Religious Liberties
America was founded on the principle that all U.S. citizens possess an inherent right to freely worship God without government influence, external intervention, or the advocation of a denominational theocracy. The national government cannot overrule this right, per the U.S. Constitution’s Supremacy Clause (U.S. Const. art. VI. cl. 2), whereby the Constitution declares itself to be, “the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” James Madison wrote in Federalist No. 10 that “we behold a republican remedy for the diseases most incident to republican government;” and in Federalist No. 51 that “in a free government, the security for civil rights must be the same as that for religious rights.” The Supreme Court has avoided producing a definition of “religion” in any of its rulings; Judicial effort to historically define religion had “not been in First Amendment cases, but rather in decisions concerning the scope of a religious exemption to the Selective Service Act, which authorized the military draft,” (Chemerinsky, E., p. 1724, 1725). Black’s Law Dictionary defines “religion” as a “system of faith and worship usu. involving belief in a supreme being and usu. containing a moral or ethical code; esp., such a system recognized and practiced by a particular church, sect, or denomination,” (Garner, B. A. p. 1545).
America’s Founders devised the U.S. Constitution during its ratification to incorporate secular ideology; Constitutional Originalists must submit that a ruling in favor of national government regulation of same-sex marriage reveals the functionality of our Constitutional Republic over two hundred years later, despite passing unenumerated rights using loose constructionism and implied rights. The Supreme Court is tasked with simultaneously enacting both the Establishment Clause, against national religion; and the Free Exercise Clause, recognizing religious exemptions in the name of religious liberty, (U.S. Const. amend I, cl. 1). The Supreme Court’s impartiality can be seen in rulings such as 303 Creative vs. Elenis (2023), where Christian interests again prevailed against that of provisional cultural accommodation; in Engel v. Vitale, 370 U.S. 421 (1962), the Court ruled against holding prayer in public schools ruling, that, “[t]he state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion,” (Oyez).
The Constitution’s First Amendment Establishment Clause also reserves the right for all Americans to worship freely, no matter their locality; this clause equally applies to members of Congress to include legislative prayer, as practiced since the nation’s founding; the Supreme Court’s ruling in Town of Greece v. Galloway, 572 U.S. 565 (2014) confirmed this, thereby displaying a modern reverence for the Christian doctrine within America’s Constitution (Oyez). Similarly, the Supreme Court determined in Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) that sincerely held religious beliefs are protected under the Free Exercise Clause, even if the Court determines the individual is acting incompatibly with their religious doctrine; the Supreme Court concurring against judicial theology, ruled that, “Courts are not arbiters of scriptural interpretation.” In Walz v. Tax Comm’n of the City of New York, 397 US 664 (1970), the Court cited "’benevolent neutrality’ toward churches and religions was ‘deeply embedded in the fabric of our national life,’” (Oyez).
America since its origin has remained a nation founded on diverse ideas and conflicting political theories yet bound by unanimous freedom. Modern accommodation laws demand continuous reorientation of compliance to culture, thereby many U.S. citizens claim that it remains impossible to legislate morality. American Founding Father Gouverneur Morris wrote that, “[i]f it be a sovereign people, it is accountable, like every other sovereign, to the everlasting and omnipotent God,” (Morris, G., p. 634). Conversely, inherent natural rights have historically remained sovereign, and unregulated by government beyond rulings of the Supreme Court that declare what the law is. The history of the Supreme Court has shown to acknowledge that Constitutionally protected religious accommodations hold legal precedence when disputed over State laws. Edwin Chemerinsky; Dean and Distinguished Professor at Irvine School of Law; notes, that the Supreme Court ruled in United States v. Ballard, 322 U.S. 78 (1944), “that the judiciary can determine only whether they are sincerely held views, not whether they are true are false,” Chemerinsky adding that “in Braunfeld v. Brown, 366 U.S. 599, 603, (1961), Chief Justice Warren declared that “[t]he freedom to hold religious beliefs and opinions is absolute,” (Chemerinsky, E. et al., p. 1728, 1731). The Supreme Court ruled in Reynolds v. United States, 98 U.S. 145 (1878), that the law says that while U.S. citizens are free to believe anything they would like, their actions remain bound to the law. In this 1878 case, the practice of polygamy was prohibited, but not the belief in one conducting such a lifestyle.
Apart from the States, Christian persecution has maintained consistent notoriety since the resurrection of Jesus Christ. Darrell L. Bock, Senior Research Professor at Dallas Theological Seminary, indicates the significance of strict Judicial interpretation, writing that “Jesus shows how he handled legal questions and did so with a scriptural emphasis. Jesus’s reading of the law shows his authority over it,” (Bock, D., p.139). Secular Coalition for America dissenting from strict constructionism, writes of the Establishment Clause, that “[t]he separation of religious and government is the best guarantee of freedom for people of all faiths and no faith.” Thomas Jefferson wrote a letter to David Hartley from Paris on July 2nd, 1787, warning of foreseeable perils in self-governance, Jefferson declared; “I have no fear, but that the result of our experiment will be, that men may be trusted to govern themselves without a master,” (Jefferson, T., p. 2274).
The Supreme Court’s Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York (2020) revealed that the State’s attempts to invoke unconstitutional laws, (i.e. prohibiting churches from holding service during a pandemic), remain superseded by the authority of the U.S. Constitution’s Supremacy Clause, (U.S. Const. art. IV, cl. 2.). According to Historian Mark David Hall, “State civil rights commissions have been similarly dismissive of religious liberty concerns, and some have been downright hostile to people of faith.” Politicians like Andrew Cuomo, alongside special interest groups, see personal faith as an opportunity to encourage the exercise of judicial activism. The Supreme Court’s decisions reveal that despite critical opposition of the States, the federal government’s Judicial Branch continues to be bound by the U.S. Constitution as an authority to State interests; when it comes to religious liberties, the Supremacy Clause ensures the protection of Christian doctrine, religious exemptions, and freedom of worship; but does not prevent continued attacks from various institutions, nor the State, from occurring.
In Obergefell v. Hodges 576 US _ (2015) “[g]roups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee,” (Oyez). The Supreme Court’s ruling of Obergefell v. Hodges 576 US _ (2015) abandoned its position of originalism, reinterpreting the Constitutional Amendments under Loose Constructionism. Instead of Congress codifying new laws or voting to pass an amendment as the public demand for women’s rights facilitated the creation of the 19th Amendment, same-sex couples reinterpreted the Amendments that had been ratified to abolish slavery. The Court ruled that “Under the Fourteenth Amendment of the U.S. Constitution, all states must license a marriage between two people of the same sex and recognize such a marriage if it was lawfully licensed and performed in another state,” deeming that the concept of marriage “offers unique fulfillment to those who find meaning in the secular realm,” (Justia).
The Supreme Court ruled in favor of same-sex marriage in all jurisdictions, stating that marriage was a fundamental right; the United States became the 23rd country to support same-sex marriages, out of 195 officially recognized countries worldwide. Advocates for same-sex marriage proposed that the concept of marriage predates government; it is the purview of the people under the Constitution’s Establishment Clause (U.S. Const. amend. I. cl. 1) to reject authoritative federal intervention, preventing theocracy, (Rom 14:1, 13). Concurring opinions cited the ruling of Poe v. Ullman, 367 U.S. 497 (1961) defining that, “Due process has not been reduced to any formula; its content cannot be determined by reference to any code.” Justice Harlan dissented, writing that;
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, ‘has not been reduced to any formula.’ Poe v. Ullman, 367 U. S. 497, 542 (1961). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.
Dissenting Opinions included Justices Alito, Scalia, and Thomas, who stated that there existed no Constitutional basis to prevent States from ratifying their own marriage policy; the definition of marriage was not something to be determined by the courts. The dissenting Supreme Court Justices used an accommodation approach, that it is a Christian civic duty to stand against sin, and support laws that align with Biblical doctrine, (1 Cor 6:9-11). Justice Alito dissented, writing in his opinion that, “its not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.” Justice Alito added that same-sex marriage was not “deeply rooted in this Nation’s history and tradition,’” as this criterion was established in Washington v. Glucksberg, 521 U. S. 701 –721 (1997). Anti-Federalist Founding Father Patrick Henry foresaw the expansion of national government, writing in 1788 that “government is no more than a choice among evils,” (Elson, J.M., p. 125).
Masterpiece Cake Shop v. Colorado Civil Rights Commission 584 US _ (2018) is an example of artificial collective rights usurping natural individual sovereignty. In July 2012, Jack C. Phillips, Christian owner of Masterpiece Cakeshop in Lakewood, CO, was asked to design a cake for same-sex marriage between Charlie Craig and David Mullins. Phillips revealed that his business was itself his personal form of worship to God built on his faith, therefore he needed to decline in making the cake in support of the same-sex wedding. In response, Craig and Mullins filed charges against the baker, resulting in the case’s ascension to the Supreme Court. This case proposes the question of whether Colorado’s public accommodation laws supersede the individual religious beliefs of its citizens; should Christians, and others with sincerely held religious beliefs be forced to harm their connection with God, to entertain the depravity of an immoral minority? Should a Christian with a sincerely held belief that their actions are to serve God, decline to serve those with ideologies against their doctrine, inherently dividing those made in the image of God, instead of showing love to all sinners, without judgment as did Christ?
The Supreme Court concluded in a 7-2 decision in favor of Masterpiece Cake Shop, individual sovereignty, and the authority of Christian doctrine; the Court concluded that the Colorado Civil Rights Commission’s conduct had violated Jack Phillip’s First Amendment Free Exercise Clause, (Oyez). Americans hold inherent liberties including the Christian right to exercise faith against persecutive opposition, no matter the beliefs of those critical to religion, (Mat. 5:10, Gal. 5:1).
Dissenting opinions included Justices Ginsburg and Sotomayor, who both claimed that the Commission’s comments regarding Phillips’ religious views were unmerited in a ruling in Phillips’ favor. Colorado’s law prohibited discrimination against gay people in purchasing products and services (Oyez). This dissenting opinion categorizes same-sex marriages as an inherent right that should be publicly accommodated in all instances; to oppose same-sex behavior is an offense equal to racial discrimination, as the dissenting Justices believed homosexuality is a God-given attribute and should be celebrated.
Beyond the U.S. Constitution’s Supremacy Clause, (U.S. Const. art. IV, cl. 2.); Article I, Section 10 proscribes powers (U.S. Const. art. I, §10, cl. 1.), prohibiting States from extranational alliances and preventing the granting of nobility; the Guarantee Clause (U.S. Const. art. IV, §4, cl. 1.) promises each State and its residents a Republican form of government; and Article V, describes the Constitutional amendment process required to appropriate representation per the enumeration of our rights, (U.S. Const. art V, cl. 1.).
The U.S. Constitutional Bill of Rights features provisions that prevent government infringement on personal religion; specifically, the First Amendment’s Establishment Clause and Free Exercise Clause prevent religious persecution. The Establishment Clause reads, “Congress shall make no law respecting an establishment of religion,” adding the Free Exercise Clause that concludes, “or prohibiting the free exercise thereof.” The Supreme Court’s Roman Catholic Diocese v. Cuomo (2021), revealed that these Constitutional Amendment Clauses still may be unrecognized by States or counties; in these instances of conflict, the Constitution’s national authority prevails. The Supreme Court first interpreted the Free Exercise Clause nearly one hundred years after it was first established; in Reynolds v. United States, 98 U.S. 145, 164 (1878), Supreme Court Chief Justice Waite determined that “Congress was deprived of all legislative power over mere opinion,” adding that they were “left free to reach actions,” (Chemerinsky, E. et al., p. 1731). In Contrast, the Supreme Court has ruled against Christian doctrine if it excludes secular interests, due to the Establishment Clause. In Stone v. Graham, 449 U.S. 39 (1980), the Court ruled against displaying the Ten Commandments in school; in Edwards v. Aguillard, 482 U.S. 578 (1987), rejected laws mandating that creationist doctrine be taught alongside secular evolution, ruling that creationism was rooted in theology, unlike evolution; the Supreme Court ruled in both cases that a violation of the Establishment Clause had occurred. In McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), the Supreme Court further described the Establishment Clause stating that;
We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.
In instances where it is initially undeterminable, the Court uses a technique called the Lemon test, a name originating in Lemon v. Kurtzman, 403 U.S. 602 (1971). This three-prong approach uses a position of strict separation or judicial neutrality; Justices utilizing a religious accommodation approach to their determination, reject implementing the Lemon test, (Chemerinsky, E. et al., p. 1770-1772). According to Congress, the criteria include that “(1) it must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster ‘an excessive government entanglement with religion,’” (Congress).
The Supreme Court ruled in McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) that “[t]he Establishment Clause does not permit state action that is openly and principally aimed at furthering the interests of religion,” adding that the “Lemon [test] requires the secular purpose to be genuine, not a sham, and not merely secondary to a religious objective, see, e.g., Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308,” (Justia). The Supreme Court clarified “liberty’s” definition in Poe v. Ullman, 367 U.S. 497 (1961), “not been reduced to any formula”; and Washington v. Glucksberg, 521 U.S. 702 (1997) to be “deeply rooted in this Nation’s history and tradition.” Black’s Law Dictionary defines “liberty” as, Freedom from arbitrary or undue external restraint, esp. by a government; [a] right, privilege, or immunity enjoyed by prescription or grant,” (Garner, B.A., p. 1102). Similarly, the U.S Constitution’s 7th Amendment bases its objectivity “according to the rules of common law.” The term “Common Law” derives from British Common Law, historically principled on God, its legislative origin starting with the Council of Nicaea in 325 A.D (Plucknett, T., 1328). The 9th Amendment reveals that there are additional unenumerated rights recognized by the U.S. government that are naturally possessed by each citizen, giving implied inherent powers to the people.
Conclusion
Religious Liberty has been and will likely perpetually remain a divisive conflict, whose critics’ collective effort will remain unsuccessful in attempts are its eradication. Christian doctrine laid the foundation for America, evident by the Supreme Court’s admission of and evasion from the persecution of Jesus’s disciples. These intrinsic values remain recognized on a federal level, despite futile attempts to absolve the inherent depravity of man through secular intervention. Although consistent debate exists in the public court of opinion, there exists evident Christian [and secular] representation in Judicial rulings; as ensured by our founders. States consistently try to disrupt Constitutional order to attain progressive policy on behalf of constituents; in cases of religious liberty, America’s Constitutional history and Christian founding remain historically separate, but acknowledged by the modern Supreme Court. America’s Christian Foundation appropriated legislation to incorporate secular ideology; Constitutional Originalists must submit that a ruling in favor of same-sex marriage reveals the broad functionality of our Constitutional Republic over two hundred years later. There still exist many Supreme Court decisions that favor religious exemption in the name of Religious Liberty, as seen in recent rulings where Christian interests again prevailed over that of cultural accommodation. The necessity for religious liberty was built directly into the underpinnings of our nation, its omission denies the historicity and Founding principles of the United States of America.
–August 18th, 2023
Bibliography
Archives. (Accessed July 30th, 2023). The Bill of Rights | National Archives. https://www.archives.gov/founding-docs/bill-of-rights
Bock, Darrell L.; Simpson, Benjamin I. Jesus the God-Man. Baker Publishing Group. Kindle Edition.
Chemerinsky, E. et al., (2017) Constitutional Law, Fifth Edition. Aspen Casebook Series: Wolters Kluwer
Congress (Accessed on August 17th, 2023). Amdt1.3.3 Establishment Clause Tests. https://constitution.congress.gov/browse/essay/amdt1-3-3/ALDE_00013073/['lemon']#ALDF_00018252
Congress. (Accessed on August 16th, 2023). Constitution Annotated.
https://constitution.congress.gov/
Elson, J.M. (2007, 2015). Patrick Henry in His Speeches and Writings and in the Words of His Contemporaries. The Patrick Henry Memorial Foundation, Warwick House Publishers: Lynchburg, Virginia.
Garner, B.A. (2019). Black's Law Dictionary, 11th Edition. St. Paul, MN: Thomson Reuters.
Hall, Mark David. (2019). Did America Have a Christian Founding? Thomas Nelson. Kindle Edition.
Hamilton, Alexander; Madison, James; Jay, John. The Federalist. Liberty Fund, Inc. Kindle Edition.
Jefferson, Thomas. Complete Works of Thomas Jefferson (Illustrated) (Delphi Series Ten Book 4). Delphi Classics. Kindle Edition.
Justia. (1987). Edwards v. Aguillard, 482 U.S. 578 (1987). https://supreme.justia.com/cases/federal/us/482/578/
LOC. (1969). Walz v. Tax Commission of the City of New York. https://tile.loc.gov/storage-services/service/ll/usrep/usrep397/usrep397664/usrep397664.pdf
Morris, Gouverneur. To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris. Liberty Fund Inc.. Kindle Edition.
Oyez. (Retrieved July 30, 2023). Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 584 US _ (2018). https://www.oyez.org/cases/2017/16-111?app
Oyez. (Retrieved July 30, 2023). Obergefell v. Hodges, 576 U.S. ___ (2015). https://www.oyez.org/cases/2014/14-556?app
Oyez. (Retrieved July 30, 2023). 303 Creative LLC v. Elenis. https://www.oyez.org/cases/2022/21-476?app
Oyez. (Accessed 17 Aug. 2023). Reynolds v. United States. www.oyez.org/cases/1850-1900/98us145
Oyez. (Retrieved August 13th, 2023). Roman Catholic Diocese of Brooklyn v. Cuomo. https://www.oyez.org/cases/2020/20A87
Oyez. (Retrieved August 16th, 2023). Walz v. Tax Comm'n of the City of New York. https://www.oyez.org/cases/1969/135
Oyez. (Retrieved August 14th, 2023). Webster v. Reproductive Health Services 492 US 490 (1989). https://www.oyez.org/cases/1988/88-605
Plucknett, Theodore F. T. (1956). A Concise History of the Common Law. Liberty Fund Inc. Kindle Edition.
Secular. (Accessed August 17th, 2023). Establishment Clause - Secular Coalition for America. https://secular.org/key-issue/establishment-clause/