âIt is true, we are not disposed to differ much, at present about religion; but when we are making a constitution . . . for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact.â1 Penned by the anonymous âFederal Farmerâ in the fall of 1787 during the debate over the ratification of the Constitution, these words were part of his argument that a bill of rights needed to be added to the Constitution.
What, however, did he and other early Americans mean by âthe free exercise of religionâ that they wanted to be protected by the Constitution? This book answers that question. In doing so, it also explains the original meaning of the two religion clauses of the First Amendment (added to the Constitution in 1791)ââCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereofââcommonly called the establishment and free exercise clauses. This book does this because, as it shows, both clauses were intended to protect the free exercise of religion. The original meaning of either of those clauses, therefore, is the same as the original meaning of âthe free exercise of religionâ that it was intended to guarantee or protect. The majority of the book, therefore, is devoted to showing how early Americans understood the free exercise of religion, especially as it was guaranteed in various state constitutions and laws.
The historical evidence on which this bookâs conclusions are based was examined in light of current issues relating to the meaning of the religion clausesâissues that have emerged in recent decades in Supreme Court opinions and the writings of constitutional law scholars. This was done because those early Americans responsible for the religion clausesâ being in the Constitution addressed these same issues, albeit some more and/or better than others. This book, therefore, sheds light on how the original understanding of religious freedom relates to current issues. It does not contend, however, that those issues should be settled on the basis of that original understanding. This is a work in constitutional history only.
1 Constitutional Issues Addressed
This book explains how early Americans answered four questions that have been raised in recent years either by the Supreme Court in deciding cases arising under the religion clauses of the First Amendment or by scholars commenting on its decisions. These questions pertain primarily to the meaning of the religion clauses; in contrast, early Americans addressed them on the basis of their understanding of the principle of the free exercise of religion. This, however, is not a problem because, as will be shown, there is no difference between the original meaning of the religion clauses and the original meaning of the free exercise of religion. Therefore, even if early Americans addressed these four questions on the basis of the latter, their answers apply to the original meaning of the religion clauses.
Question number one is, what kind of laws do the religion clauses prohibit. This question, in turn, can be divided into two sub-questions: (1) what kind of government-caused effect on religion do the clauses prohibit, and (2) how much of that effect do they prohibit. The first sub-question, in turn, can be restated as: do the religion clauses prohibit aid to religion, harm to religion, coercion of religion, or all of the above? The fact that there are two religion clausesâthe first forbidding laws ârespecting an establishment of religionâ and the second laws âprohibiting the free exercise thereofââhas made this a difficult question to answer. Do the two clauses have different meanings or the same meaning?
How might the two clauses have different meanings? Some scholars say that the establishment clause prohibits aid (to religion in general, a particular religion, or persons/groups because of their religion), whereas the free exercise clause prohibits harm to the same.2 The Supreme Court, however, appears to have rejected this way of distinguishing between the two clauses, for it has said that âto withstand the strictures of the Establishment Clause,â a law must have âa secular legislative purpose and a primary effect that neither advances nor inhibits religion.â3 Given this interpretation, the establishment clause prohibits both aiding and harming religion, and the question is raised whether the free exercise clause is needed.
In an attempt to avoid concluding that the two religion clauses are redundant (and the free exercise clause unnecessary), the Court has distinguished between the two clauses in this way: the free exercise clause prohibits only coercive laws, whereas the establishment clause prohibits non-coercive as well as coercive laws that advance or harm religion.4 Such an interpretation, however, fails to justify the existence of the free exercise clause, because according to it the establishment clause itself prohibits coercive laws. The Court, moreover, has failed to explain why the two clauses need to be distinguished. Some scholars, however, have argued that surely the framers of the First Amendment would not have drafted redundant and, thus, unnecessary clauses.5
A third way of interpreting the two religion clauses that give them different meanings is to say that the establishment clause protects only statesâ rights, whereas the free exercise clause protects individualsâ rights. In other words, the former clause was intended to prevent Congress from legislating against establishments of religion that still existed to some extent in a few states, and the free exercise clause was intended to prevent it from infringing on individualsâ freedom of religion. Some scholars6 and at least one Supreme Court Justice7 appear to subscribe to this way of understanding the two religion clauses. Other, probably most, scholars reject it.8
In contrast to the preceding interpretations, some scholars and Supreme Court justices have interpreted the two clauses so that they have the same meaning and are, thus, redundant. First, there is the contention that both clauses prohibit only laws (affecting religion) that are coercive in nature, regardless of whether they harm or aid religion.9 Such an interpretation of the religion clauses necessarily raises the question: what constitutes coercion?10 What about laws that discriminate in favor of one religion over others: are they coercive in nature? Michael McConnell says that they are because they are âstructured to influence or distort religious choice.â11 If, however, âinfluenceâ equals âcoercion,â then what kind of law affecting religion does not involve coercion?
Perhaps to avoid such confusion, another scholar, Thomas G. West, argues that it is not coercion, but âinjury because of oneâs religionâ that is prohibited by both clauses. According to his interpretation, government aid alone cannot violate religious freedom. West writes, âNo one is âmolestedâ or injured when taxed to support a religious teaching he does not agree with . . . . There is no conflict between âfree exerciseâ and âgovernment support,â as long as the support in question does not penalize individuals for adopting, or failing to adopt, a particular mode of worship.â12 Given this interpretation of the religion clauses, both clauses prohibit only harm to religion or to persons because of their religious beliefs/practices.
There is a third interpretation of the two religion clauses that makes them redundant. According to it, both were intended to protect statesâ rights generally and, more specifically, the remnants of religious establishments that remained in a few states. In other words, both clauses deprive the national government of all authority over religious matters, but not in order to protect the religious liberty of individuals and churches, but to enable the states to legislate on religious matters as they choose. According to this interpretation, the two clauses have no substantive or normative meaning, that is, they say nothing about what the relationship between government and religion should be. They simply uphold the principle of federalism. Although a number of scholars subscribe to this interpretation,13 there is very little, if any, historical evidence to support it.14
This leads to the fourth and final way of interpreting both religion clauses whereby they have the same meaning and are, thus, redundant: they were intended to deny the national government jurisdiction over religion, that is, religious beliefs and practices. This interpretation is quite similar to the previous one in its effect, but it differs from it in that it claims the national government was denied jurisdiction over religion in order to protect a natural rightânot statesâ rights. Both clauses were intended to protect the free exercise of religion, by prohibiting laws pertaining primarily to religion, that is, laws like those associated with traditional establishments of religion. According to this interpretation, the clauses prohibit laws directly aiding or harming religion, a particular religion, a religious belief/expression/practice, or persons/groups because of their religion.15
This leads to the second sub-question stated earlier: regardless of what kind of government involvement with religion is prohibited, how much of it is prohibited by the religion clauses? If they do not prohibit all aid or harm to religious individuals, institutions, and practic...