The Natural Right of Religious Liberty

Religious Liberty is an inherent natural right acknowledged by the U.S. Constitution, that enumerates civic protections against government intervention—although the freedom to worship is taken for granted by many. But secular individuals and atheists are protected from a mandated national religion, while Christians and other religious denominations are ensured they needn’t conform to the patterns of the world, no matter the influence of culture. No matter the relationship the individual holds with his Creator, the law protects it—even the omission of Supernaturalism altogether.
        The First Amendment to the U.S. Constitution orders the rights of the American citizen recognized by the government. The enumeration of rights was a prospect sought by the Anti-Federalists at the Constitutional Convention. The Federalists, responded that the Constitution was the construct of government; not an enumeration of rights. But critics of the centralized power they had once experienced, or been persecuted under; rejected such notions, opting to dissent against the formation of a union until natural and inherent rights would be guaranteed. Thus spake the first instance of democracy unto this Republic.
        Black’s Law Dictionary defines the Establishment Clause as “[t]he First Amendment provision that prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another,” (Garner, B., p. 688). Bryan Garner, Chief Editor of Black’s Law Dictionary, defines the Free Exercise Clause as “[t]he constitutional provision (U.S. Const. amend. I) prohibiting the government from interfering in people’s religious practices or forms of worship,” (Garner, B., p. 808). Garner defines the word 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 in a particular church, sect, or denomination,” (Garner, B., p. 1545).

Constitutional Foundation of Religious Liberty
        The Constitution’s First Amendment reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It was deliberate that the freedom of religion is the first enumerated right in the Constitution. The term Religion qualifies as a personal relationship with God—namely a covenant with Christ; producing a basis for accountability and self-regulation. Without the freedom to have this personal connection with man’s creator, God, America would not possess a resilient citizenry, nor bear the strength of its union on the global stage, and among other world leaders. The United States of America is not a theocracy, but a Republic; its government conducive with the Biblical doctrine, recognizing an eternal natural law, presupposed to the formation of any government.
        Erwin Chemerinsky “[u]nder both the Establishment Clause and the Free Exercise Clauses, the issue can arise to what is ‘religion.’ Yet, not surprisingly, the Court has avoided trying to formulate a definition.” Chemerinsky adds that “[m]oreover, any attempt to define religion raises concern that choosing a single definition is itself an establishment of religion,” (Chemerinsky, E., p. 1724). Therefore the Supreme Court remains limited by the intended separation of church and state to the extent that the government remains neutral when it comes to defining what religion actually is, beyond the practice of a sincerely held belief. But, though impartial, the Supreme Court has, at times been forced to define religion on the basis of “religious exemption;” most notably with the Selective Service Act, (Chemerinsky, E., p.1725). But, “[t]he Court in Seeger, however offered no criteria for assessing whether a particular view is religious under this definition,” (Chemerinsky, E., p. 1727). Chemerinsky concludes that, “[a]lthough Seeger and Welsh involved the Court’s interpreting a statutory provision and not the First Amendment, they likely would be the starting points for any cases that required the Court to define religion under the Establishment and Free Exercise Clauses;” yet conversely, “[o]n the other hand, these cases can be criticized because of the lack of guidance they providein defining what is a religious belief,” (Chemerinsky, E., p. 1727).
        In United States v. Seeger, (1965), Justice Clark wrote that “[w]e have concluded that Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views,’” (Chemerinsky, E., p. 1726). Justice Clark expounded the opinion for the Court, that this beliefe must be “sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for this exemption,” (Chemerinsky, E., p. 1726).

Purpose of Religious Liberty
        In the Constitution, the purpose of religious Liberty is to (1) preclude government intervention upon the practice of personal worship; and (2) prevent the formation of a national religion. Universally, the purpose of religious liberty is the freedom to worship God. As Jesus forewarned us, “[b]lessed are those who are persecuted for righteousness’ sake, for theirs is the kingdom of heaven,” (Matthew 5:10; ESV). Beyond righteousness, Jesus asserts that “[b]lessed are you when others revile you and persecute you and utter all kinds of evil against you falsely on my account,” (Matthew 5:11; ESV).
        Thus, man ought to “[r]ejoice and be glad, for your reward is great in heaven, for so they persecuted the prophets who were before you,” (Matthew 5:12; ESV). To do this, he must be granted the freedom to worship freely. As David said to Michal, “[i]t was before the LORD who chose me over your father and his whole family to appoint me ruler over the LORD’s people Israel. I will dance before the LORD, and I will dishonor myself and humble myself even more,” (2 Samuel 6:21-22; CSB). Ethically, there is no proper way to worship God, so long as it is joyful. As Jesus declared “[y]ou are the salt of the earth, but if salt has lost its taste, how shall its saltiness be restored? It is no longer good for anything except to be thrown out and trampled under people’s feet,” (Matthew 5:13; ESV). Logically, light illuminates darkness; therefore Christians ought to remember that “[y]ou are the light of the world. A city set on a hill cannot be hidden. Nor do people light a lamp and put it under a basket, but on a stand, and it gives light to all in the house. In the same way, let your light shine before others, so that they may see your good works and give glory to your Father who is in heaven,” (Matthew 5:14-16; ESV).

History of Religious Freedom
        Religious freedom is an inherent human right. God giveth unto Adam the right to obey His decree, or operate in accordance to his own will—he chose the latter, leaving the posterity of man in a persistent fallen state that has culminated into the culture of today.
        We are reminded by the Apostle Paul “[n]ow faith is the assurance of things hoped for, the conviction of things not seen. For by it the people of old received their commendation. By faith we understand that the universe was created by the word of God, so that what is seen was not made out of things that are visible,” (Hebrews 11:1-3; ESV).
        Therefore, man cannot be forced into faith, nor can he claim faith without having a personal relationship with God. Faith is not a personal confidence in merely one’s self—but in the power of the living God. Moreover God reminds us as scribed through Paul’s epistle, “[f]or by grace you have been saved by faith. Nothing you did could ever earn this salvation, for it was the love gift from God that brought us to Christ! So no one will ever be able to boast, for salvation is never a reward for good works or human striving,” (Ephesians 2:8, 9: TPT). Faith is not given by man—but granted by God; thus, he must work to attain such a level of faith that he can stand resilient in the face of treachery, without compromise. (Rom 12:2; 2 Cor 5:7-9). Accordingly, he cannot be forced from faith, pursuant to American legal tradition; alongside the decree of the Courts.
        In 1644, Roger Williams noted that “persecution for cause of conscience is condemned by the ancient and later Writers, yea and Papists themselves.” (Frohen, B., Loc. 1644). Williams added “It agreeth both with humane reason, and naturall equity, that every man worship God uncompelled, and beleeve what he will; for it neither hurteth nor profiteth any one another mans Religion and Beleefe,” (Frohen, B., Loc. 1644). Hundreds of years before America would be founded, there existed an understanding of a sovereign autonomy that could not be infringed.
        Years after America’s Founding, there remained substantial debate over the context of religiosity within American jurisprudence, and what specific aspects were protected under these guarantees. In 1801 the Danbury Baptist Association wrote to Thomas Jefferson “Religion is at all times and places a Matter between God and Individuals—That no man ought to suffer in Name, person or effects on account of his religious Opinions—That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbour,” (Dreisbach, D, p. 31). Thomas Jefferson’s response warranted multiple revisions, showing his thoughtful intent; Jefferson ultimately wrote, “[b]elieving with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof; thus building a wall of eternal separation between church and state,” (Dreisbach, D., pp. 34, 35). Hence, the prospect of Religious Freedom is not just a static right; but consistently challenged by culture. Thus, “[w]hen agency actions are challenged as violations of individual rights, courts must weigh the magnitude of the alleged violation against the public interest the agency is serving,” (Stephens, Jr., O., p. 290). It is the duty of the Court to ensure that they remain impartial in their decision, no matter their personal views on the religion or method of worship; so long as it does not violate any criminal law.
        In America, the first official instance of acknowledging the citizens’ presupposed right of freedom of religion was written into the Declaration of Independence. This declaration declared that God was the arbiter of natural law, and that no other individual could usurp that position of authority. Moreover, the Declaration of Independence was a declaration of grievances against the King; ensuring the preclusion of these attributes in the formation of this new nation; what would become the United States of America. In Lee v. Weisman, (1992), Justice Scalia, in his dissent, wrote that “[f]rom our Nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, ‘appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions’ and avowed ‘a firm reliance on the protection of divine Providence,” (Scalia, A., p. 174). Scalia added, that “[i]n his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President,” (Scalia, A., p. 174).
        Thirty years prior to Lee v Weisman, was Engel v. Vital (1962), whereby the Supreme Court set precedence, “the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each day,” (Stephens, Jr., O., p. 245). Justice Black delivered the opinion of the Court, writing “in this country it is no part of the business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by government,” (Stephens, Jr., O., p.  245).

Legislative Changes Over Time
        Since the Constitution was ratified, the American nation was formed, and the Bill of Rights were enacted; there have been many legislative changes over time that have greatly influenced the freedom of religion. Some Supreme Court ruling have bolstered support for religion; whilst other rulings have detracted from the essence of the Christian doctrine. Overall, pluralism is a delicate proposition, especially in a nation founded on Christianity. Everything—from America’s common law system adopted from English Common Law; to the recognition of natural rights; to the enumeration of our Lord within the founding documents—derived from a foundation of Christ. Yet today, the legislative changes in American Religious Freedom has changed; now seeking to adopt any and all religions; whilst applying the same rights to institutions and corporations.
        In the contemporary Constitutional system, the Court has drawn more inference toward the nature and meaning; without applying an official definition—per the Establishment Clause. However, in the Supreme Court in United States v. Ballard (1944) “indicated that the judiciary can determine only whether they are sincerely held views, not whether they are true or false,” (Chemerinsky, E., p. 1728). This ruling reinforced the meaning of the Free Exercise Clause in contemporary culture, while giving some context to the extent in which the provision may apply for future cases. 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;” thus a person is free to think what he wills, no matter the opinion of others; so long as his actions do not violate any criminal law. In United States v. Seeger, (1965), Justice Clark delivered the opinion of the Court, in that “[t]he parties raise the basic question of the constitutionality of the section which defines the term ‘religious training and belief,’ as used in the Act, as ‘an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views, or a merely personal code,” (Chemerinsky, E., p. 1725).
        In Epperson v. Arkansas, 393 U.S. 97 (1968), the Court ruled that “[t]here is and can be no doubt that the First Amendment does not permit the State to require that the teaching and learning must be tailored to the principles or prohibitions of any religious dogma,” (Chemerinsky, E., p. 1817). In 1971 the Lemon Test was developed by the Supreme Court in the case of Lemon v. Kurtzman, (1971). Under this test, “a challenged policy must . . . (1) have a secular legislative purpose; it must not have the principle or primary effect of ‘inhibiting or advancing religion; and (3) it must avoid an ‘excessive government entanglement with religion’” (Stephens, Jr., O., p. 242). This test was test in a similar case two years later; in the case of Committee for Public Education v. Nyquist, (1973). Here, “the Court used the [same] three-pronged test in striking down a New York law that provided various forms of economic aid to parochial schools.
        The 1980s brought further revision to the concept of religious freedom. In 1981, the Supreme Court ruled in Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), the Court ruled that “an individual could claim a religious belief even though it was inconsistent with the doctrines of his or her religion,” (Chemerinsky, E., p. 1730). Otis Stephens, Jr., notes of Bob Jones University v. United States, (1983), on its rejection of Black students, and later ban of interracial relations; writing that “[o]ne of the most controversial Supreme Court decisions of the early 1980s dealt with the question of whether tax-exempt status could be withdrawn from religious schools that practice race discrimination,” (Stephens, Jr, O., p. 252). Thus, the Court’s decision in Bob Jones v. United States implied that “tax exemptions for religious enterprises are not a matter of constitutional entitlement—they are granted through governmental benevolence and can be withdrawn for reasons of public policy,” (Stephens, Jr., O., p. 252). In 1985 the Supreme Court affirmed its position on government assistance for religious schools in two cases. In Aguilar v. Felton, (1985), “the Court struck down a New York City program that used federal funds to supplement the salaries of public school teachers who taught remedial courses on the premises of religious schools,” (Stephens, Jr., O., p. 244). In Grand Rapids School District v. Ball, (1985), “the court invalidated a program in which supplementary classes for students in sectarian schools were taught by public school teachers at public expense,” (Stephens, Jr., O., p. 244).
        The 1990s brought the meaning of Religious Liberty into the modern age. In Employment Division v. Smith, (1990) “the Court substantially changed the law regarding the Free Exercise Clause and articulated the test that is used today,” (Chemerinsky, E., p. 1732). Justice Scalia delivered the opinion of the Court, writing, that “the ‘exercise of religion’ often involves not only belief and professional but the performance of (or abstention from) physical acts: assembling with for a worship service, participating in the sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation,” (Chemerinsky, E., p. 1733). Scalia went on to add that “[b]ut a law that prohibits certain conduct — conduct that happens to be an act of worship for someone — manifestly does prohibit that person’s free exercise of religion,” (Chemerinsky, E., p. 1737). With this, came the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA offered new precedence to religious liberty in “prohibit[ing] government at all levels from substantially burdening a person’s free exercise of religion, even if such a burden resulted from a generally applicable rule,” (Stephens, Jr., O, p. 235). Conversely, if the government is able to “demonstrate a compelling interest and that the rule constituted the least restrictive means of furthering that interest,” the aggrieved may be ineligible for protection under the Religious Freedom Restoration Act (RFRA), (Stephens, Jr., O, p. 235). The ”RFRA applies to ‘a person’s’ exercise of religion, and RFRA itself does not define the term ‘person,’” McConnell, M., p. 174).  Thus, “[u]nder the Dictionary Act, ‘the wor[d] “person” . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,’” (McConnell, M., p. 174). In 1994, the Supreme Court affirmed its position again on the subject of federal funding of religious schools, in Kiryas Joel School District v Grumet, (1994).
        The turn of the century brought with in both clarity and ambiguity when interpreting the meaning of Religious Freedom. Aspects of this provision remained consistent, unchanging since their inception; whilst others set precedence against cases challenging previous tradition. In Mitchell v. Helms, (2000), “by a 6-to-3 vote, expanded the types of public aid that government may provide to parochial schools,” (Stephens, Jr., O., p. 244). While this sounds like the majority agreed, “[t]he six members of the majority could not agree on single opinion, however,” (Stephens, Jr., O., p. 244). But the Court “upheld a Louisiana statute permitting state and local governments to lend library books, projectors, televisions, computers, software, and similar equipment to parochial and other private not-for-profit elementary and secondary schools;” thereby setting a precedent that “virtually all schoolchildren access to the internet,” (Stephens, Jr., O., p. 245). Barry W. Lynn, executive director for the Americans United for the Separation of Church and State, “observed that as a result of this decision, ‘religious schools can now have students surf the Internet to read the Bible in religion classes, learn theology from Jerry Falwell, or download crucifixes as screen savers,’” (Stephens, Jr., O., p. 245). Conversely, notes Otis Stephens, Jr., students of religion can access the Internet and be influenced by “ideas that run counter to the religious views of their teachers and parents,” (Stephens, O., p. 245). In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Justice Rehnquist delivered the opinion of the Court, writing “[w]hile our jurisprudence with respect to the constitutionality of direct aid programs has ‘changed significantly’ over the past two decades, our jurisprudence with respect to true private choice programs has remained consistent and unbroken,” Chemerinsky, p. 1842). Justice Rehnquist clarified for the record, “[t]here times we have confronted Establishment Clause challenges to neutral government programs . . . [t]here times we have rejected such challenges,” (Chemerinsky, E., p. 1843).
        In 2014, the Supreme Court noted in Town of Greece v., Galloway, 134 S. Ct.1811 (2014), that “no violation had occurred,” do to the town of Greece, New York “opening its monthly board meetings with a prayer,” (Chemerinsky, E., p. 1818). The Court concluded that the prayers did not originate from a specific established religion, nor did they seek to establish a pathway to any religion. Similarly, in Burwell v Hobby Lobby, 134 S. Ct. 2571 (2014), Justice Alito delivered the opinion of the Court, writing “[t]he plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporation in the manner required by their religious beliefs,” (Chemerinsky, E., p. 1749).

Conclusion

In sum, the U.S. Supreme Court has shaped the image of religious freedom over the course of American history. Whilst the Court has acknowledged the original intentions of the Founders, the concept of religious freedom still invokes a state of contention amongst its critics. But the concept of religious freedom is nothing new; nor was it an invention of government. Instead, the concept of freewill itself grants man the opportunity to choose where to place his faith, and in what method he should conduct worship. The Supreme Court has opted not to define religiosity itself, lest infringing on the Constitution’s Establishment Clause. But it has not remained neutral when it comes to religious exemptions, as it has been forced to decide for itself what the notion of ascribing to a denomination specifically entails.

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Bibliography

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Dreisbach, D. (2002). Thomas Jefferson and the Wall of Separation Between Church and State (Critical America). NYU Press.

McConnell, M, et al. (2016). Religion and the Constitution: Fourth Edition. Wolters Kluwer: New York

Stephens, O., et al. (2008, 2012, 2015). American Constitutional Law, Volume I: Sources of Power and Restraint: Sixth Edition. Cengage Publishing.

Stephens, O., et al. (2003, 2008, 2012). American Constitutional Law, Volume II: Sources of Power and Restraint: Fifth Edition. Wadsworth Cengage Publishing.

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