relegated to a “lesser liberty” status. It is regrettably forced to compete on an equal or lower footing with other rights including new, more recently fabricated, rights which are not explicitly embodied in our Constitution. These “new rights on the block,” if you will, are concoctions, not of the Creator whose judgments are transcendent and objective to us, but of the fallen, fallible, and subjective human imagination. The clearest examples of this are the emerging “sexual liberty” rights, which like a massive steamroller are crushing everything in their path, including religious freedom.
Over the past 60 years, a small but growing group of powerful cultural elites have effectively employed the media, the judiciary, and the coercive power of government to systematically suppress and remove religious freedom. Many welcome this social demotion of religious liberty. I do not. I submit, and our current history proves, that if we lose religious freedom, which includes the freedom of conscience, we undermine virtue and morality and erode the only sure foundation and transcendent and objective basis for all of our civil liberties such as the freedom speech (think speech free zones in Nevada), the freedom of the press (think prosecution of reporters), and the right to be free from unreasonable government searches and seizures (think NSA).
In other words, unless we comprehend and appreciate that our fundamental civil liberties are truly objective to us and independent of us, graced upon us by our benevolent and transcendent Creator, they can easily be immanently trampled upon and destroyed by the subjective biases, feelings, passions, preferences, whims and fancies of whomever happens to be in control of the government at the moment. I submit that every freedom loving citizen, whether you believe in God or not-yes even the atheist, should highly esteem and with passion join the good fight to promote and defend religious freedom. It is the fundamental civil right upon which all other civil liberties depend.
Many of our European ancestors came to America to flee religious persecution in Europe where, for centuries, when in control of the government, Protestants had been abusing Catholics, and Catholics had been abusing Protestants. Needless to say, religious establishments in European nations usually did to turn out very well.
In the American experience, freedom of religion was first applied in the colony of Maryland at its founding by Lord Baltimore, a Catholic, in the form of the 1649 Maryland Toleration Act. Protestant minister Roger Williams in the colony of Rhode Island, Thomas Hooker a minister in Connecticut, and William Penn, a New Jersey and Pennsylvania Quaker, promoted religious freedom in the colonies they led. They combined the democratic form of government, which had been developed by the Puritans and the Congregationalists in Massachusetts with religious freedom. These colonies became sanctuaries for persecuted religious minorities.
Williams, Hooker, and Penn were firmly convinced from the authority of the Holy Scriptures that freedom of conscience was the will of God. Williams believed that because faith is the free work of the Holy Spirit, it cannot be forced on a person. Some have proposed that religious freedom is the creation of John Locke (1632-1704), the puritan English philosopher. However, while Locke did write on the subject, he was greatly indebted for his formulation of it to the early American colonial leaders and his belief, based on scripture, that humans are created in God’s image.
Indeed, our founders universally believed that religion and virtue were the indispensable and only solid foundation for true freedom and liberty. Benjamin Rush asserted, “The only foundation for a useful education in a republic is to be laid in religion. Without this, there can be no virtue, and without virtue there can be no liberty.” John Adams, declared, “[I]t is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”
All change is not progress–I believe this is especially true when one surveys the decline of religious freedom in America. Our founders considered religion our first freedom, the bedrock upon which all other rights rest. There are profound connections between democracy, religious freedom, and other civil rights we cherish.
By “religious freedom,” I mean what James Madison meant when writing in the 1785 “Because we hold it for a fundamental and undeniable truth, that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”
I mean what Thomas Jefferson meant in the Declaration of Independence in 1776: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
The transcendent Creator, who is objective to us, grants our civil rights-not the state. As Sir William Blackstone wrote “The principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature.” Jefferson affirmed these rights flow from our being created in the imago Dei when writing in 1777:”Almighty God hath created the mind free…All attempts to influence it by temporal punishments or burthens…are a departure from the plan of the Holy Author of our religion…No man shall be compelled to frequent or support any religious worship or ministry or shall otherwise suffer on account of his religious opinions or belief, but all men shall be free to profess and by argument to maintain, their opinions in matters of religion.”
Today there is tremendous cultural pressure to stuff faith and conceal its expressions in one’s proverbial closet. Still the concept of religious liberty of our founders embodied a far broader and more robust idea of freedom than the narrow, meager, and spiritually starved “freedom of worship” promoted by the Obama administration. This anorexic proposition would presumably only include the right to believe and acknowledge God privately in your prayer closet or church, hidden from the public square.
Robust religious liberty, as conceived by our founders, included a vast array of beliefs and actions, including, but not limited to the right to believe, but also practice and express one’s religious faith–both privately and publicly. Indeed, Madison acknowledged in the Memorial and Remonstrance that religious freedom is an “unalienable” right. In other words, because it is a right given by the Creator, no man has the right to take it away.
So, when the U.S. Constitution’s First Amendment, ratified in 1789, prohibits the establishment of religion, it means that the government cannot use its taxing and spending powers to forcibly establish one state church or otherwise establish one religion over and against other religions (e.g., a National Presbyterian Church). And when the First Amendment states that congress shall make no law “prohibiting the free exercise” of religion, it means that the government may not, except in very limited circumstances, infringe upon or burden personal religious beliefs or expressions of those beliefs. The First Amendment was clearly not intended, nor should it be used, as a spiritually hostile battering ram to silence or cleanse public religious expression or squelch public religious practices, as some organizations, such as the Freedom From Religion Foundation, have suggested.
As one who has committed my life to advocate for and defend religious freedom, I am deeply concerned about its deteriorating condition in America over the past 60 years. As we have uncoupled our rights from their only secure, transcendent, objective source, a more robust experience of religious freedom is systematically being pushed out of our public life, including our hilltops, schools, churches, and even our military. As Dostoevsky wrote, “If God does not exist, then everything is permitted.” “Everything” may include the state sanctioned destruction of the rights of conscience and religious freedom. But my concern is not only that we are “losing our religion,” but also what the loss of our religious freedom may portend for the viability of other civil rights and, ultimately, for the survival of our democratic republic.
In conclusion, the pending demise of religious freedom ought not be celebrated but should rather be mourned. We often foolishly confuse social change with “progress.” But history teaches the brutal lesion that change is nearly equally likely to proceed in a negative or backwards direction-leading to the loss of freedom, the destruction of civil rights. That is why I invite you to join me and others in engaging in “the good fight” for the freedom of religion, not freedom from religion.
— by Dean R. Broyles, Esq.
Broyles is a constitutional attorney serving as the President of The National Center For Law & Policy (NCLP), an organization fighting to promote and defend religious freedom.
Copyright© The National Center For Law & Policy. Reprinted with permission.
Editor’s note: This column is based on a panel debate “Religion in the Public Square: Religious Freedom or Freedom From Religion” sponsored by the Department of Philosophy Values Institute at the University of San Diego on April 25, 2014. Dean R. Broyles, president and chief counsel for the National Center for Law and Policy, whose opening statement is summarized below, was joined by Steven D. Smith, Warren distinguished professor at the University of San Diego, and Dan Barker, co-president of the Freedom from Religion Foundation and an atheist.