freedom of religion in america essay

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Freedom of Religion

By: History.com Editors

Updated: July 28, 2023 | Original: December 7, 2017

Freedom of religion is protected by the First Amendment of the U.S. Constitution, which prohibits laws establishing a national religion or impeding the free exercise of religion for its citizens. While the First Amendment enforces the “separation of church and state” it doesn’t exclude religion from public life. From the colonial era to present, religion has played a major role in politics in the United States. The U.S. Supreme Court over the years has ruled inconsistently on matters of religious freedom, such as the display of religious symbols in government buildings.

Religion In Colonial America

America wasn’t always a stronghold of religious freedom. More than half a century before the Pilgrims set sail in the Mayflower , French Protestants (called Huguenots) established a colony at Fort Caroline near modern-day Jacksonville, Florida .

The Spanish, who were largely Catholic and occupied much of Florida at the time, slaughtered the Huguenots at Fort Caroline. The Spanish commander wrote the king that he had hanged the settlers for “scattering the odious Lutheran doctrine in these Provinces.”

The Puritans and Pilgrims arrived in New England in the early 1600s after suffering religious persecution in England. However, the Puritans of Massachusetts Bay Colony didn’t tolerate any opposing religious views. Catholics, Quakers and other non-Puritans were banned from the colony.

Roger Williams

In 1635 Roger Williams , a Puritan dissident, was banned from Massachusetts. Williams then moved south and founded Rhode Island . Rhode Island became the first colony with no established church and the first to grant religious freedom to everyone, including Quakers and Jews.

As Virginia’s governor in 1779, Thomas Jefferson drafted a bill that would guarantee the religious freedoms of Virginians of all faiths—including those with no faith—but the bill did not pass into law.

Religion was mentioned only once in the U.S. Constitution . The Constitution prohibits the use of religious tests as qualification for public office. This broke with European tradition by allowing people of any faith (or no faith) to serve in public office in the United States.

First Amendment

In 1785, Virginia statesman (and future president) James Madison argued against state support of Christian religious instruction. Madison would go on to draft the First Amendment , a part of the Bill of Rights that would provide constitutional protection for certain individual liberties including freedom of religion, freedom of speech and the press, and the rights to assemble and petition the government.

The First Amendment was adopted on December 15, 1791. It established a separation of church and state that prohibited the federal government from making any law “respecting an establishment of religion.” It also prohibits the government, in most cases, from interfering with a person’s religious beliefs or practices.

The Fourteenth Amendment, adopted in 1868, extended religious freedom by preventing states from enacting laws that would advance or inhibit any one religion.

Religious Intolerance In the United States

Mormons , led by Joseph Smith , clashed with the Protestant majority in Missouri in 1838. Missouri governor Lilburn Boggs ordered that all Mormons be exterminated or expelled from the state.

At Haun’s Mill, Missouri militia members massacred 17 Mormons on October 30, 1838.

In the late nineteenth and early twentieth centuries, the U.S. government subsidized boarding schools to educate and assimilate Native American children. At these schools, Native American children were prohibited from wearing ceremonial clothes or practicing native religions.

While most states followed federal example and abolished religious tests for public office, some states maintained religious tests well into the twentieth century. Maryland , for instance, required “a declaration of belief in God,” for all state officeholders until 1961.

Landmark Supreme Court Cases

Reynolds v. United States (1878): This Supreme Court case tested the limits of religious liberty by upholding a federal law banning polygamy. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Muslim Travel Bans

In 2017, federal district courts struck down the implementation of a series of travel bans ordered by President Donald J. Trump , citing that the bans—which discriminate against the citizens of several Muslim-majority nations—would violate the First Amendment’s Establishment Clause.

America’s True History of Religious Tolerance; Smithsonian.com . Religious Liberty: Landmark Supreme Court Cases; Bill of Rights Institute . First Amendment; Legal Information Institute .

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U.S. Constitution.net

Founders’ vision of religious freedom, religious beliefs of the founding fathers.

The American founding era encompassed a vast spectrum of religious beliefs, reflecting the diversity of the population itself. Approximately 98% of Americans of European descent identified with Protestantism , predominantly adhering to the reformed theological tradition. This demographic shaped the religious landscape the Founding Fathers traversed.

Thomas Jefferson's beliefs straddled Enlightenment rationalism and deism. He advocated for a strict separation of church and state, yet he was deeply spiritual, rejecting organized religion. An Enlightenment rationalist, he saw reason as a guiding light planted by God, responsible for guiding human actions. Jefferson's commitment to religious freedom shone through his crafting of the Virginia Statute for Religious Freedom , ensuring that no man should suffer on account of his religious opinions.

James Madison championed religious freedom, opposing the imposition of any religious taxes in Virginia. His efforts culminated in the adoption of Jefferson's statute, reinforcing the vision that religious liberty covered all religious denominations.

Benjamin Franklin's approach to religion was more pragmatic. While he believed in a higher power and moral righteousness, Franklin was known for his skepticism about organized religion's dogma. His contributions to religious liberty focused on the broader philosophical underpinnings that allowed a multitude of beliefs to coexist peacefully.

John Witherspoon, a Presbyterian minister, emphasized virtue and morality grounded in Christianity as essential for the newly formed republic, acknowledging that religion played a crucial role in maintaining civic order and virtue.

Roger Sherman, another devout Christian, advocated for a government that allowed religious exercises but did not mandate them, demonstrating an understanding that personal faith should not infringe upon the liberties of others.

John Adams leaned towards Unitarianism. His letters often reflect a belief in a moral divine order, yet he resisted the idea of a state-endorsed church, seeing the danger in intertwining religious authority with governmental power.

Thomas Paine represented the far end of the spectrum. His pamphlet "Common Sense" galvanized support for independence while critiquing institutionalized religion heavily. Unlike many founders, Paine was openly skeptical of Christianity, advocating for a deistic approach that celebrated reason over religious dogma.

The Founding Fathers' vision ranged from Jefferson's enlightened deism to Witherspoon's orthodox Christianity. This variety ensured a balanced approach to religious freedom, enshrined in the First Amendment, aiming for a secular state allowing for varied religious practice, free from religious tyranny.

Influence of the Bible on the Founding Fathers

The Bible's influence on the Founding Fathers is evident in their understanding of human nature. They were aware of mankind's fallibility and moral imperfections, a worldview endorsed by biblical teachings, particularly those in Genesis. The notion that man is inherently flawed led the Founders to design a system of government with checks and balances to prevent the concentration and abuse of power, reflecting the biblical wisdom gleaned from texts such as Jeremiah 17:9 and Romans 3:23 . 1,2

Regarding social order and the legitimacy of authority, the Bible served as a cornerstone. Exodus 18:21 , where Jethro advises Moses to select capable men who fear God, are trustworthy, and hate dishonest gain to help govern Israel, influenced the Founders in their conceptualization of a righteous and accountable government led by virtuous individuals. 3 They perceived that the moral character of leaders was paramount, echoing the sentiment in Proverbs 29:2 . 4

In seeking to justify resistance against tyranny, the Founders turned to biblical precedents, most notably in the Old Testament accounts. These stories reinforced their belief that it was both a right and a duty to resist tyrannical authority, thus informing the revolutionary spirit that characterized the American struggle for independence.

The principle of liberty was another area richly informed by the Bible. The Founders frequently cited Galatians 5:1 , using it to underscore the value of personal and communal freedom. 5 Though this text fundamentally speaks to spiritual liberty, the revolutionary approach adopted it to highlight the broader human yearning for freedom from oppression.

As these biblical principles were interwoven into the Constitution, they also found expression in practical governance:

• The Bible's call for justice and equity under the law is mirrored in the equal protection and due process clauses.
• The Judeo-Christian ethic, promoting societal moral standards and personal responsibility, provided a foundation for the rule of law as envisioned by the Founders.

The Bible was a vital text that informed the Founding Fathers' public and political lives. Its teachings on human nature, social order, and righteous leadership influenced their construction of the American constitutional republic. They envisaged a system where a virtuous citizenry, guided by reason and moral integrity, could sustain a free and just society. The result is a legacy where religious freedom flourishes within a secular government framework—a testament to the foresight of the Founding Fathers and the timeless wisdom they drew from biblical scripture.

The First Amendment and Religious Freedom

The inclusion of religious freedom in the First Amendment was a profound philosophical and political statement, reflecting the lived experiences and aspirations of the American colonists. Many colonists had fled their homelands to escape the tyrannical reach of state-endorsed churches, seeking a place where they could worship freely without fear of oppression.

These personal experiences deeply influenced the Founding Fathers' views on religious liberty:

• Thomas Jefferson witnessed the harsh persecution of dissenters in Virginia, particularly Baptists who were imprisoned for preaching without a license. This sparked his commitment to safeguarding religious freedom and his creation of the Virginia Statute for Religious Freedom .
• James Madison understood the dangers of a state intertwined with religious authority, believing that true religious faith could only flourish without government interference.

The philosophical and political theories of the Enlightenment also played a crucial role in shaping the Founders' views on religious liberty. Thinkers like John Locke argued that belief could not be coerced and that individuals had an inherent right to religious liberty—a view that resonated with the Founding Fathers. 6

The Founders recognized that for a society to truly respect personal liberty and foster civic virtue, it must allow individuals the freedom to believe and worship as they choose. The separation of church and state was seen as a means of ensuring that faith could thrive without the corrupting influences of political power.

Politically, the Founders were wary of the religious conflicts that had plagued Europe for centuries. Their aim was to prevent such turmoil in the nascent United States by ensuring that government neither mandated nor restricted religious practices.

The varied religious composition of the American colonies necessitated an approach that could accommodate a broad spectrum of beliefs. The First Amendment, with its establishment clause and free exercise clause , sought to provide this accommodation:

• By prohibiting the establishment of a national religion, the Founders ensured that no single denomination could claim governmental endorsement.
• Simultaneously, by protecting the free exercise of religion, they guaranteed that all individuals could practice their faith without fear of government reprisal.

The First Amendment embodied a blend of philosophical ideals and practical considerations. It was the product of Enlightenment rationalism, historical experiences of persecution, and a pragmatic recognition of the pluralistic nature of American society. The result was a constitutional framework that allowed for a vibrant diversity of religious expression while maintaining a government that was neutral in matters of faith.

Thus, the inclusion of religious freedom in the First Amendment was a cornerstone of the Founders' vision for a nation where liberty and justice could prevail for all, uninhibited by the specter of religious domination or discrimination. It ensured that Americans could build a society rooted in moral integrity and personal liberty, reflecting the profound insights and foresight of the enlightened minds that crafted this unparalleled document.

The Wall of Separation Between Church and State

The phrase "wall of separation between church and state," coined by Thomas Jefferson, has become a cornerstone in understanding the American constitutional approach to church-state relations. Jefferson's intent was crystallized in his 1802 letter to the Danbury Baptist Association, where he sought to assure the Baptists that their religious freedoms would be protected from governmental interference. He asserted that the First Amendment built "a wall of separation between Church & State," reinforcing his commitment to religious liberty as outlined in the Virginia Statute for Religious Freedom.

Jefferson's metaphor stemmed from his Enlightenment ideals and rationalist principles, believing that reason should guide human governance—including religious matters. His advocacy for a clear delineation between the roles of religion and government was shaped by his observations of the oppressive religious practices in Europe and the colonial experiences in America. He contended that religious belief should be a matter of personal conviction, free from state coercion.

Initially, Jefferson's notion was closely aligned with the efforts to ensure that no single religious denomination could wield governmental power, thus maintaining a pluralistic and equitable civil society. However, his phrase has been subject to various interpretations since its inception. Scholars and jurists have debated whether Jefferson intended an absolute separation where no acknowledgment or accommodation of religion in public life would be permissible, or merely a prohibition against the establishment of a state-sponsored religion.

Supreme Court interpretations have varied over the decades. In the landmark case of Reynolds v. United States (1879), the Court referenced Jefferson's phrase in defining the scope of the First Amendment. The opinion affirmed that laws could not interfere with religious belief but could regulate practices that were subversive to good order. This case set a precedent, framing the wall as a barrier to legislative imposition on religious belief while allowing for legal constraints on religious practices that conflicted with civil obligations. 1

Significant shifts occurred with the mid-20th-century jurisprudence. In Everson v. Board of Education (1947), the Court emphasized a strict interpretation, asserting that no aid or preferment should be granted to religious institutions by the state, although it upheld the state's provision of transportation subsidies to parochial schools. This case underscored the interpretation that the government must remain neutral in religious matters, avoiding any entanglement which might suggest state endorsement of religion.

Conversely, some critics argue that an overly rigid interpretation of the "wall" inhibits reasonable and historical intersections of faith and governance. Historical practices such as legislative prayers, the employment of chaplains, and public religious expressions by government officials have been seen by some as congruent with the Founders' intent to allow public religious practices within a framework that avoids preferential treatment. 2

The debate over the phrase "wall of separation" persists, influencing contemporary discussions on religious displays on public property, religious exemptions from generally applicable laws, and the extent of permissible religious expression within public institutions. Jefferson's vision was fundamentally about preventing an official state religion and ensuring that government could not coerce individuals in matters of faith, thus fostering a society where religious liberty could thrive.

Therefore, while Jefferson's "wall of separation" is a defining concept, its practical application has evolved, demonstrating the dynamic interplay between maintaining religious freedom and accommodating religious diversity within a constitutional republic.

Modern Interpretations and Controversies

In recent times, the discourse surrounding religious freedom and the separation of church and state has persisted as a dynamic and often contentious area of American constitutional law. Modern interpretations of Jefferson's "wall of separation" continue to inform contemporary legal challenges and societal debates, illustrating the evolving nuances of the Founding Fathers' vision in today's diverse religious landscape.

One of the significant modern studies contributing to this ongoing discussion is the Center for Religion, Culture and Democracy's annual Religious Liberty in the States Index. This comprehensive index analyzes state laws and regulations across fourteen categories, examining the impact on both individuals and religious organizations. The findings from the latest report reveal an intriguing spectrum of religious freedom protections across the United States, highlighting the intricate balance states attempt to achieve between safeguarding religious liberties and adhering to secular principles.

For example, Illinois , a state with a predominantly liberal political climate, ranks highest in religious freedom protections. This stands in contrast to West Virginia , a state with a more conservative orientation, ranking lowest. Such results suggest that safeguarding religious freedom transcends political boundaries and reflects a broader approach.

Discussions within the judicial and legislative frameworks continue to shape the understanding and application of religious freedom. Landmark cases such as Burwell v. Hobby Lobby Stores, Inc. and Masterpiece Cakeshop v. Colorado Civil Rights Commission underscore the ongoing legal balancing act between religious liberties and other fundamental rights, such as non-discrimination. These cases reflect the judiciary's approach to ensuring that religious freedom does not impinge upon the rights and freedoms of others, maintaining the delicate equilibrium envisioned by the Founding Fathers. 3

As these legal challenges unfold, it becomes evident that religious freedom in the United States embraces a bipartisan appeal. Jonathan Den Hertog, a professor at Samford University, underscores that this fundamental liberty necessitates bipartisan support to remain a vital force in American public life. His insights remind us that the protection and preservation of religious freedoms must transcend political affiliations.

Yet, despite the non-partisan ideal, certain aspects of religious freedom continue to spark debate. Issues such as exemptions related to marriage and healthcare often reveal ideological divides. While some argue for broader religious accommodations, others raise concerns about potential infringements upon civil rights and equality. The intricacy of these debates mirrors the diverse religious and societal fabric of the nation, necessitating a legal and political approach that respects both religious convictions and fundamental rights.

Modern studies also reflect the significant role of religious liberty in protecting minority faiths. Asma T. Uddin, a legal scholar, highlights how these protections are vital for communities like American Muslims. Provisions for religious school absences, religious ceremonial life, and opt-out provisions for public school curricula on sexual orientation and gender identity are crucial in ensuring that religious minorities can practice their faith freely within a secular framework. 4

The Religious Liberty in the States Index employs quantitative measures to assess the impact of laws on religious freedoms. This empirical approach provides policymakers and legislators with valuable insights to reform and enhance religious freedom protections in their respective states. As the Center for Religion, Culture and Democracy plans to expand its index and possibly undertake a similar project in Europe, it underscores the transatlantic relevance of religious freedom debates.

In conclusion, the modern interpretation of religious freedom in the United States remains a dynamic and multifaceted endeavor. The Founding Fathers' vision, encapsulated in the First Amendment, continues to guide contemporary legal and societal debates, ensuring that religious liberty thrives within a constitutional republic.

The Founding Fathers' commitment to religious freedom, enshrined in the First Amendment, remains a cornerstone of American values. Their vision of a society where liberty and justice prevail, free from religious tyranny, continues to guide contemporary discussions on church-state relations. This legacy underscores the importance of maintaining a constitutional framework that respects individual conscience while fostering a diverse and harmonious society.

America’s True History of Religious Tolerance

The idea that the United States has always been a bastion of religious freedom is reassuring—and utterly at odds with the historical record

Kenneth C. Davis

Wading into the controversy surrounding an Islamic center planned for a site near New York City’s Ground Zero memorial this past August, President Obama declared: “This is America. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are.” In doing so, he paid homage to a vision that politicians and preachers have extolled for more than two centuries—that America historically has been a place of religious tolerance. It was a sentiment George Washington voiced shortly after taking the oath of office just a few blocks from Ground Zero.

But is it so?

In the storybook version most of us learned in school, the Pilgrims came to America aboard the Mayflower in search of religious freedom in 1620. The Puritans soon followed, for the same reason. Ever since these religious dissidents arrived at their shining “city upon a hill,” as their governor John Winthrop called it, millions from around the world have done the same, coming to an America where they found a welcome melting pot in which everyone was free to practice his or her own faith.

The problem is that this tidy narrative is an American myth. The real story of religion in America’s past is an often awkward, frequently embarrassing and occasionally bloody tale that most civics books and high-school texts either paper over or shunt to the side. And much of the recent conversation about America’s ideal of religious freedom has paid lip service to this comforting tableau.

From the earliest arrival of Europeans on America’s shores, religion has often been a cudgel, used to discriminate, suppress and even kill the foreign, the “heretic” and the “unbeliever”—including the “heathen” natives already here. Moreover, while it is true that the vast majority of early-generation Americans were Christian, the pitched battles between various Protestant sects and, more explosively, between Protestants and Catholics, present an unavoidable contradiction to the widely held notion that America is a “Christian nation.”

First, a little overlooked history: the initial encounter between Europeans in the future United States came with the establishment of a Huguenot (French Protestant) colony in 1564 at Fort Caroline (near modern Jacksonville, Florida). More than half a century before the Mayflower set sail, French pilgrims had come to America in search of religious freedom.

The Spanish had other ideas. In 1565, they established a forward operating base at St. Augustine and proceeded to wipe out the Fort Caroline colony. The Spanish commander, Pedro Menéndez de Avilés, wrote to the Spanish King Philip II that he had “hanged all those we had found in [Fort Caroline] because...they were scattering the odious Lutheran doctrine in these Provinces.” When hundreds of survivors of a shipwrecked French fleet washed up on the beaches of Florida, they were put to the sword, beside a river the Spanish called Matanzas (“slaughters”). In other words, the first encounter between European Christians in America ended in a blood bath.

The much-ballyhooed arrival of the Pilgrims and Puritans in New England in the early 1600s was indeed a response to persecution that these religious dissenters had experienced in England. But the Puritan fathers of the Massachusetts Bay Colony did not countenance tolerance of opposing religious views. Their “city upon a hill” was a theocracy that brooked no dissent, religious or political.

The most famous dissidents within the Puritan community, Roger Williams and Anne Hutchinson, were banished following disagreements over theology and policy. From Puritan Boston’s earliest days, Catholics (“Papists”) were anathema and were banned from the colonies, along with other non-Puritans. Four Quakers were hanged in Boston between 1659 and 1661 for persistently returning to the city to stand up for their beliefs.

Throughout the colonial era, Anglo-American antipathy toward Catholics—especially French and Spanish Catholics—was pronounced and often reflected in the sermons of such famous clerics as Cotton Mather and in statutes that discriminated against Catholics in matters of property and voting. Anti-Catholic feelings even contributed to the revolutionary mood in America after King George III extended an olive branch to French Catholics in Canada with the Quebec Act of 1774, which recognized their religion.

When George Washington dispatched Benedict Arnold on a mission to court French Canadians’ support for the American Revolution in 1775, he cautioned Arnold not to let their religion get in the way. “Prudence, policy and a true Christian Spirit,” Washington advised, “will lead us to look with compassion upon their errors, without insulting them.” (After Arnold betrayed the American cause, he publicly cited America’s alliance with Catholic France as one of his reasons for doing so.)

In newly independent America, there was a crazy quilt of state laws regarding religion. In Massachusetts, only Christians were allowed to hold public office, and Catholics were allowed to do so only after renouncing papal authority. In 1777, New York State’s constitution banned Catholics from public office (and would do so until 1806). In Maryland, Catholics had full civil rights, but Jews did not. Delaware required an oath affirming belief in the Trinity. Several states, including Massachusetts and South Carolina, had official, state-supported churches.

In 1779, as Virginia’s governor, Thomas Jefferson had drafted a bill that guaranteed legal equality for citizens of all religions—including those of no religion—in the state. It was around then that Jefferson famously wrote, “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” But Jefferson’s plan did not advance—until after Patrick (“Give Me Liberty or Give Me Death”) Henry introduced a bill in 1784 calling for state support for “teachers of the Christian religion.”

Future President James Madison stepped into the breach. In a carefully argued essay titled “Memorial and Remonstrance Against Religious Assessments,” the soon-to-be father of the Constitution eloquently laid out reasons why the state had no business supporting Christian instruction. Signed by some 2,000 Virginians, Madison’s argument became a fundamental piece of American political philosophy, a ringing endorsement of the secular state that “should be as familiar to students of American history as the Declaration of Independence and the Constitution,” as Susan Jacoby has written in Freethinkers , her excellent history of American secularism.

Among Madison’s 15 points was his declaration that “the Religion then of every man must be left to the conviction and conscience of every...man to exercise it as these may dictate. This right is in its nature an inalienable right.”

Madison also made a point that any believer of any religion should understand: that the government sanction of a religion was, in essence, a threat to religion. “Who does not see,” he wrote, “that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” Madison was writing from his memory of Baptist ministers being arrested in his native Virginia.

As a Christian, Madison also noted that Christianity had spread in the face of persecution from worldly powers, not with their help. Christianity, he contended, “disavows a dependence on the powers of this world...for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.”

Recognizing the idea of America as a refuge for the protester or rebel, Madison also argued that Henry’s proposal was “a departure from that generous policy, which offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country.”

After long debate, Patrick Henry’s bill was defeated, with the opposition outnumbering supporters 12 to 1. Instead, the Virginia legislature took up Jefferson’s plan for the separation of church and state. In 1786, the Virginia Act for Establishing Religious Freedom, modified somewhat from Jefferson’s original draft, became law. The act is one of three accomplishments Jefferson included on his tombstone, along with writing the Declaration and founding the University of Virginia. (He omitted his presidency of the United States.) After the bill was passed, Jefferson proudly wrote that the law “meant to comprehend, within the mantle of its protection, the Jew, the Gentile, the Christian and the Mahometan, the Hindoo and Infidel of every denomination.”

Madison wanted Jefferson’s view to become the law of the land when he went to the Constitutional Convention in Philadelphia in 1787. And as framed in Philadelphia that year, the U.S. Constitution clearly stated in Article VI that federal elective and appointed officials “shall be bound by Oath or Affirmation, to support this Constitution, but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

This passage—along with the facts that the Constitution does not mention God or a deity (except for a pro forma “year of our Lord” date) and that its very first amendment forbids Congress from making laws that would infringe of the free exercise of religion—attests to the founders’ resolve that America be a secular republic. The men who fought the Revolution may have thanked Providence and attended church regularly—or not. But they also fought a war against a country in which the head of state was the head of the church. Knowing well the history of religious warfare that led to America’s settlement, they clearly understood both the dangers of that system and of sectarian conflict.

It was the recognition of that divisive past by the founders—notably Washington, Jefferson, Adams and Madison—that secured America as a secular republic. As president, Washington wrote in 1790: “All possess alike liberty of conscience and immunity of citizenship. ...For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens.”

He was addressing the members of America’s oldest synagogue, the Touro Synagogue in Newport, Rhode Island (where his letter is read aloud every August). In closing, he wrote specifically to the Jews a phrase that applies to Muslims as well: “May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other inhabitants, while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid.”

As for Adams and Jefferson, they would disagree vehemently over policy, but on the question of religious freedom they were united. “In their seventies,” Jacoby writes, “with a friendship that had survived serious political conflicts, Adams and Jefferson could look back with satisfaction on what they both considered their greatest achievement—their role in establishing a secular government whose legislators would never be required, or permitted, to rule on the legality of theological views.”

Late in his life, James Madison wrote a letter summarizing his views: “And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.”

While some of America’s early leaders were models of virtuous tolerance, American attitudes were slow to change. The anti-Catholicism of America’s Calvinist past found new voice in the 19th century. The belief widely held and preached by some of the most prominent ministers in America was that Catholics would, if permitted, turn America over to the pope. Anti-Catholic venom was part of the typical American school day, along with Bible readings. In Massachusetts, a convent—coincidentally near the site of the Bunker Hill Monument—was burned to the ground in 1834 by an anti-Catholic mob incited by reports that young women were being abused in the convent school. In Philadelphia, the City of Brotherly Love, anti-Catholic sentiment, combined with the country’s anti-immigrant mood, fueled the Bible Riots of 1844, in which houses were torched, two Catholic churches were destroyed and at least 20 people were killed.

At about the same time, Joseph Smith founded a new American religion—and soon met with the wrath of the mainstream Protestant majority. In 1832, a mob tarred and feathered him, marking the beginning of a long battle between Christian America and Smith’s Mormonism. In October 1838, after a series of conflicts over land and religious tension, Missouri Governor Lilburn Boggs ordered that all Mormons be expelled from his state. Three days later, rogue militiamen massacred 17 church members, including children, at the Mormon settlement of Haun’s Mill. In 1844, a mob murdered Joseph Smith and his brother Hyrum while they were jailed in Carthage, Illinois. No one was ever convicted of the crime.

Even as late as 1960, Catholic presidential candidate John F. Kennedy felt compelled to make a major speech declaring that his loyalty was to America, not the pope. (And as recently as the 2008 Republican primary campaign, Mormon candidate Mitt Romney felt compelled to address the suspicions still directed toward the Church of Jesus Christ of Latter-day Saints.) Of course, America’s anti-Semitism was practiced institutionally as well as socially for decades. With the great threat of “godless” Communism looming in the 1950s, the country’s fear of atheism also reached new heights.

America can still be, as Madison perceived the nation in 1785, “an Asylum to the persecuted and oppressed of every Nation and Religion.” But recognizing that deep religious discord has been part of America’s social DNA is a healthy and necessary step. When we acknowledge that dark past, perhaps the nation will return to that “promised...lustre” of which Madison so grandiloquently wrote.

Kenneth C. Davis is the author of Don’t Know Much About History and A Nation Rising , among other books.

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Religious freedom in america: constitutional roots and contemporary challenges.

By: Allen Hertzke

May 27, 2015

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Religion and the Founding of the American Republic Religion and the Federal Government, Part 1

In response to widespread sentiment that to survive the United States needed a stronger federal government, a convention met in Philadelphia in the summer of 1787 and on September 17 adopted the Constitution of the United States. Aside from Article VI, which stated that "no religious Test shall ever be required as Qualification" for federal office holders, the Constitution said little about religion. Its reserve troubled two groups of Americans--those who wanted the new instrument of government to give faith a larger role and those who feared that it would do so. This latter group, worried that the Constitution did not prohibit the kind of state-supported religion that had flourished in some colonies, exerted pressure on the members of the First Federal Congress. In September 1789 the Congress adopted the First Amendment to the Constitution, which, when ratified by the required number of states in December 1791, forbade Congress to make any law "respecting an establishment of religion."

The first two Presidents of the United States were patrons of religion--George Washington was an Episcopal vestryman, and John Adams described himself as "a church going animal." Both offered strong rhetorical support for religion. In his Farewell Address of September 1796, Washington called religion, as the source of morality, "a necessary spring of popular government," while Adams claimed that statesmen "may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand." Thomas Jefferson and James Madison, the third and fourth Presidents, are generally considered less hospitable to religion than their predecessors, but evidence presented in this section shows that, while in office, both offered religion powerful symbolic support.

Religion and the Constitution

When the Constitution was submitted to the American public, "many pious people" complained that the document had slighted God, for it contained "no recognition of his mercies to us . . . or even of his existence." The Constitution was reticent about religion for two reasons: first, many delegates were committed federalists, who believed that the power to legislate on religion, if it existed at all, lay within the domain of the state, not the national, governments; second, the delegates believed that it would be a tactical mistake to introduce such a politically controversial issue as religion into the Constitution. The only "religious clause" in the document--the proscription of religious tests as qualifications for federal office in Article Six--was intended to defuse controversy by disarming potential critics who might claim religious discrimination in eligibility for public office.

That religion was not otherwise addressed in the Constitution did not make it an "irreligious" document any more than the Articles of Confederation was an "irreligious" document. The Constitution dealt with the church precisely as the Articles had, thereby maintaining, at the national level, the religious status quo. In neither document did the people yield any explicit power to act in the field of religion. But the absence of expressed powers did not prevent either the Continental-Confederation Congress or the Congress under the Constitution from sponsoring a program to support general, nonsectarian religion.

Franklin Requests Prayers in the Constitutional Convention

Benjamin Franklin delivered this famous speech, asking that the Convention begin each day's session with prayers, at a particularly contentious period, when it appeared that the Convention might break up over its failure to resolve the dispute between the large and small states over representation in the new government. The eighty one year old Franklin asserted that "the longer I live, the more convincing proofs I see of this Truth--that God governs in the Affairs of Men." "I also believe," Franklin continued, that "without his concurring Aid, we shall succeed in this political Building no better than the Builders of Babel." Franklin's motion failed, ostensibly because the Convention had no funds to pay local clergymen to act as chaplains.

Speech to the Constitutional Convention, June 28, 1787 . Benjamin Franklin, Holograph manuscript. Manuscript Division , Library of Congress (145)

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Prohibition of Religious Tests

The language prohibiting religious tests as a qualification for federal office holders, ultimately incorporated into Article Six of the Constitution, was proposed by Charles Pinckney of South Carolina on August 20, 1787, and adopted by the full Convention on August 30. Here we see the language as it was added to the first working draft of the Constitution, the so-called Committee of Detail report of August 6, 1787, by the Convention secretary, William Jackson.

Constitution of the United States (William Jackson Copy), Committee of Detail report . Broadside, August 6, 1787. Manuscript Division , Library of Congress (146)

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Religion and the Bill of Rights

Many Americans were disappointed that the Constitution did not contain a bill of rights that would explicitly enumerate the rights of American citizens and enable courts and public opinion to protect these rights from an oppressive government. Supporters of a bill of rights permitted the Constitution to be adopted with the understanding that the first Congress under the new government would attempt to add a bill of rights.

James Madison took the lead in steering such a bill through the First Federal Congress, which convened in the spring of 1789. The Virginia Ratifying Convention and Madison's constituents, among whom were large numbers of Baptists who wanted freedom of religion secured, expected him to push for a bill of rights. On September 28, 1789, both houses of Congress voted to send twelve amendments to the states. In December 1791, those ratified by the requisite three fourths of the states became the first ten amendments to the Constitution. Religion was addressed in the First Amendment in the following familiar words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In notes for his June 8, 1789, speech introducing the Bill of Rights, Madison indicated his opposition to a "national" religion. Most Americans agreed that the federal government must not pick out one religion and give it exclusive financial and legal support.

Proposed Constitutional Amendments

The Virginia Ratifying Convention approved the Constitution with the understanding that the state's representatives in the First Federal Congress would try to procure amendments that the Convention recommended. The twentieth proposed amendment deals with religion; it is an adaptation of the final article in the Virginia Declaration of Rights of 1776 with this additional phrase: "that no particular religious sect or society ought to be favored or established by Law in preference to others."

Proposed amendments to the Constitution of the United States . [page one] - [ Proposed amendments to the Constitution of the United States . Page two. Virginia Ratifying Convention, Broadside, June 25, 1788. Rare Book and Special Collections Division, Library of Congress (147) //www.loc.gov/exhibits/religion/vc006498.jpg ">page two ] - [ Proposed amendments to the Constitution of the United States . Page three. Virginia Ratifying Convention, Broadside, June 25, 1788. Rare Book and Special Collections Division, Library of Congress (147) //www.loc.gov/exhibits/religion/vc006499.jpg ">page three ] - [ Proposed amendments to the Constitution of the United States . Page four. Virginia Ratifying Convention, Broadside, June 25, 1788. Rare Book and Special Collections Division, Library of Congress (147) //www.loc.gov/exhibits/religion/vc006500.jpg ">page four ] Virginia Ratifying Convention, Broadside, June 25, 1788. Rare Book and Special Collections Division , Library of Congress (147)

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Baptist Preacher's Objections to the Constitution

The influential Baptist preacher, John Leland, wrote a letter, containing ten objections to the Federal Constitution, and sent it to Colonel Thomas Barbour, an opponent of the Constitution in James Madison's Orange County district. Leland's objections were copied by Captain Joseph Spencer, one of Madison's Baptist friends, and sent to Madison so that he could refute the arguments. Leland's final objection was that the new constitution did not sufficiently secure "What is dearest of all---Religious Liberty." His chief worry was "if a Majority of Congress with the President favour one System more than another, they may oblige all others to pay to the support of their System as much as they please."

Objections to the Federal Constitution, [February 1788] . [page one] - [ Objections to the Federal Constitution, [February 1788] . Page two. John Leland. Manuscript Division, Library of Congress (148) //www.loc.gov/exhibits/religion/vc006654.jpg ">page two ] John Leland. Manuscript Division , Library of Congress (148)

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Madison's Notes for the Bill of Rights

Madison used this outline to guide him in delivering his speech introducing the Bill of Rights into the First Congress on June 8, 1789. Madison proposed an amendment to assuage the anxieties of those who feared that religious freedom would be endangered by the unamended Constitution. According to The Congressional Register Madison , on June 8, moved that "the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed."

Notes for a speech introducing the Bill of Rights, [June 8, 1789] . [page one] - [ Notes for a speech introducing the Bill of Rights, [June 8, 1789] . Page two. James Madison, Holograph notes. Manuscript Division, Library of Congress (149) //www.loc.gov/exhibits/religion/vc006644.jpg ">page two ] James Madison, Holograph notes. Manuscript Division , Library of Congress (149)

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The Bill of Rights

The necessary two thirds majority in each house of Congress ratified the Bill of Rights on September 28, 1789. As sent to the states for approval, the Bill of Rights contained twelve proposed amendments to the Constitution. Amendments One and Two did not receive the required approval of three fourths of the states. As a result, Article Three in the original Bill of Rights became the First Amendment to the Constitution. This copy on vellum was signed by Speaker of the House Frederick Muhlenberg, Vice President John Adams, and Secretary of State Samuel Otis.

The Bill of Rights (the John Beckley copy) September 28, 1789 . Holograph manuscript on vellum. Manuscript Division , Library of Congress (150)

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The Rhetorical Support of Religion: Washington and Adams

The country's first two presidents, George Washington and John Adams, were firm believers in the importance of religion for republican government. As citizens of Virginia and Massachusetts, both were sympathetic to general religious taxes being paid by the citizens of their respective states to the churches of their choice. However both statesmen would have discouraged such a measure at the national level because of its divisiveness. They confined themselves to promoting religion rhetorically, offering frequent testimonials to its importance in building the moral character of American citizens, that, they believed, undergirded public order and successful popular government.

George Washington, Episcopal Vestryman

Washington was for many years a vestryman at Truro Parish, his local Episcopal Church. The entry of June 5, 1772, shows Washington and his neighbor, George Mason, the author of the Virginia Declaration of Rights, engaged in parish business, including making arrangements for replacing the front steps of the church, painting its roof and selling church pews to the members as a means of obtaining revenue. The minutes of the meeting also reveal that Washington and George William Fairfax presented the parish with gold leaf to be used to gild letters on "Carved Ornaments" on the altar.

The Vestry Book of Truro Parish, Virginia, 1732-1802 . Manuscript volume. Manuscript Division , Library of Congress (152)

George Washington . Chalk drawing on paper, ca. 1800, by St. Memin. Prints and Photograph Division , Library of Congress (151)

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Washington's Prayer

The draft of the circular letter is in the hand of a secretary, although the signature is Washington's. Some have called this concluding paragraph "Washington's Prayer." In it, he asked God to: "dispose us all, to do Justice, to love mercy, and to demean ourselves with that Charity, humility and pacific temper of mind, which were the Characteristicks of the Divine Author of our blessed Religion, and without an humble imitation of whose example in these things, we can never hope to be a happy Nation."

Circular to the chief executives of the states, June 11, 1783 . George Washington, Manuscript. Manuscript Division , Library of Congress (153)

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"To Bigotry no Sanction"

President George Washington and a group of public officials, including Secretary of State Thomas Jefferson, left New York City, the temporary capital of the United States, on August 15, 1790, for a brief tour of Rhode Island. At Newport, Washington received an address of congratulations from the congregation of the Touro Synagogue. His famous answer, assuring his fellow citizens "of the Stock of Abraham" that the new American republic would give "to bigotry no sanction, to persecution not assistance," is seen here in the copy from Washington's letterbook.

George Washington to the Hebrew Congregation in New Port, Rhode Island . [page one] - [ George Washington to the Hebrew Congregation in New Port, Rhode Island . Page two. Manuscript copy, Letterbook 1790-1794. Manuscript Division. Library of Congress (154) //www.loc.gov/exhibits/religion/vc006485.jpg ">page two ] Manuscript copy, Letterbook 1790-1794. Manuscript Division . Library of Congress (154)

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Washington's Farewell Address

George Washington's Farewell Address is one of the most important documents in American history. Recommendations made in it by the first president, particularly in the field of foreign affairs, have exerted a strong and continuing influence on American statesmen and politicians. The address, in which Washington informed the American people that he would not seek a third term and offered advice on the country's future policies, was published on September 19, 1796, in David Claypoole's American Daily Advertiser . It was immediately reprinted in newspapers and as a pamphlet throughout the United States. The address was drafted in July 1796 by Alexander Hamilton and revised for publication by the president himself. Washington also had at his disposal an earlier draft by James Madison.

The "religion section" of the address was for many years as familiar to Americans as was Washington's warning that the United States should avoid entangling alliances with foreign nations. Washington's observations on the relation of religion to government were commonplace, and similar statements abound in documents from the founding period. Washington's prestige, however, gave his views a special authority with his fellow citizens and caused them to be repeated in political discourse well into the nineteenth century.

Hamilton's Draft of Washington's Farewell Address

George Washington's Farewell Address was drafted by Alexander Hamilton who made a stronger case for the necessity of religious faith as a prop for popular government than Washington was willing to accept. Washington incorporated Hamilton's assertion that it was unreasonable to suppose that "national morality can be maintained in exclusion of religious principle," but declined to add Hamilton's next sentence, written in the left margin of this page: "does it [national morality] not require the aid of a generally received and divinely authoritative Religion?"

Draft of Washington's Farewell Address, [July] 1796 . Alexander Hamilton. Manuscript Division , Library of Congress (155)

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The Farewell Address

In his Farewell Address, the first president advised his fellow citizens that "Religion and morality" were the "great Pillars of human happiness, these firmest props of the duties of Men and citizens." "National morality," he added, could not exist "in exclusion of religious principle." "Virtue or morality," he concluded, as the products of religion, were "a necessary spring of popular government." The "religion section" is located in the lower right portion of page one and continues to the upper right portion of page two.

The Farewell Address . [page one] - [ The Farewell Address . Page two. George Washington, Broadside. Rare Book and Special Collections Division, Library of Congress (156) //www.loc.gov/exhibits/religion/vc006506.jpg ">page two ] - [ The Farewell Address . Page three. George Washington, Broadside. Rare Book and Special Collections Division, Library of Congress (156) //www.loc.gov/exhibits/religion/vc006507.jpg ">page three ] George Washington, Broadside. Rare Book and Special Collections Division , Library of Congress (156)

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Adams on Religion

John Adams, a self-confessed "church going animal," grew up in the Congregational Church in Braintree, Massachusetts. By the time he wrote this letter his theological position can best be described as Unitarian. In this letter Adams tells Jefferson that "Without Religion this World would be Something not fit to be mentioned in polite Company, I mean Hell."

John Adams to Thomas Jefferson, April 19, 1817 . [page one] - [ John Adams to Thomas Jefferson, April 19, 1817 . Page two. Holograph letter. Manuscript Division, Library of Congress (157) //www.loc.gov/exhibits/religion/vc006646.jpg ">page two ] - [ John Adams to Thomas Jefferson, April 19, 1817 . Page three. Holograph letter. Manuscript Division, Library of Congress (157) //www.loc.gov/exhibits/religion/vc006647.jpg ">page three ] - [ John Adams to Thomas Jefferson, April 19, 1817 . Page four. Holograph letter. Manuscript Division, Library of Congress (157) //www.loc.gov/exhibits/religion/vc006648.jpg ">page four ] Holograph letter. Manuscript Division , Library of Congress (157)

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Adams's Fast Day Proclamation

John Adams continued the practice, begun in 1775 and adopted under the new federal government by Washington, of issuing fast and thanksgiving day proclamations. In this proclamation, issued at a time when the nation appeared to be on the brink of a war with France, Adams urged the citizens to "acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation; beseeching him at the same time, of His infinite grace, through the Redeemer of the World, freely to remit all our offences, and to incline us, by His Holy Spirit, to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction."

Fast Day Proclamation, March 23, 1798 . John Adams. Broadside. Rare Book and Special Collections Division , Library of Congress (158)

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Thomas Jefferson's Monticello

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Thomas Jefferson and Religious Freedom

Thomas Jefferson has been closely associated with religious freedom for more than two centuries. In the first Supreme Court case addressing the religion clauses of the First Amendment,  Reynolds v. United States , the Court unanimously agreed that Jefferson’s  Statute for Religious Freedom  “defined” religious liberty and “the true distinction between what properly belongs to the church and what to the State.” [1]

Jefferson’s commitment to religious freedom grew from several inter-related sources.

For Jefferson, an Enlightenment rationalist, reason had to govern in all areas, including religion. “For the use of … reason… every one is responsible to the God who has planted it in his breast, as a light for his guidance, and that, by which alone he will be judged,” Jefferson explained. [2]   His declaration to Benjamin Rush that “I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man,” was made in the context of religious freedom: any government effort to control religious beliefs was “tyranny over the mind of man.” [3]

Politically, Jefferson believed that the new nation required complete religious freedom and separation of church and state. Many historians note that the broad diversity of ethnicities and religions in the thirteen colonies meant that religious freedom was necessary if the union was to be successful. This is true, but for Jefferson the political necessity of religious freedom went further. Before the Revolution, Virginia had an official church – the Church of England – and dissenters from that Church (primarily Presbyterians and Baptists) were discriminated against and seriously persecuted. This deeply disturbed Jefferson. Later in life, Jefferson referred to the early battles in this conflict as “the severest contests in which I have ever been engaged.” Ultimately, this political controversy resulted in the adoption of the  Virginia Statute for Religious Freedom , one of the three items that Jefferson wished to have preserved on his  grave marker . [4]

Jefferson saw religious freedom as essential for a functioning republic. Without religious freedom and a strict separation of church and state, “kings, nobles, and priests” threatened to create a dangerous aristocracy. As Peter Onuf explains, “Jefferson defined the old regime as an unholy alliance of ‘kings, nobles, and priests’ that divided the people in order to rule them. Jefferson’s Bill for Religious Freedom, … [made] possible the progressive development of that ‘entire union of opinion’ that alone could guarantee the survival of republican government.” [5]

Third, there may also have been a strong theological reason, shared with many dissenters, for Jefferson to insist upon religious freedom and separation of church and state. Many believed that while God desired human worship, devotions had to be completely a free will offering, not demanded or encouraged by temporal concerns (be that parents, society, or, certainly, government). Thus, John Leland, the great eighteenth century Baptist preacher, insisted that government must not give “indulgence, preferment, or even protection” to religion. [6] Baptists of Buckingham County warned that government leaving churches alone “is the only way to convince the gazing world, that Disciples do not follow Christ for Loaves, and that Preachers do not preach for Benefices.” [7]   Given  Jefferson’s devout theism  and belief that his relationship with God was a very personal matter, his declaration 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” might be read in this context. [8]

Jefferson’s  Statute for Religious Freedom  and its history demonstrates the nature of Jefferson’s commitment. After the American Revolution, there was a strong effort in Virginia to reinstitute church taxes to promote religion, led by Patrick Henry and supported by Edmund Pendleton, Spencer Roane, Benjamin Harrison, John Marshall, and Richard Henry Lee among others. That effort almost succeeded in having a General Assessment adopted - a tax to benefit all Christian sects. This proposal was opposed by James Madison and, in absentia, Jefferson (serving in  Paris  as ambassador). Beating back the effort to impose religious taxes in a sometimes bitter legislative battle, the triumphant Madison was able to have Jefferson’s Statute adopted, one of the great successes of Jefferson’s life. Jefferson reported triumphantly that the legislative effort to insert “Jesus Christ” in the preamble to the Virginia Statute was defeated, establishing that religious freedom was “meant to comprehend, within the mantle of it’s protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo and infidel of every denomination.” [9]

Jefferson’s demand for strict separation and religious freedom does not mean that he was irreligious. In fact, this canard irritated Jefferson. He explained:

the priests indeed have heretofore thought proper to ascribe to me religious, or rather antireligious sentiments, of their own fabric, but such as soothed their resentments against the Act of Virginia for establishing religious freedom. they wished him to be thought Atheist, Deist, or Devil, who could advocate freedom from their religious dictations. but I have ever thought religion a concern purely between our god and our consciences, for which we were accountable to him, and not to the priests. [10]

Jefferson wanted a strict separation of church and state, but he fully expected a vibrant, public religion on the “other” (non-governmental) side of that wall.

Controversies: Historical and Modern

Proclamation/public prayer.

It is often remarked that Jefferson was involved with several government proclamations of a day of prayer. In the first, in 1774, Jefferson was among a group of young patriots who proposed a day of fasting and prayer in response to the British imposition of the Intolerable Acts after the Boston Tea Party, but he later referred to this as a proclamation “cooked up” for political reasons. [11]   The second incident occurred when Jefferson was governor and accepted the Continental Congress’s request that each governor issue a proclamation for a day of prayer.

A mature Jefferson believed that any official call to prayer was unconstitutional and a violation of the separation of church and state. When President Jefferson was heavily criticized for refusing to issue a prayer proclamation during a national crisis (as both of his predecessors had done), he explained that his refusal

results … from the provision that no law shall be made respecting the establishment, or free exercise, of religion, … But it is only proposed that I should recommend, not prescribe a day of fasting & prayer…. It must be meant that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion…. I do not believe it is for the interest of religion to invite the civil magistrate to direct it’s exercises, it’s discipline, or it’s doctrine…. [12]

Jefferson believed it violated the First Amendment for government to even create a “degree of proscription … in public opinion.” In other words, the government could not even imply that “good citizens” or “patriotic citizens” were religious.

Yet, Jefferson prayed publicly in both of his inaugural addresses. For Jefferson, there was a clear distinction between a particular official making a public, but personal, profession of faith and an “official” endorsement or call to prayer. Thus, Jefferson referred to the claim that he wished “government without religion” as a “slander;” not only did he expect a vibrant religion on the “private” side of a wall of separation, but he fully expected that most government officials would be, in their private capacity, religious. [13]

USE OF PUBLIC FACILITIES (INCLUDING UVA) FOR RELIGIOUS PURPOSES

As president, Jefferson often attended Sunday church services in the House of Representatives building. (The House leadership had authorized the use of the building by different denominations and for some civic functions when Congress was not meeting.) In retirement, he attended church services in the Albemarle Courthouse (which rotated services among the local ministers of different denominations). This, too, has led to the suggestion that Jefferson did not really support a strict separation of church and state.

Jefferson’s views on use of public facilities for religious purposes can best be understood in the context of the treatment of religion at his beloved  University of Virginia , a public institution.

While UVA was still in a planning phase, and state funding had not yet been fully obtained, Jefferson’s plan was heavily criticized because he did not wish to have a professor of theology (inevitably a minister) or a chapel. Faced with a threat to funding for the university because of this omission, Jefferson had the board of visitors recommend that while the state would not itself establish a religious institution, various sects could create “religious schools on the confines of the University, … enabling the Students … to attend religious exercises with the Professor of their particular sect…” He added emphatically, though, that this was done “always understanding that these schools shall be independent of the University.” There would also be a building (the Rotunda) which, “under impartial regulations,” could be used for religious exercises and other activities when not otherwise in use. [14]

After funding was obtained, and with the legislature having taken no official action on the proposal for private seminaries, both Jefferson and Madison seemed to retreat somewhat from their conciliatory proposal and to take a firmer position on separation. For example, with the financial threat to the school removed, they suggested that private religious schools might be established “near” grounds, but not actually on the university’s property. Similarly, Jefferson later argued that “the buildings of the Univ. belong to the State, that they were erected for the purposes of an University and that the Visitors … have no right to permit their application for any other,” and refused to allow any religious services in the Rotunda during his lifetime. [15]

How, then, can Jefferson’s participation in religious services in public buildings and insistence on separation of church and state in the case of UVA be reconciled?

Jefferson’s earlier suggestion that the public facilities at UVA might be used by religious organizations “under impartial regulations” may be the key to understanding his views. In an important precedent, in 1995 the Supreme Court ruled that UVA had to be neutral between religious and nonreligious activities on campus; since UVA provided funding for a host of different student organizations, it could not deny funding to a student religious organization. [16]   Perhaps Jefferson saw something similar at work in the case of the use of public buildings for Sunday worship: while the House of Representatives could not single out religious services (or a particular sect) for use of its building, since it allowed the building to be used by various organizations when Congress was not in session, it could not discriminate against religion.

RELIGIOUS EXEMPTIONS FROM LAWS

Noting a difference between beliefs – which are exempt from government regulations – and actions – which can be regulated by government for the general welfare – Jefferson rejected claims that a person’s religious beliefs justified an exemption from a “neutral” law (i.e. one that did not directly regulate religion). He addressed this issue at some length:

whatsoever is lawful in the Commonwealth … cannot be forbidden to him for religious uses; & whatsoever is prejudicial to the commonwealth in their ordinary uses & therefore prohibited by the laws, ought not to be permitted to churches in their sacred rites. for instance, it is unlawful in the ordinary course of things or in a private house to murder a child. it should not be permitted any sect then to sacrifice children: it is ordinarily lawful (or temporarily lawful) to kill calves or lambs. they may therefore be religiously sacrificed. but if the good of the state required a temporary suspension of killing lambs (as during a siege); sacrifice of them may then be rightfully suspended also… if any thing pass in a religious meeting seditiously & contrary to the public peace, let it be punished in the same manner & no otherwise than as if it had happened in a fair or market. [17]

The  Virginia Statute for Religious Freedom  makes the same point:

to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty… it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order….

Discussing the new Constitution and a possible Bill of Rights, Jefferson wrote to Madison that “The declaration that religious faith shall be unpunished does not give immunity to criminal acts dictated by religious error.” His insistence that there be no religious exemption from neutral laws does not apply to direct efforts to regulate religion (whether expressly or implicitly) which would themselves be unconstitutional. Thus, Jefferson might note that when evangelical dissenters in Virginia were arrested for disturbing the peace before the Revolution, they were not seeking a religious exemption but, rather, neutrality in the enforcement of the law. [18]

ADDITIONAL QUOTES

“Believing 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, & 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 separation between Church & State.” [8]

“If the freedom of religion, guaranteed to us by law in theory, can ever rise in practice under the overbearing inquisition of public opinion, truth will prevail over fanaticism, and the genuine doctrines of Jesus, so long perverted by His pseudo-priests, will again be restored to their original purity. This reformation will advance with the other improvements of the human mind.” [20]

“But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. ... Reason and free enquiry are the only effectual agents against error.” [21]

“Perhaps the single thing which may be required to others before toleration to them would be an oath that they would allow toleration to others.” [22]

- John Ragosta, 4/16/18

Further Sources

• Adams, Dickinson W., et al., eds.  J efferson's Extracts from the Gospels: "The Philosophy of Jesus" and "The Life and Morals of Jesus."  Princeton, NJ: Princeton University Press, 1983.
• Brenner, Lenni, ed.  Jefferson & Madison on Separation of Church and State: Writings on Religion and Secularism . Fort Lee, NJ: Barricade Books, 2004.
• Buckley, Thomas E.  Church and State in Revolutionary Virginia, 1776-1787 . Charlottesville, VA: University Press of Virginia, 1977.
• ———.  Establishing Religious Freedom: Jefferson’s Statute in Virginia . Charlottesville, VA: University of Virginia Press, 2013.
• Church, F. Forrester.  So Help Me God: The Founding Fathers and the First Great Battle Over Church and State . Orlando, FL: Harcourt, 2007.
• Fatton, Robert, Jr. and R.K. Ramazani, eds.  Religion, State, and Society: Jefferson’s Wall of Separation in Comparative Perspective . New York: Palgrave Macmillan, 2009.
• Gaustad, Edwin S.  Faith of the Founders: Religion and the New Nation 1776-1826 . Waco, TX: Baylor University Press, 2004.
• Green, Steven K.  The Second Disestablishment: Church and State in Nineteenth-Century America . New York: Oxford University Press, 2010.
• Mapp, Alfred J., Jr.  The Faiths of Our Fathers: What America’s Founders Really Believed . Lanham, MD: Rowman & Littlefield, 2003.
• McGarvie, Mark Douglas.  One Nation Under Law: America’s Early National Struggles to Separate Church and State . DeKalb, IL: Northern Illinois University Press, 2004.
• Meacham, Jon.  American Gospel: God, the Founding Fathers, and the Making of a Nation . New York: Random House, 2006.
• Meyerson, Michael.  Endowed by Our Creator: The Birth of Religious Freedom in America . New Haven, CT: Yale University Press, 2012.
• Peterson, Merrill D., and Robert C. Vaughan, eds.  The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History . Cambridge: Cambridge University Press, 1988.
• Ragosta, John.  Religious Freedom: Jefferson’s Legacy, America’s Creed . Charlottesville, VA: University of Virginia Press, 2014.
• ———.  Wellspring of Liberty: How Virginia’s Religious Dissenters Helped to Win the American Revolution and Secured Religious Liberty . New York: Oxford University Press, 2010.
• Sheridant, Eugene R.  Jefferson and Religion . Charlottesville, VA: Thomas Jefferson Memorial Foundation, 1998.
• Waldman, Steven.  Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America . New York: Random House, 2008.
• ^ Reynolds v. United States , 98 U.S. 145, 163 (1879).
• ^ Jefferson to William Carver, December 4, 1823, in  Ford  10:285.  Transcription  available at Founders Online.
• ^ Jefferson to Benjamin Rush, September 23, 1800, in  PTJ , 32:168.  Transcription  available at Founders Online.
• ^ Jefferson, Autobiography (1821), Ford 1:53.  Transcription  available at Founders Online.
• ^ Peter Onuf, “Thomas Jefferson’s Christian Nation,” in  Religion, State, and Society: Jefferson’s Wall of Separation in Comparative Perspective , edited by Robert Fatton Jr. and R. K. Ramazani (New York: Palgrave MacMillan, 2009): 22, quoting  Jefferson to George Wythe, August 13, 1786  (emphasis Onuf).
• ^ John Leland,  The Virginia Chronicle: With Judicious and Critical Remarks on XXIV Heads  (Fredericksburg, VA: Printed by T. Green, 1790), 24.
• ^ Quoted in H. J. Eckenrode,  Separation of Church and State in Virginia: A Study in the Development of the Revolution  (Richmond: Virginia State Library, 1910), 119.
• ^ Jefferson to Danbury Baptists, January 1, 1802, in  PTJ ,  36:258.  Transcription  available at Founders Online.
• ^ Jefferson, Autobiography, 1821, Ford 1:62.  Transcription  available at Founders Online.
• ^ Jefferson to Margaret Bayard Smith, August 6, 1816, in  PTJ:RS , 10:301.  Transcription  available at Founders Online.
• ^ Jefferson, Autobiography,  Ford  1:10.  Transcription  available at Founders Online.
• ^ Jefferson to Rev. Samuel Miller, January 23, 1808,  Ford 9:174-75.  Transcription  available at Founders Online. Madison, under considerable political pressure during his presidency, did issue prayer proclamations at Congress’ request, but later expressed his belief that they were unconstitutional. James Madison, “Detatched Memoranda,” in  The Papers of James Madison, Retirement Series , ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Anne Mandeville Colony (Charlottesville, VA: University of Virginia Press, 2009-) 1:600–627.  Transcription  available at Founders Online.
• ^ Jefferson to DeWitt Clinton, May 24, 1807, in  Ford  9:63.  Transcription  available at Founders Online.
• ^ Jefferson, Minutes of the Board of Visitors, October 7, 1822, in  L&B , 19:414-16.  Transcription  available at Founders Online.
• ^ Madison to Edward Everett, March 19, 1823, in The Papers of James Madison, Retirement Series, ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Katherine E. Harbury (Charlottesville, VA: University of Virginia Press, 2016), 3:15–18.  Transcription  available at Founders Online.  Jefferson to Arthur Spicer Brockenbrough, April 21, 1825 , Thomas Jefferson Papers, Library of Congress.  Transcription  available at Founders Online.
• ^ Rosenberger v. Rector and Visitors of the University of Virginia , 515 U.S. 819 (1995).
• ^ Jefferson, Notes on Locke & Shaftesbury, October 11-December 9, 1776, in  PTJ , 1:547-48.  Transcription  available at Founders Online.
• ^ Jefferson to Madison, July 31, 1788, in  PTJ , 13:442-43.  Transcription  available at Founders Online.
• ^ Jefferson to Jared Sparks, November 4, 1820, in  L&B , 15:288.  Transcription  available at Founders Online.
• ^ Jefferson, Notes on the State of Virginia, Query XVII, in  Notes , ed. Peden , 159.

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Why Does Religious Freedom Matter?

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Religious liberty and a thriving religious culture are defining attributes of the United States, characterizing the American order as much as its political system and market economy. [1] From the earliest settlements of the 17th century to the great social reform causes led by religious congregations in the late 19th century and again in the 20th century, religion has been a dominant theme of American life.

Today, almost 90 percent of Americans say that religion is at least “somewhat important” in their lives. [2] About 60 percent are members of a local religious congregation. [3] Faith-based organizations are extremely active in providing for social needs at home and in sending aid abroad.

Why does religious liberty matter—to America and to the world?

Freedom of religion is a cornerstone of the American experiment. That is because religious faith is not merely a matter of “toleration” but is understood to be the exercise of “inherent natural rights.” As George Washington once observed: “[T]he Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.” And “what is here a right towards men, is a duty towards the Creator,” James Madison wrote in his 1786 Memorial and Remonstrance . “This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”

The model of religious liberty brilliantly designed by Madison and the other American Founders is central to the success of the American experiment. It is essential to America’s continued pursuit of the ideals stated in the Declaration of Independence, the ordered liberty embodied in the Constitution, and peace and stability around the world.

The key to America’s religious liberty success story is its constitutional order. The Founders argued that virtue derived from religion is indispensable to limited government. The Constitution therefore guaranteed religious free exercise while prohibiting the establishment of a national religion. This Constitutional order produced a constructive relationship between religion and state that balances citizens’ dual allegiances to God and earthly authorities without forcing believers to abandon (or moderate) their primary loyalty to God.

This reconciling of civil and religious authorities, and the creation of a Constitutional order that gave freedom to competing religious groups, helped develop a popular spirit of self-government. All the while, religious congregations, family, and other private associations exercise moral authority that is essential to maintaining limited government. The American Founders frequently stated that virtue and religion are essential to maintaining a free society because they preserve “the moral conditions of freedom.” [4]

Religion and good morals are the only solid foundation of public liberty and happiness. – Samuel Adams October 16, 1778

Today, the religious roots of the American order and the role of religion in its continued success are poorly understood. One source of the confusion is the phrase “separation of church and state,” a phrase used by President Thomas Jefferson in a widely misunderstood letter to the Danbury Baptist Association of Connecticut in 1802. [5] Many think this means a radical separation of religion and politics. Some have gone so far as to suggest that religion should be entirely personal and private, kept out of public life and institutions like public schools.

That is incorrect: Jefferson wanted to protect states’ freedom of religion from federal government control and religious groups’ freedom to tend to their internal matters of faith and practice without government interference generally. Unfortunately, Jefferson’s phrase is probably more widely known than the actual text of the Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The American model of religious liberty takes a strongly positive view of religious practice, both private and public. While it does not mean that anything and everything done in the name of religious liberty is not subject to the rule of law, it does mean that the law ought to make as much room as possible for the practice of religious faith. Far from privatizing religion, it assumes that religious believers and institutions will take active roles in society, including engaging in politics and policy-making and helping form the public’s moral consensus. In fact, the American Founders considered religious engagement in shaping the public morality essential to ordered liberty and the success of their experiment in self-government.

Defying predictions that political and social progress would eventually marginalize religion, religious belief and practice remain widespread and vibrant around the world.

“The very things that were supposed to destroy religion—democracy and markets, technology and reason—are combining to make it stronger,” write the authors of a book about religion’s persistence in culture and politics around the world. [6]

In this era—as in all prior human history—God has occupied the thoughts of man. Conscience, the mystery of existence, and the prospect of death challenge every human being to grapple with questions of transcendence and divine reality.

Religious freedom recognizes the right of all people to pursue these transcendent ends. This right is granted not by government but by the Creator. By respecting it, a government acknowledges that such ultimate issues are outside its jurisdiction, and that conscience is answerable to a higher authority than the law of the land. Individuals and institutions should be free to believe and to act in response to divine reality.

Because religious liberty is the bedrock for all human freedom, it provides a sturdy foundation for limited government. Liberty of conscience demands, and ultimately justifies, limited government.

Conversely, limited government requires individual responsibility. Freedom engages the moral responsibility of each and every person. In a free society, religion is an ally of good government as it forms the moral character of individuals and communities.

Religious freedom is a fundamental human right that ought to be enjoyed by the people of all nations. This principle has been recognized in the 1948 Universal Declaration of Human Rights and subsequent international agreements. Despite widespread recognition, many people are unable to exercise this basic liberty.

Even with religion’s global prevalence, religious freedom is far from universally respected. About a third of the world’s nations restrict religion to a high or very high degree, according to the Pew Forum on Religion & Public Life. Seventy percent of the world’s population lives in these countries. [7]

In some cases, totalitarian governments have oppressed religious individuals and groups generally. In others, statist regimes built on an established religion have persecuted religious minorities.

Countries designated by the U.S. State Department as “countries of particular concern” because they restrict religious freedom (such as North Korea, Iran, and Burma) suffer in other ways as well. They also tend to have the least economic liberty—and some of the worst economic outcomes.

On the other hand, governments that respect religious liberty tend to respect other freedoms as well. Religious freedom is strongly related to political liberty, economic freedom, and prosperity. As one researcher of international religious liberty notes, “[W]herever religious freedom is high, there tends to be fewer incidents of armed conflict, better health outcomes, higher levels of earned income, and better educational opportunities for women.” [8]

The 1998 International Religious Freedom Act made religious liberty an official part of U.S. foreign policy. The United States committed to promote freedom of religion as “a fundamental human right and as a source of stability for all countries” and to “identify and denounce regimes” that engage in persecution on the basis of religion.

Condemning and curtailing religious persecution is a critical goal, but religious freedom includes much more. Our vision of religious liberty must be robust.

Attempts to relegate religion to private life or to prevent religious institutions from conducting their business according to their beliefs threaten this fundamental freedom. Religious individuals and institutions should be free to exercise their religious belief within their private spheres as well as to engage publicly on the basis of religion. Believers should be free to persuade others to embrace their beliefs. Individuals should be able to leave or change their religion without fear of reprisal, and all should have the right to protection under the rule of law regardless of belief.

The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the state, and never its tool. – Martin Luther King, Jr. 1963

The most secure and consistent protection for religious liberty needs to be rooted in constitutional government. U.S. public diplomacy can support the development of such robust religious freedom by telling America’s success story.

That requires that U.S. policymakers understand and be able to articulate the role of religion in the American constitutional order. In the 21st-century war of ideas, U.S. public diplomacy must rely on the bedrock of American founding principles in the fight against potent ideologies that present strong, coherent, and deeply misguided explanations of the nature and purpose of human existence. Evaluating religious dynamics around the world should become a regular function of analysis, and articulating the role of religion in the U.S. should be a consistent feature of communications strategy.

Religion and traditional morality continue to play a significant role in American public life. Most Americans continue to attach great significance to religious faith and practice, marriage, family, and raising children in a morally rich and supportive environment—values shared in many highly religious societies around the world.

Religious freedom is the birthright of all people, but too few governments around the world acknowledge it and far too many people have never enjoyed it.

One of the gifts of providence to the United States is a Constitution that has successfully safeguarded this fundamental right. It is a gift Americans should cherish and a model for all throughout the world.

Jennifer A. Marshall is Director of the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation .

Enduring Truths

• George Washington, Letter to the Hebrew Congregation at Newport, Rhode Island The first president’s letter to this Hebrew Congregation—and by extension to one of the most persecuted religious groups in world history—eloquently articulates the American position that religious liberty is not merely a matter of tolerance but is an inherent right to be guaranteed by government.
• Gerard V. Bradley, Religious Liberty in the American Republic In this monograph, Bradley explains the Founders’ view of the relationship between religion and politics, and demonstrates how the Supreme Court radically deviated from this view in embarking on a project aimed at the secularization of American politics and society.
• J. D. Foster and Jennifer A. Marshall, “ Freedom Economics and Human Dignity ” The way we talk about freedom in the economic sphere tends to overlook the aspects of human experience that transcend the material. This essay explains how economic freedom helps order our lives together in a way that reflects the nature of man, the purpose of human life, and the satisfying of material needs and wants.

Current Issues

• PROMOTING RELIGIOUS LIBERTY. Thomas Farr, Ph.D. and Ambassador Terry Miller, “ Diplomacy in an Age of Faith: How Failing to Understand the Role of Religion Hinders America’s Purposes in the World ,” December 17, 2008. Farr and Miller argue that the American foreign affairs establishment has failed to grasp the significance of the resurgence of public religion around the world. As a result, it has missed an opportunity to incorporate the advancement of international religious freedom and the promotion of religious liberty into the general freedom agenda. This missed opportunity has harmed our interests.
• DEFAMATION OF RELIGION. Steven Groves, “ Why the U.S. Should Oppose ‘Defamation of Religions’ Resolution at the United Nations ,” November 10, 2008. The United Nations, with the backing of the Organization of the Islamic Conference, seeks to promote the concept of “defamation of religion,” which would establish an international ban on any speech that would insult, criticize, or disparage any religion. But the First Amendment to the Constitution protects the freedom of religion, which includes the right both to follow a faith and to criticize it. Groves demonstrates that the U.S. must oppose any effort to make “defamation of religion” part of U.S. law, and must resist spread of this concept inside the U.N. system.
• PUBLIC DIPLOMACY. Jennifer A. Marshall, “ Religious Liberty in America: An Idea Worth Sharing Through Public Diplomacy ,” January 15, 2009. U.S. public diplomacy seeks to impart to foreign audiences an understanding and appreciate of American ideals, principles, and institutions. In the United States, religious freedom is compatible with a positive and public role for religion. This is an American success story that should be told around the world. Marshall shows that, if public diplomacy is to play its full role in advancing American interests and ideals, it must systematically address both the role of religion and religious audiences.

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[1] Michael Novak, The Spirit of Democratic Capitalism (New York: Madison Books, 1991), p. 16.

[2] Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey: Religious Beliefs and Practices: Diverse and Politically Relevant,” June 2008, p. 22, at http://religions.pewforum.org/pdf/report2-religious-landscape-study-full.pdf (November 16, 2010).

[3] Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey: Religious Beliefs and Practices: Diverse and Politically Relevant,” pp. 36 and 39.

[4] Thomas G. West, “Religious Liberty,” Claremont Institute, January 1997, at http://www.claremont.org/writings/970101west.html (November 16, 2010).

[5] Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002).

[6] John Micklethwait and Adrian Wooldridge, God Is Back: How the Global Revival of Faith is Changing the World (New York: Penguin, 2009), p. 12.

[7] Pew Forum on Religion & Public Life, “Global Restrictions on Religion,” December 2009, at http://pewforum.org/Government/Global-Restrictions-on-Religion.aspx (December 6, 2010).

[8] Brian Grim, “Religious Freedom: Good for What Ails Us?” The Review of Faith & International Affairs , Vol. 6, No. 2 (Summer 2008).

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First Amendment

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices . It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government .

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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.

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Religious Freedom

by Matthew J. Franck

Federalist Papers referenced in essay:  #’s 1, 2, 10, 23, 47, 51, 52, 55, 84

A. Questions of religion, of religious freedom, and of religious strife are not major themes of the Federalist Papers.  Not a single one of the 85 essays takes up the protection of religious liberty as a distinct subject worthy of a sustained focus.  Yet we know that during this period of American history, from the revolution through the ratification and amendment of the Constitution (1775-1791), the protection of religious liberty, and the proper relationship of religion to politics, were of great concern to the Founders.  Why, then, in the single most important contemporaneous commentary on the Constitution, do the authors have so little to say on this subject? And when the subject is treated—always just in passing—what do the Federalist Papers have to teach us about religious freedom?

  B.  In the midst of the Revolutionary War, after the Continental Congress passed the Declaration of Independence in 1776, most of the thirteen former colonies—now calling themselves states—created new constitutions for themselves.  These replaced royal charters that were now either of no use to them, or fundamentally flawed as charters for self-governing republics. Most of these new state constitutions had something to say on the subject of religion and religious freedom, since most American states exhibited a good deal of religious diversity, and many had been settled by refugees from religious persecution.  Practically all Americans were Christians, though there were a few Jews. Practically all the Christians were Protestants, although there was a substantial Catholic population in Maryland.

C. However, the diversity among the Protestants was considerable, from Episcopalians to Presbyterians to Congregationalists, Dutch Reformed, Methodists, Baptists, and Quakers.  In the politics of the newly independent states, it was vital that all these groups accommodate one another peaceably, and not make their different beliefs the basis of political conflict.  Everyone should therefore be free to worship as he or she saw fit, without being coerced to believe (or pretend to believe) in the doctrines of an official faith. On this much, all were agreed.

D. But, much else was negotiable.  Should officeholding be restricted to Christians, or even more narrowly to Protestants?  (Most of the states had some test of this sort.) Could a state recognize one particular church as privileged over others, even while leaving people otherwise free to worship where and as they please?  Should tax dollars support religious ministries or religious education? If so, should citizens be entitled to direct their own tax dollars to support ministries of their choosing—or to opt out altogether?  To all these questions, the states gave widely different answers.

E. In the state of Virginia, a religious controversy is much remembered today because James Madison was in the thick of it.  The state’s new constitution, adopted in 1776, had a strong statement on religious freedom. As a result, the Episcopal Church, which had served as the established (official) church of the Virginia colony, largely lost its predominant position.  But in 1785, a bill was proposed in the Virginia legislature to support Christian clergymen with tax dollars. Madison successfully opposed it in a petition famously known as the Memorial and Remonstrance.  He argued that such legislation interfered with the rights of individual conscience and the duties that men owe first to the “Governor of the Universe” before any human government.  The clergy support bill was defeated. Instead, the very next year the Virginia legislature adopted Thomas Jefferson’s Virginia Statute for Religious Freedom.   This law bolstered the protection already in the state constitution.  From this episode, we know that Madison was deeply concerned about state limitations on all freedoms, especially religious freedom.   The lack of much discussion of this subject in the Federalist Papers cannot be taken as evidence that the authors did not care about it but, rather, that they had little or no concern about the federal government’s potential for limiting religious liberty.

   E.  America’s first attempt at a constitution binding all the states together, the Articles of Confederation, does not contain any provision on religious freedom.  But the presumption of the Articles was that nearly all the important business of politics was to take place at the level of the states, with the Confederation loosely uniting them for defense and diplomacy.  When the Constitution was drafted in 1787, its aim was to change that equation and to give a new national government much more responsibility for the internal affairs of the United States. Still, the states would presumably remain closest to the people’s everyday lives (an idea the Federalist Papers themselves underscore repeatedly.)  Many of the specific protections of individual liberty—including religious liberty—that one commonly found in the state constitutions were not thought to be necessary or appropriate in the new Constitution.  The Framers believed that issues related to religious freedom would mostly occur in the context of state laws and policies, and be governed by each state’s constitution.

F. Moreover, the Federalist Papers are a series of essays intended to defend the proposed Constitution, and to advance the cause of its ratification by the states.  The three authors have no interest in picking unnecessary fights by pointing to the things the Framers left out of the Constitution.  They are concerned with defending what is in the Constitution, and the way in which it fundamentally reforms–for the better–the relationship of the states to the nation, and the relationship of the people to both of those levels of government.

G. The Constitution does make one statement about religious liberty.  Article VI requires public officials of both the state and federal governments to take an oath to “support this Constitution,” and then adds “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  The phrase was introduced by Charles Pinckney of South Carolina and elicited little debate or discussion during the Constitutional Convention. Even today this seems one of the least controversial clauses the Constitution could possibly contain.  Madison never offers any explanation or defense of it, merely alluding to it in No. 52 when he remarks that service in the House of Representatives is “open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”

H. There are two major reasons that Article VI, Section 3 is barely referenced in the Federalist Papers.  Firstly, the most extended objections to the lack of a religious test were not raised until July, 1788–and the last of the Federalist Papers was published in May, 1788.  (However, in January, some delegates to the Massachusetts Convention had noted that the lack of a religious test for office contradicted the motivations of the earliest settlers, many of whom came to America to preserve their religious traditions.)   Secondly, the authors did not anticipate that there would be any significant opposition to this provisions. When Charles Pinckney presented this idea at the Convention, it was accepted almost without debate. The Framers did not expect any real concerns to be raised in the state ratifying conventions.

I. Yet various Anti-Federalists objected to the clause.  Why? Some openly worried that the “no religious Test” principle would permit non-Christians to hold public office.  Others were concerned that “papists” (Catholics) or Jews could hold office. Still others thought the clause might open officeholding to persons who believed in no God at all.  A test for specifically Christian belief would be problematic, so widely varied were the forms of Christianity.  If one were not prepared to state up front what forms of religious belief were ruled in, it would be very difficult to state what was ruled out.  And no one, it seems, was prepared to write “no Jews, Muslims, or atheists” into the text of the Constitution.

J. The July 1788 debates from the North Carolina ratifying conventions provide useful insights into concerns about “no religious test.”  Delegate Henry Abbot feared this would lead to “papists, deists, and Mahometans” taking office.  David Caldwell wanted a test because “the Christian religion was best calculated, of all religions, to make good members of society on account of its morality.”

K. Supporters of the clause argued that a religious test was, in and of itself, a limitation on religious liberty and contrary to American ideas.  Supporter James Iredell commented that “I consider the clause under consideration as one of the strongest proofs . . . that it was the intention of those who formed this system to establish a general religious liberty in America.”  Samuel Spencer noted that “Religious tests have been the foundation of persecutions in all countries.” Some delegates expressed concerns that requiring such a test would lead to an established church at the national level.

L. In general, Anti-Federalists throughout the country had three major reservations on the status of religion under the proposed Constitution: 1) The “no religious Test” clause might result in the election of the “wrong” kind of people (and the definition of wrong varied from state to state);  2) The new federal government might interfere with the states’ systems of preference for Christianity, Protestantism, or particular denominations, and several states’ established churches could be threatened; and 3) Religious liberty in general would not be protected from invasion by the federal government.  Some people held all three views at once.

M. It may seem as if the third reservation cannot be squared with the first two.  However, it was common, at the time of the Founding, for political thinkers to be concerned about striking a balance between support for religion (owing to its perceived connection to sound morality) and freedom of religious belief.    They did not automatically think either that absolutely equal status for all religious views was required by the principle of religious freedom, nor that complete religious equality was the best way to provide support for religion and thus for morality.  Today, we are more inclined to think both those things, and thus to insist on all religious views (and even irreligious views like agnosticism, atheism, or secularism) being treated equally. Many of the Framers would not have agreed.

N. However, the demand for a bill of rights turned out to be one of the most significant Anti-Federalist critiques.   Nearly everyone agreed that the federal government should be stronger than it had been under the ineffective Articles of Confederation, and it was not difficult to make the case that the Constitution filled the bill nicely.   But the Framers’ omission of a bill of rights—an idea considered and rejected in the Constitutional Convention—gave the Constitution’s opponents their most powerful weapon. This omission was not enough to defeat the Constitution in any state.  It was not even enough to force the amendment of the Constitution as a precondition of its ratification. But it was enough to produce, in about half the states’ ratifying conventions, resolutions calling on the new Congress to propose amendments for the states to consider.

O. In the first session of the First Congress in the summer of 1789, James Madison, now a member of the new House of Representatives and eager to ensure ratification of the Constitution, consolidated over 37 proposed amendments and persisted in his campaign until a dozen proposed amendments were sent to the states.  Ten of them were ratified by December 1791 and are popularly known at the Bill of Rights. The one that became the First Amendment begins with a protection of religious liberty: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This language satisfied those who wanted a general protection of religious freedom; those who wanted to prevent the establishment of an “official” or preferred church by the federal government; and those who wanted to prevent that government’s interference with any preferences then existing at the state level.

P. Given his experience in 1785 with the Virginia controversy over support of clergymen, it is not surprising that Madison also proposed an amendment that would protect the “rights of conscience” (as well as free speech and press, and jury trials) from violation by the states .  While this proposed amendment survived the debate in the House, it was rejected by the Senate and not sent to the states.  Madison later said that this was the “most valuable” amendment of all, and he regretted its defeat.

   Q.  Madison regarded a limit on states’ authority over religious liberty as “more valuable” than the protection of religious liberty from federal power.  He shared Alexander Hamilton’s arguments (No. 84) for the omission of a bill of rights from the original Constitution.  Statements of the rights the federal government was forbidden to violate, Hamilton argued, might be “fine declarations,” but no language we might place in the Constitution could be so precisely drafted as to secure those rights with perfect success, protecting everything that should be protected and no more than that.  The language would require interpretation; interpretation would necessarily involve the branches of the very government one was trying to restrain; and the one restraint to which the government would answer would be the people’s authority.  Therefore, concrete freedoms, ultimately, “must altogether depend on public opinion.”  A bill of rights added really nothing to the Constitution.  As Hamilton concluded (No. 84), the Constitution as it came from Philadelphia in its original form was “itself in every rational sense, and to every useful purpose, a bill of rights” , and would thus safeguard all liberties, including religious freedom. What did he mean by this?

R. The Federalist Papers emphasize that the essential goal in designing a constitution for a free people is not the use of fine words about rights that amount only to “parchment barriers” against tyranny (No. 47), but, instead, the design of an “internal structure” (No. 23) that tilts all the outcomes of the political process in favor of freedom.  Whether it was religious liberty, or freedom of speech and press, or the free use of one’s ability to acquire property, the real protection was provided by federalism, the separation of powers and checks and balances, and other features of the Constitution’s system of republican government.  These principles themselves relied on public opinion, kept it at arm’s length, and shaped and directed it in ways friendly to freedom.

S. From the very first essay, the Federalist Papers are skeptical that we can simply trust majority rule to maintain liberty.   Even when people’s motives are good, they can be misled into thinking that they have all the answers, and can justifiably force others to agree with them.  Hamilton reminds his readers of bloody religious strife, still fresh in the memory of people only removed by a generation or two from European soil:

“nothing could be more ill-judged than that intolerant spirit, which has, at all times, characterized political parties.  For, in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword.  Heresies in either can rarely be cured by persecution.” (No. 1)

T. Over and over, the authors of the Federalist Papers push their readers to recognize the unique pitfall of a democratic republic: the principle of democratic rule can lead to the oppression of minorities, with the majority itself turning out to be freedom’s enemy.  Therefore, the most important goal of the Constitution is to restrain, channel, and moderate the great power of the majority, without abandoning the principle that in a republic, the people’s will ultimately rules.

U. This recurring theme is most comprehensively fleshed out (No. 10 and No. 51) when Madison makes the novel argument that majority rule at the level of the whole United States will be more trustworthy than majority rule at the level of any individual state.  In the larger, more diverse political environment of the entire country, there will be many more “factions”: self-forming groups of people, organizing and pressing their views in the public sphere. None of them will hold the upper hand as the majority all by itself, and so all of them will have to learn to make compromises with one another, accommodating each other’s particular interests in order to form the shifting, temporary, cobbled-together majorities that can win elections and pass laws.  In such an environment, there are no permanent winners and losers. Everyone wins some fights and loses others.

V. Madison explicitly includes different religious viewpoints in this political analysis.  In addition to factions organized around economic self-interest, he considers “zeal for different opinions concerning religion” (No. 10) as a strong basis for organizing.  But, in this new democratic republic, the urge to impose one’s own view on the whole world, “by fire and sword” (No. 1) will be replaced by moderation, and toleration of fellow citizens’ different views, precisely because so many different views exist, and power must be shared.   “In a free government, the security for civil rights must be the same as that for religious rights.  It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects” (No. 51).  He continues a little later in the same essay:    “In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”

W. This could be contrasted with a less favorable outlook in the smaller environment of a single state: “A religious sect, may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source” (No. 10).  This helps explain why Madison, in the First Congress, thought a constitutional statement protecting religious liberty (and other freedoms too) from state governments was more vital than a similar statement aimed at the new federal government.  The states could be restrained by the federal government, but for restraining the federal government itself, a different calculation was required, as no political authority higher than itself would exist.  In national politics, then, a free and dynamic process of democratic rule would be its own best insurance policy, supplemented by the backup mechanisms of the separation of powers, and checks and balances among the branches of government.

   X.  If Madison sometimes seems skeptical of the good motives of religious citizens, does that mean that he is skeptical of religion?   Or does he think of religious faith as sometimes inclining people toward bad behavior rather than good? Not at all. He is realistic about what Christians call man’s “fallen” nature, and is concerned to give our politics a structure and shape that control what is worst in us and bring out what is best in us.

Y.  Madison is certain that if the unrestrained power of majority rule falls into the hands of a single-minded group, without any need for it to compromise with others, “neither moral nor religious motives can be relied on as an adequate control” of the majority’s behavior (No. 10).  This recognition that morality and religion need the help of wisely formed institutions is coupled with a faith that, if we do wisely design our politics, the good sense and sound morality of most people, grounded in their religious upbringing, will be the bedrock on which our constitutional order and our liberties rest:

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence.  Republican government presupposes the existence of these qualities in a higher degree than any other form.  Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.   (No. 55)

Madison is ultimately hopeful about human nature, or else he could not endorse the idea of a democratic republic at all.

Z. The authors of the Federalist Papers assumed that, for all their religious diversity, the American people are by and large the children of a shared culture, with a shared moral foundation:

Providence has been pleased to give this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.  (No. 2)

Certainly this statement exaggerated, for political purposes, the degree of cultural, ancestral, and even linguistic sameness among the Americans of 1787.  Still, the essential teachings of the Christian faith, the use of the English language as the common speech nationwide, the inheritance of British legal principles and political traditions, and the shared and unifying experience of the Revolution itself made the Americans into one people with a shared consciousness of a shared identity.  As the nation matured after the Founding, it faced problems of assimilating new groups—immigrants from every land, emancipated slaves, and formerly independent Native Americans—into the American mix.  Language, law, and a kind of “civic religion” melded elements of Judeo-Christian teaching with patriotic political principles, and became the essential tools of that assimilation.  And, among these essential principles of the American psyche is the protection of full religious freedom for all, whatever their beliefs.  As President George Washington said, in a famous 1790 letter to the Jewish congregation of Newport, Rhode Island:

“. . . happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support. . . . everyone shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

Back to Essay Contest

Essay: The Constitution, the First Amendment, and Religious Liberty

The Constitution, the First Amendment, and Religious Liberty

Directions: Read the essay and answer the critical thinking questions.

Throughout world history, religious conflicts have been widespread and bloody. In contrast, Americans of various faiths have been able, with some exceptions, to live side by side in relative harmony. What has made the difference? Religious liberty is one important answer. To support religious liberty, the Founders worked to ensure that government was properly limited in its purpose, as well as in its power.

Virginia’s Religious Revolution

At the time the Constitution was ratified, many of the original 13 states still supported established churches. Many Americans believed that government should support religion because religion promoted virtuous lives and nurtured the social order needed for self-government.

The Anglican Church was the established denomination in Virginia, though citizens could belong to any Christian church. Baptists were a fast-growing minority in Virginia. They did not believe that the government should have so much control over religion, and did not follow Virginia’s law that required a license to preach. As a result, Baptists were arrested, fined, and sometimes physically assaulted. Baptist preachers were whipped and dunked into mud to the point of near drowning. Baptists petitioned the Virginia government to disestablish the Anglican Church, and give all churches equal rights and benefits.

In 1776, the Virginia legislature adopted a Declaration of Rights, which included a provision dealing with religion. George Mason, the Declaration’s chief draftsman, first wrote: “All Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” But a young James Madison thought Mason’s draft did not go far enough. Madison believed that the language of “toleration” meant that a government could grant—or deny—citizens the privilege of exercising religion. Madison recommended new wording affirming that free religious belief and exercise were a natural right and duty of all. The final Declaration declared “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; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.…”

Religious dissenters, who were not members of the established church, thought the logic of the provision would place all churches on an equal footing before the law and lead to disestablishment. However, Virginians would continue to debate the implications of this provision for the next decade.

Religious Assessments

By the mid-1780s, taxes to support the Anglican Church had been suspended. In 1784, Patrick Henry proposed a general tax called the Bill Establishing a Provision for Teachers [Ministers] of the Christian Religion. Similar to some New England state laws, citizens would choose which Christian church received their support, or the money could go to a general fund to be distributed by the state legislature.

One notable supporter of the bill was George Washington. He wrote to James Madison: “No man’s sentiments are more opposed to any kind of restraint upon religious principles than mine are; yet I must confess, that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denominations of Christians; or declare themselves Jews, Mahomitans or otherwise, & thereby obtain proper relief.”

Opponents of the bill included James Madison. Madison wrote the Memorial and Remonstrance (1785) opposing the proposed tax. He asserted that religion could not be forced on people, and that state support actually corrupted religion. Government properly limited, rather, would promote a civil society in which people of different faiths could maintain their beliefs according to their own consciences. Madison’s side won the debate and Henry’s religious assessments bill did not pass.

The next year, the Virginia legislature passed The Virginia Statute for Establishing Religious Freedom, written by Thomas Jefferson. This 1786 law (still on the books in Virginia) banned government interference in religion and individual beliefs. Some, but not all, other states gradually followed the example of Virginia.

The Constitution and the First Amendment

At the Constitutional Convention in 1787, the delegates did not discuss basing the government on a religion. The only mention of religion in the body of the U.S. Constitution is to ban religious tests for national office in Article 6, Section 3. Federal employees and elected officials did not have to belong to a specific church or even be religious. This provision passed without debate.

The Constitution likely would not have been ratified without the promise of a Bill of Rights. Many states sent Congress proposed amendments that would add protections from the national government. Included in the proposals was protection for freedom of religion. Congress spent weeks debating different wordings. Finally, amendments were sent to the states for ratification. The religion clauses of the First Amendment read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The first part, known as the Establishment Clause, prohibited the national government from having anything to do with a national religion. Second, the Free Exercise Clause denied the national government the power to pass laws that stopped individuals from practicing their religions.

States did not have to disestablish their churches because the Constitution and Bill of Rights only applied to the national government. Some of the states maintained established churches and many maintained religious tests for office for many years.

CRITICAL THINKING QUESTIONS

• What was the Bill Establishing a Provision for Teachers of the Christian Religion? What arguments were put forth for and against it?
• George Washington supported religious liberty, but did not oppose the proposed Bill Establishing a Provision for Teachers of the Christian Religion. How did he reconcile these positions?
• Why could states establish religions and require religious tests even after the ratification of the Constitution and Bill of Rights?
• Today, there are over 55 countries with established religions. However, a similar number of countries have moved toward religious freedom over the last 150 years. Why do you think the trend over the last 150 years has been to disestablish religions?

Essay: The Protection of Religious Freedom under the American Constitution

Wayne State University Law School Research Paper No. 07-37

Wayne Law Review, Forthcoming

19 Pages Posted: 19 Oct 2007 Last revised: 2 Nov 2007

Robert A. Sedler

Wayne State University Law School

This essay discusses the two-fold protection given to freedom of religion in the American constitutional system. The Establishment Clause protects against the “establishment” of an official church by the government and against governmental action “establishing religion,” while the free exercise clause is a textual guarantee of peoples' right to practice their religion and to hold and act on religious beliefs, free from governmental interference. With respect to the Establishment Clause as a protector of religious freedom, the article emphasizes that when the courts strike down governmental action advancing religion as violative of the Establishment Clause, such as when they hold that the Establishment Clause prohibits school-sponsored prayer or bible reading in the public schools or that it prohibits the use of public funds for religious purposes, the courts are not acting with hostility toward religion, but rather are acting to protect the religious freedom of all of us, and particularly the freedom of religious minorities. The author suggests that this point is often not fully understood by religious believers, who may see such restrictions as demonstrating hostility to religion. Again it is not hostility to religion, but a structural concern for religious freedom that prohibits the government from using its power to advance or inhibit religion. When it comes to the Free Exercise Clause, the Court has been reluctant to interpret that Clause too broadly, lest it end up with a Free Exercise-mandated exemption from the application of facially-neutral and generally applicable laws. Moreover, some of the governmental actions that might be challenged as violative of the Free Exercise Clause have instead been held to be violative of the Establishment Clause, so to some extent, Free Exercise claims have been subsumed by the Establishment Clause. The author says that the most interesting part of the constitutional protection of religious freedom is the matter of affirmative efforts on the part of the government to protect the religious freedom of individuals and religious institutions. Part of the essay is the discussion of the affirmative protection of religious freedom, which brings into play the interaction of the Establishment Claus and the Free Exercise Clause. Here we see the interaction of the Establishment Clause with the Free Exercise Clause to advance the constitutional value of religious freedom. The operative principle in this area may be stated as follows. Governmental action that has the effect of providing a preference for religion over non-religion violates the Establishment Clause, but governmental action that is precisely tailored to protect the religious freedom of individuals and religious institutions does not violate the Establishment Clause. The crucial question in these cases, therefore, is whether the governmental action is an unconstitutional preference for religion, or a precisely tailored and so constitutionally permissible means of protecting the religious freedom of individuals and religious institutions. The permissible means of protecting religious freedom is illustrated by the Supreme Court's decision in Cutter v. Wilkinson, 544 U.S. 709 (2005), upholding a provision of federal law requiring states that receive federal funds to make a reasonable accommodation for the religious practices of prison inmates. The Court found that this law “qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause,” because it “alleviates exceptional government-created burdens on private religious exercise” and “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion. The essay discusses other permissible actions designed to protect the religious freedom of individuals, which include: an exemption from the former Sunday closing laws for Sabbatarians who closed their businesses on Saturday; during Prohibition the exemption for sacramental wine used in religious services, and a modern equivalent, the exemption from the federal substance abuse laws for the use of peyote in the religious ceremonies of Native-American tribes; an exemption from the federal Eagle Protection Act to permit members of Native-American tribes to use eagle feathers in their religious services; the exemption in the federal Humane Slaughter Law for Jewish religious slaughter and now for Halal religious slaughter and for that of all religious faiths that use the severance of the carotid artery method of slaughter; an exemption from social security self-employment taxes for members of religious sects that have tenets opposed to participation in the social security system and that provide reasonable support for their dependent members; an exemption for Amish buggies from the requirement that slow-moving vehicles display a special emblem; and actions to protect the religious freedom of persons subject to governmental control, such as the Dearborn, Michigan public schools making arrangements for their Moslem students to pray at required times during school hours.

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Wayne state university law school ( email ).

471 Palmer Detroit, MI 48202 United States

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Native american religious and cultural freedom: an introductory essay (2005).

I. No Word for Religion: The Distinctive Contours of Native American Religions

A. Fundamental Diversity We often refer to Native American religion or spirituality in the singular, but there is a fundamental diversity concerning Native American religious traditions. In the United States, there are more than five hundred recognized different tribes , speaking more than two hundred different indigenous languages, party to nearly four hundred different treaties , and courted by missionaries of each branch of Christianity. With traditional ways of life lived on a variety of landscapes, riverscapes, and seascapes, stereotypical images of buffalo-chasing nomads of the Plains cannot suffice to represent the people of Acoma, still raising corn and still occupying their mesa-top pueblo in what only relatively recently has come to be called New Mexico, for more than a thousand years; or the Tlingit people of what is now Southeast Alaska whose world was transformed by Raven, and whose lives revolve around the sea and the salmon. Perhaps it is ironic that it is their shared history of dispossession, colonization, and Christian missions that is most obviously common among different Native peoples. If “Indian” was a misnomer owing to European explorers’ geographical wishful thinking, so too in a sense is “Native American,”a term that elides the differences among peoples of “North America” into an identity apparently shared by none at the time the continents they shared were named for a European explorer. But the labels deployed by explorers and colonizers became an organizing tool for the resistance of the colonized. As distinctive Native people came to see their stock rise and fall together under “Indian Policy,” they resourcefully added that Native or Indian identity, including many of its symbolic and religious emblems, to their own tribal identities. A number of prophets arose with compelling visions through which the sacred called peoples practicing different religions and speaking different languages into new identities at once religious and civil. Prophetic new religious movements, adoption and adaptation of Christian affiliation, and revitalized commitments to tribal specific ceremonial complexes and belief systems alike marked religious responses to colonialism and Christian missions. And religion was at the heart of negotiating these changes. “More than colonialism pushed,” Joel Martin has memorably written, “the sacred pulled Native people into new religious worlds.”(Martin) Despite centuries of hostile and assimilative policies often designed to dismantle the structures of indigenous communities, language, and belief systems, the late twentieth century marked a period of remarkable revitalization and renewal of Native traditions. Built on centuries of resistance as well as strategic accommodations, Native communities from the 1960s on have vigorously pressed their claims to religious self-determination.

B. "Way of Life, not Religion" In all their diversity, people from different Native nations hasten to point out that their respective languages include no word for “religion”, and maintain an emphatic distinction between ways of life in which economy, politics, medicine, art, agriculture, etc., are ideally integrated into a spiritually-informed whole. As Native communities try to continue their traditions in the context of a modern American society that conceives of these as discrete segments of human thought and activity, it has not been easy for Native communities to accomplish this kind of integration. Nor has it been easy to to persuade others of, for example, the spiritual importance of what could be construed as an economic activity, such as fishing or whaling.

C. Oral Tradition and Indigenous Languages Traversing the diversity of Native North American peoples, too, is the primacy of oral tradition. Although a range of writing systems obtained existed prior to contact with Europeans, and although a variety of writing systems emerged from the crucible of that contact, notably the Cherokee syllabary created by Sequoyah and, later, the phonetic transcription of indigenous languages by linguists, Native communities have maintained living traditions with remarkable care through orality. At first glance, from the point of view of a profoundly literate tradition, this might seem little to brag about, but the structure of orality enables a kind of fluidity of continuity and change that has clearly enabled Native traditions to sustain, and even enlarge, themselves in spite of European American efforts to eradicate their languages, cultures, and traditions. In this colonizing context, because oral traditions can function to ensure that knowledge is shared with those deemed worthy of it, orality has proved to be a particular resource to Native elders and their communities, especially with regard to maintaining proper protocols around sacred knowledge. So a commitment to orality can be said to have underwritten artful survival amid the pressures of colonization. It has also rendered Native traditions particularly vulnerable to exploitation. Although Native communities continue to privilege the kinds of knowledge kept in lineages of oral tradition, courts have only haltingly recognized the evidentiary value of oral traditions. Because the communal knowledge of oral traditions is not well served by the protections of intellectual property in western law, corporations and their shareholders have profited from indigenous knowledge, especially ethnobotanical and pharmacological knowledge with few encumbrances or legal contracts. Orality has also rendered Native traditions vulnerable to erosion. Today, in a trend that linguists point out is global, Native American languages in particular are to an alarming degree endangered languages. In danger of being lost are entire ways of perceiving the world, from which we can learn to live more sustainable, balanced, lives in an ecocidal age.

D. "Religious" Regard for the Land In this latter respect of being not only economically land-based but culturally land-oriented, Native religious traditions also demonstrate a consistency across their fundamental diversity. In God is Red ,Vine Deloria, Jr. famously argued that Native religious traditions are oriented fundamentally in space, and thus difficult to understand in religious terms belonging properly tothe time-oriented traditions of Christianity and Judaism. Such a worldview is ensconced in the idioms, if not structures, of many spoken Native languages, but living well on particular landscapes has not come naturally to Native peoples, as romanticized images of noble savages born to move silently through the woods would suggest. For Native peoples, living in balance with particular landscapes has been the fruit of hard work as well as a product of worldview, a matter of ethical living in worlds where non human life has moral standing and disciplined attention to ritual protocol. Still, even though certain places on landscapes have been sacred in the customary sense of being wholly distinct from the profane and its activity, many places sacred to Native peoples have been sources of material as well as spiritual sustenance. As with sacred places, so too with many sacred practices of living on landscapes. In the reckoning of Native peoples, pursuits like harvesting wild rice, spearing fish or hunting certain animals can be at once religious and economic in ways that have been difficult for Western courts to acknowledge. Places and practices have often had both sacred and instrumental value. Thus, certain cultural freedoms are to be seen in the same manner as religious freedoms. And thus, it has not been easy for Native peoples who have no word for “religion” to find comparable protections for religious freedom, and it is to that troubled history we now turn.

II. History of Native American Religious and Cultural Freedom

A. Overview That sacred Native lifeways have only partly corresponded to the modern Western language of “religion,” the free exercise of which is ostensibly protected by the First Amendment of the U.S. Constitution , has not stopped Native communities from seeking protection of their freedom to exercise and benefit from those lifeways. In the days of treaty making, formally closed by Congress in 1871, and in subsequent years of negotiated agreements, Native communities often stipulated protections of certain places and practices, as did Lakota leaders in the Fort Laramie Treaty when they specifically exempted the Paha Sapa, subsequently called the Black Hills from land cessions, or by Ojibwe leaders in the 1837  treaty, when they expressly retained “usufruct” rights to hunt, fish, and gather on lands otherwise ceded to the U.S. in the treaty. But these and other treaty agreements have been honored neither by American citizens nor the United States government. Native communities have struggled to secure their rights and interests within the legal and political system of the United States despite working in an English language and in a legal language that does not easily give voice to Native regard for sacred places, practices, and lifeways. Although certain Native people have appealed to international courts and communities for recourse, much of the material considered in this website concerns Native communities’ efforts in the twentieth and twenty-first century to protect such interests and freedoms within the legal and political universe of the United States.

B. Timeline 1871 End of Treaty Making Congress legislates that no more treaties are to be made with tribes and claims “plenary power” over Indians as wards of U.S. government. 1887-1934 Formal U.S. Indian policy of assimilation dissolves communal property, promotes English only boarding school education, and includes informal and formalized regulation and prohibition of Native American ceremonies. At the same time, concern with “vanishing Indians” and their cultures drives a large scale effort to collect Native material culture for museum preservation and display. 1906 American Antiquities Act Ostensibly protects “national” treasures on public lands from pilfering, but construes Native American artifacts and human remains on federal land as “archeological resources,” federal property useful for science. 1921 Bureau of Indian Affairs Continuing an administrative trajectory begun in the 1880's, the Indian Bureau authorized its field agents to use force and imprisonment to halt religious practices deemed inimical to assimilation. 1923 Bureau of Indian Affairs The federal government tries to promote assimilation by instructing superintendents and Indian agents to supress Native dances, prohibiting some and limiting others to specified times. 1924 Pueblos make appeal for religious freedom protection The Council of All the New Mexico Pueblos appeals to the public for First Amendment protection from Indian policies suppressing ceremonial dances. 1924 Indian Citizenship Act Although uneven policies had recognized certain Indian individuals as citizens, all Native Americans are declared citizens by Congressional legislation. 1928 Meriam Report Declares federal assimilation policy a failure 1934 Indian Reorganization Act Officially reaffirms legality and importance of Native communities’ religious, cultural, and linguistic traditions. 1946 Indian Claims Commission Federal Commission created to put to rest the host of Native treaty land claims against the United States with monetary settlements. 1970 Return of Blue Lake to Taos Pueblo After a long struggle to win support by President Nixon and Congress, New Mexico’s Taos Pueblo secures the return of a sacred lake, and sets a precedent that threatened many federal lands with similar claims, though regulations are tightened. Taos Pueblo still struggles to safeguard airspace over the lake. 1972 Portions of Mount Adams returned to Yakama Nation Portions of Washington State’s Mount Adams, sacred to the Yakama people, was returned to that tribe by congressional legislation and executive decision. 1978 American Indian Religious Freedom Act Specifies Native American Church, and other native American religious practices as fitting within religious freedom. Government agencies to take into account adverse impacts on native religious freedom resulting from decisions made, but with no enforcement mechanism, tribes were left with little recourse. 1988 Lyng v. Northwest Indian Cemetery Protective Association Three Calif. Tribes try to block logging road in federal lands near sacred Mt. Shasta Supreme Court sides w/Lyng, against tribes. Court also finds that AIRFA contains no legal teeth for enforcement. 1990 Employment Division, Department of Human Resources v. Smith Oregon fires two native chemical dependency counselors for Peyote use. They are denied unemployment compensation. They sue. Supreme Court 6-3 sides w/Oregon in a major shift in approach to religious freedom. Scalia, for majority: Laws made that are neutral to religion, even if they result in a burden on religious exercise, are not unconstitutional. Dissent identifies this more precisely as a violation of specific congressional intent to clarify and protect Native American religious freedoms 1990 Native American Graves and Repatriation Act (NAGPRA) Mandates return of human remains, associated burial items, ceremonial objects, and "cultural patrimony” from museum collections receiving federal money to identifiable source tribes. Requires archeologists to secure approval from tribes before digging. 1990 “Traditional Cultural Properties” Designation created under Historic Preservation Act enables Native communities to seek protection of significant places and landscapes under the National Historic Preservation Act. 1993 Religious Freedom Restoration Act Concerning Free Exercise Claims, the burden should be upon the government to prove “compelling state interest” in laws 1994 Amendments to A.I.R.F.A Identifies Peyote use as sacramental and protected by U.S., despite state issues (all regs must be made in consultation with reps of traditional Indian religions. 1996 President Clinton's Executive Order (13006/7) on Native American Sacred Sites Clarifies Native American Sacred Sites to be taken seriously by government officials. 1997 City of Bourne v. Flores Supreme Court declares Religious Freedom Restoration Act unconstitutional 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA) Protects religious institutions' rights to make full use of their lands and properties "to fulfill their missions." Also designed to protect the rights of inmates to practice religious traditions. RLUIPA has notably been used in a number of hair-length and free-practice cases for Native inmates, a number of which are ongoing (see: Greybuffalo v. Frank).

III. Contemporary Attempts to Seek Protection Against the backdrop, Native concerns of religious and cultural freedoms can be distinguished in at least the following ways.

• Issues of access to, control over, and integrity of sacred lands
• Free exercise of religion in public correctional and educational institutions
• Free Exercise of “religious” and cultural practices prohibited by other realms of law: Controlled Substance Law, Endangered Species Law, Fish and Wildlife Law
• Repatriation of Human Remains held in museums and scientific institutions
• Repatriation of Sacred Objects/Cultural Patrimony in museums and scientific institutions
• Protection of Sacred and Other Cultural Knowledge from exploitation and unilateral appropriation (see Lakota Elder’s declaration).

In their attempts to press claims for religious and cultural self-determination and for the integrity of sacred lands and species, Native communities have identified a number of arenas for seeking protection in the courts, in legislatures, in administrative and regulatory decision-making, and through private market transactions and negotiated agreements. And, although appeals to international law and human rights protocols have had few results, Native communities bring their cases to the court of world opinion as well. It should be noted that Native communities frequently pursue their religious and cultural interests on a number of fronts simultaneously. Because Native traditions do not fit neatly into the category of “religion” as it has come to be demarcated in legal and political languages, their attempts have been various to promote those interests in those languages of power, and sometimes involve difficult strategic decisions that often involve as many costs as benefits. For example, seeking protection of a sacred site through historic preservation regulations does not mean to establish Native American rights over access to and control of sacred places, but it can be appealing in light of the courts’ recently narrowing interpretation of constitutional claims to the free exercise of religion. Even in the relative heyday of constitutional protection of the religious freedom of minority traditions, many Native elders and others were understandably hesitant to relinquish sacred knowledge to the public record in an effort to protect religious and cultural freedoms, much less reduce Native lifeways to the modern Western terms of religion. Vine Deloria, Jr. has argued that given the courts’ decisions in the 1980s and 1990s, especially in the Lyng and Smith cases, efforts by Native people to protect religious and cultural interests under the First Amendment did as much harm as good to those interests by fixing them in written documents and subjecting them to public, often hostile, scrutiny.

A. First Amendment Since the 1790s, the First Amendment to the Constitution has held that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The former of the amendment’s two clauses, referred to as the “establishment clause” guards against government sponsorship of particular religious positions. The latter, known as the “free exercise” clause, protects the rights of religious minorites from government interference. But just what these clauses have been understood to mean, and how much they are to be weighed against other rights and protections, such as that of private property, has been the subject of considerable debate in constitutional law over the years. Ironically, apart from matters of church property disposition, it was not until the 1940s that the Supreme Court began to offer its clarification of these constitutional protections. As concerns free exercise jurisprudence, under Chief Justices Warren and Burger in the 1960s and 1970s, the Supreme Court had expanded free exercise protection and its accommodations considerably, though in retrospect too few Native communities were sufficiently organized or capitalized, or perhaps even motivated, given their chastened experience of the narrow possibilities of protection under U.S. law, to press their claims before the courts. Those communities who did pursue such interests experienced first hand the difficulty of trying to squeeze communal Native traditions, construals of sacred land, and practices at once economic and sacred into the conceptual box of religion and an individual’s right to its free exercise. By the time more Native communities pursued their claims under the free exercise clause in the 1980s and 1990s, however, the political and judicial climate around such matters had changed considerably. One can argue it has been no coincidence that the two, arguably three, landmark Supreme Court cases restricting the scope of free exercise protection under the Rehnquist Court were cases involving Native American traditions. This may be because the Court agrees to hear only a fraction of the cases referred to it. In Bowen v. Roy 476 U.S. 693 (1986) , the High Court held against a Native person refusing on religious grounds to a social security number necessary for food stamp eligibility. With even greater consequence for subsequent protections of sacred lands under the constitution, in Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) , the High Court reversed lower court rulings which had blocked the construction of a timber road through high country sacred to California’s Yurok, Karok and Tolowa communities. In a scathing dissent, Harry Blackmun argued that the majority had fundamentally misunderstood the idioms of Native religions and the centrality of sacred lands. Writing for the majority, though, Sandra Day O’Connor’s opinion recognized the sincerity of Native religious claims to sacred lands while devaluing those claims vis a vis other competing goods, especially in this case, the state’s rights to administer “what is, after all, its land.” The decision also codified an interpretation of Congress’s legislative protections in the 1978 American Indian Religious Freedom Act as only advisory in nature. As of course happens in the U.S. judical system, such decisions of the High Court set new precedents that not only shape the decisions of lower courts, but that have a chilling effect on the number of costly suits brought into the system by Native communities. What the Lyng decision began to do with respect to sacred land protection, was finished off with respect to restricting free exercise more broadly in the Rehnquist Court’s 1990 decision in Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) . Despite nearly a century of specific protections of Peyotism, in an unemployment compensation case involving two Oregon substance abuse counselors who had been fired because they had been found to be Peyote ingesting members of the Native American Church , a religious organization founded to secure first amendment protection in the first place, the court found that the state’s right to enforce its controlled substance laws outweighed the free exercise rights of Peyotists. Writing for the majority, Justice Scalia’s opinion reframed the entire structure of free exercise jurisprudence, holding as constitutional laws that do not intentionally and expressly deny free exercise rights even if they have the effect of the same. A host of minority religious communities, civil liberties organizations, and liberal Christian groups were alarmed at the precedent set in Smith. A subsequent legislative attempt to override the Supreme Court, the Religious Freedom Restoration Act , passed by Congress and signed into law in 1993 by President Clinton was found unconstitutional in City of Bourne v. Flores (1997) , as the High Court claimed its constitutional primacy as interpreter of the constitution.

i. Sacred Lands In light of the ruling in Lyng v. Northwest Cemetery Protective Association (1988) discussed immediately above, there have been few subsequent attempts to seek comparable protection of sacred lands, whether that be access to, control of, or integrity of sacred places. That said, three cases leading up to the 1988 Supreme Court decision were heard at the level of federal circuit courts of appeal, and are worthy of note for the judicial history of appeals to First Amendment protection for sacred lands. In Sequoyah v. Tennessee Valley Authority , 19800 620 F.2d 1159 (6th Cir. 1980) , the court remained unconvinced by claims that a proposed dam's flooding of non-reservation lands sacred to the Cherokee violate the free excersice clause. That same year, in Badoni v. Higginson , 638 F. 2d 172 (10th Cir. 1980) , a different Circuit Court held against Navajo claims about unconstitutional federal management of water levels at a am desecrating Rainbow Arch in Utah. Three years later, in Fools Crow v. Gullet , 760 F. 2d 856 (8th Cir. 1983), cert. Denied, 464 U.S.977 (1983) , the Eighth Circuit found unconvincing Lakota claims to constitutional protections to a vision quest site against measures involving a South Dakota state park on the site.

ii. Free Exercise Because few policies and laws that have the effect of infringing on Native American religious and cultural freedoms are expressly intended to undermine those freedoms, the High Court’s Smith decision discouraged the number of suits brought forward by Native communities under constitutional free exercise protection since 1990, but a number of noteworthy cases predated the 1990 Smith decision, and a number of subsequent free exercise claims have plied the terrain of free exercise in correctional institutions. Employment Division, State of Oregon v. Smith (1990)

• Prison:Sweatlodge Case Study
• Eagle Feathers: U.S. v. Dion
• Hunting for Ceremonial Purposes: Frank v. Alaska

iii. No Establishment As the history of First Amendment jurisprudence generaly shows (Flowers), free exercise protections bump up against establishment clause jurisprudence that protects the public from government endorsement of particular traditions. Still, it is perhaps ironic that modest protections of religious freedoms of tiny minorities of Native communities have undergone constitutional challenges as violating the establishment clause. At issue is the arguable line between what has been understood in jurisprudence as governmental accommodations enabling the free exercise of minority religions and government endorsement of those traditions. The issue has emerged in a number of challenges to federal administrative policies by the National Park Service and National Forest Service such as the voluntary ban on climbing during the ceremonially significant month of June on what the Lakota and others consider Bear Lodge at Devil’s Tower National Monument . It should be noted that the Mountain States Legal Foundation is funded in part by mining, timbering, and recreational industries with significant money interests in the disposition of federal lands in the west. In light of courts' findings on these Native claims to constitutional protection under the First Amendment, Native communities have taken steps in a number of other strategic directions to secure their religious and cultural freedoms.

B. Treaty Rights In addition to constitutional protections of religious free exercise, 370 distinct treaty agreements signed prior to 1871, and a number of subsequent “agreements” are in play as possible umbrellas of protection of Native American religious and cultural freedoms. In light of the narrowing of free exercise protections in Lyng and Smith , and in light of the Court’s general broadening of treaty right protections in the mid to late twentieth century, treaty rights have been identified as preferable, if not wholly reliable, protections of religious and cultural freedoms. Makah Whaling Mille Lacs Case

C. Intellectual Property Law Native communities have occasionally sought protection of and control over indigenous medicinal, botanical, ceremonial and other kinds of cultural knowledge under legal structures designed to protect intellectual property and trademark. Although some scholars as committed to guarding the public commons of ideas against privatizing corporate interests as they are to working against the exploitation of indigenous knowledge have warned about the consequences of litigation under Western intellectual property standards (Brown), the challenges of such exploitation are many and varied, from concerns about corporate patenting claims to medicinal and agricultural knowledge obtained from Native elders and teachers to protecting sacred species like wild rice from anticipated devastation by genetically modified related plants (see White Earth Land Recovery Project for an example of this protection of wild rice to logos ( Washington Redskins controversy ) and images involving the sacred Zia pueblo sun symbol and Southwest Airlines to challenges to corporate profit-making from derogatory representations of Indians ( Crazy Horse Liquor case ).

D. Other Statutory Law A variety of legislative efforts have had either the express purpose or general effect of providing protections of Native American religious and cultural freedoms. Some, like the Taos Pueblo Blue Lake legislation, initiated protection of sacred lands and practices of particular communities through very specific legislative recourse. Others, like the 1990 Native American Graves Protection and Repatriation Act , enacted broad protections of Native American religious and cultural freedom [link to Troost case]. Culminating many years of activism, if not without controversy even in Native communities, Congress passed the American Indian Religious Freedom Act , signed into law in 1978 and amended in 1993, in order to recognize the often difficult fit between Native traditions and constitutional protections of the freedom of “religion” and ostensibly to safeguard such interests from state interference. Though much heralded for its symbolic value, the act was determined by the courts (most notably in the Lyng decision upon review of the congressional record to be only advisory in nature, lacking a specific “cause for action” that would give it legal teeth. To answer the Supreme Court's narrowing of the scope of free exercise protections in Lyng and in the 1990 Smith decision, Congress passed in 2000 the  Religious Land Use and Institutionalized Persons Act (RLUIPA)  restoring to governments the substantial burden of showing a "compelling interest" in land use decisions or administrative policies that exacted a burden on the free exercise of religion and requiring them to show that they had exhausted other possibilities that would be less burdensome on the free exercise of religion. Two other notable legislative initiatives that have created statutory protections for a range of Native community religious and cultural interests are the 1966 National Historic Preservation Act and the Native American Language Act legislation beginning to recognize the significance and urgency of the protection and promotion of indigenous languages, if not supporting such initiatives with significant appropriations. AIRFA 1978 NAGPRA 1990 [see item h. below] Native American Language Act Religious Land Use and Institutionalized Persons Act (RLUIPA)  2000 National Historic Preservation Act  [see item g below]

E. Administrative and Regulatory Policy and Law As implied in a number of instances above, many governmental decisions affecting Native American religious and cultural freedom occur at the level of regulation and the administrative policy of local, state, and federal governments, and as a consequence are less visible to those not locally or immediately affected.

F. Federal Recognition The United States officially recognizes over 500 distinct Native communities, but there remain numerous Native communities who know clearly who they are but who remain formally unrecognized by the United States, even when they receive recognition by states or localities. In the 1930s, when Congress created the structure of tribal governments under the Indian Reorganization Act, many Native communities, including treaty signatories, chose not to enroll themselves in the recognition process, often because their experience with the United States was characterized more by unwanted intervention than by clear benefits. But the capacity and charge of officially recognized tribal governments grew with the Great Society programs in the 1960s and in particular with an official U.S. policy of Indian self-determination enacted through such laws as the 1975 Indian Self Determination and Education Act , which enabled tribal governments to act as contractors for government educational and social service programs. Decades later, the Indian Gaming Regulatory Act formally recognized the authority of recognized tribal governments to engage in casino gaming in cooperation with the states. Currently, Native communities that remain unrecognized are not authorized to benefit from such programs and policies, and as a consequence numerous Native communities have stepped forward to apply for federal recognition in a lengthy, laborious, and highly-charged political process overseen by the  Bureau of Indian Affairs, Office of Federal Acknowledgment . Some communities, like Michigan’s Little Traverse Band of Odawa have pursued recognition directly through congressional legislation. As it relates to concerns of Native American religious and cultural freedom, more is at stake than the possibility to negotiate with states for the opening of casinos. Federal recognition gives Native communities a kind of legal standing to pursue other interests with more legal and political resources at their disposal. Communities lacking this standing, for example, are not formally included in the considerations of the Native American Graves Protection and Repatriation Act (item H. below).

G. Historic Preservation Because protections under the National Historic Preservation Act have begun to serve as a remedy for protection of lands of religious and cultural significance to Native communities, in light of first amendment jurisprudence since Lyng , it bears further mention here. Native communities seeking protections through Historic Preservation determinations are not expressly protecting Native religious freedom, nor recognizing exclusive access to, or control of sacred places, since the legislation rests on the importance to the American public at large of sites of historic and cultural value, but in light of free exercise jurisprudence since Lyng , historic preservation has offered relatively generous, if not exclusive, protection. The National Historic Preservation Act as such offered protection on the National Register of Historic Places, for the scholarly, especially archeological, value of certain Native sites, but in 1990, a new designation of “traditional cultural properties” enabled Native communities and others to seek historic preservation protections for properties associated “wit cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” The designation could include most communities, but were implicitly geared to enable communities outside the American mainstream, perhaps especially Native American communities, to seek protection of culturally important and sacred sites without expressly making overt appeals to religious freedom. (King 6) This enabled those seeking recognition on the National Register to skirt a previous regulatory “religious exclusion” that discouraged inclusion of “properties owned by religious institutions or used for religious purposes” by expressly recognizing that Native communities don’t distinguish rigidly between “religion and the rest of culture” (King 260). As a consequence, this venue of cultural resource management has served Native interests in sacred lands better than others, but it remains subject to review and change. Further it does not guarantee protection; it only creates a designation within the arduous process of making application to the National Register of Historic Places. Pilot Knob Nine Mile Canyon

H. Repatriation/Protection of Human Remains, Burial Items, and Sacred Objects Culminating centuries of struggle to protect the integrity of the dead and material items of religious and cultural significance, Native communities witnessed the creation of an important process for protection under the 1990 Native American Graves and Repatriation Act . The act required museums and other institutions in the United States receiving federal monies to share with relevant Native tribes inventories of their collections of Native human remains, funerary objects, sacred objects, and objects of “cultural patrimony” (that is objects that were acquired from individuals, but which had belonged not to individuals, but entire communities), and to return them on request to lineal descendants or federally recognized tribes (or Native Hawaiian organizations) in those cases where museums can determine cultural affiliation, or as often happens, in the absence of sufficiently detailed museum data, to a tribe that can prove its cultural affiliation. The law also specifies that affiliated tribes own these items if they are discovered in the future on federal or tribal lands. Finally, the law also prohibits almost every sort of trafficking in Native American human remains, burial objects, sacred objects, and items of cultural patrimony. Thus established, the process has given rise to a number of ambiguities. For example, the law’s definition of terms gives rise to some difficulties. For example, “sacred objects” pertain to objects “needed for traditional Native American religions by their present day adherents.” Even if they are needed for the renewal of old ceremonies, there must be present day adherents. (Trope and Echo Hawk, 143). What constitutes “Cultural affiliation” has also given rise to ambiguity and conflict, especially given conflicting worldviews. As has been seen in the case of Kennewick Man the “relationship of shared group identity” determined scientifically by an archeologist may or may not correspond to a Native community’s understanding of its relation to the dead on its land. Even what constitutes a “real” can be at issue, as was seen in the case of Zuni Pueblo’s concern for the return of “replicas” of sacred Ahayu:da figures made by boy scouts. To the Zuni, these contained sacred information that was itself proprietary (Ferguson, Anyon, and Lad, 253). Disputes have arisen, even between different Native communities claiming cultural affiliation, and they are adjudicated through a NAGPRA Review Committee , convened of three representatives from Native communities, three from museum and scientific organizations, and one person appointed from a list jointly submitted by the other six.

I. International Law and Human Rights Agreements At least since 1923, when Haudenosaunee Iroqois leader Deskaneh made an appeal to the League of Nations in Geneva, Native communities and organizations have registered claims and concerns about religious and cultural freedoms with the international community and institutions representing it in a variety of ways. Making reference to their status as sovereign nations whose treaties with the U.S. have not been honored, frustrated with previous efforts to seek remedies under U.S. law, concerned with the capacity for constitutional protection of what are typically “group” and not individual rights, and sometimes spurned by questions about the rightful jurisdiction of the U.S., Native organizations have sought consideration of their claims before the United Nations and engaged in its consultations on indigenous rights. After years of such appeals and efforts, a nearly unanimous  United Nations General Assembly passed the United Nations Declarations on the Rights of Indigenous Peoples The 1996  Declaration of the Rights of Indigenous Peoples includes reference [article 12] to the “right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects,; and the right to the repatriation of human remains.” Importantly, the Declaration does not exclude those communities whose traditions have been interrupted by colonization. Indigenous peoples are recognized as having “the right to maintain, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.” Also specified are their rights to their languages. An offshoot of the American Indian Movement, the International Indian Treaty Council is one such organization that has shifted its attention to the international arena for protections of indigenous rights, including those of religious and cultural freedom.]]

J. Negotiated Agreements and Private Transactions Many if not most Native claims and concerns related to religious and cultural freedoms have been and will continue to be raised and negotiated outside the formal legal and regulatory structures outlined above, and thus will seldom register in public view. In light of the career of Native religious and cultural freedoms in legislative and legal arenas, Vine Deloria, Jr., has suggested the possibilities of such agreements to reach Native goals without subjecting Native communities to the difficulties of governmental interference or public scrutiny of discreet traditions (Deloria 1992a). Still, the possibilities for Native communities to reach acceptable negotiated agreements often owe to the legal and political structures to which they have recourse if negotiations fail. The possibilities of such negotiated agreements also can be shaped by the pressures of public opinion on corporate or governmental interests. Kituwah Mound Valley of the Shields/Weatherman’s Draw

IV. Selected Past Native American Religious and Cultural Freedom Court Cases

A. Land Sequoyah v. Tennessee Valley Authority 620 F. 2d 1159 (6th Cir. 1980) . Dam’s Destruction of Sacred River/Land Badoni v. Higginson 638 F 2d 172 (10th Cir. 1980) . Desecration of Rainbow Arch, Navajo Sacred Spot in Utah Fools Crow v. Gullet 706 F. 2d. 856 (8th Cir. 1983), cert. Denied, 464 U.S. 977 (1983) . State Park on top of Vision Quest site in S. Dakota Wilson v. Block 708F. 2d 735 (D.C. Cir. 1983) ; Hopi Indian Tribe v. Block; Navajo Medicine Men Assn’ v. Block Expansion of Ski Area in San Francisco Peaks, sacred to Navaho and Hopi Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) Logging Road in lands sacred to Yurok, Karok, and Tolowa

B. Free Exercise Bowen v. Roy 476 U.S. 693 (1986) Native refusal of Social Security Number U.S. v. Dion 476 U.S. 734 Sacramental Eagle Hunt contra Endangered Species Act Frank v. State 604 P. 2d 1068 (Alaska 1979) Taking moose out of season for potlatch *Native American Church v. Navajo Tribal Council 272 F 2d 131 (10th Cir. 1959) Peyotists vs. Tribal Gov’t Prohibiting Peyotism People v. Woody 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964) Groundbreaking recognition of Free Exercise exemption from State Ban. Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) Denial of Peyotist’s unemployment compensation held constitutional

C. Prison cases involving hair *Standing Deer v. Carlson 831 F. 2d 1525 (9th Cir. 1987). *Teterud v. Gilman 385 F. Supp. 153 (S. D. Iowa 1974) & New Rider v. Board of Education 480 F. 2d 693 (10th Cir. 1973) , cert. denied 414 U.S. 1097, reh. Denied 415 U.S. 939 *Indian Inmates of Nebraska Penitentiary v. Grammar 649 F. Supp. 1374 (D. Neb. 1986)

D. Human Remains/Repatriation *Wana the Bear v. Community Construction, Inc. 180 Cal Rptr. 423 (Ct. App. 1982). Historic Indian cemetery not a “cemetery.” *State v. Glass 273 N.E. 2d 893 (Ohio Ct. App. 1971). Ancient human remains not “human” for purposes of Ohio grave robbing statute

E. Treaty Rights Pertaining to Traditional/Sacred Practices *U.S. v. Washington 384 F. Supp. 312 (W.D. Wash. 1974) aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Boldt Decision on Salmon Fishing *Lac Court Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F. 2d 341 (7th Cir.) Cert. denied, 464 U.S. 805 (1983) 653 F. Supp. 1420; Fishing/Ricing/Gathering on Ceded Lands Minnesota v. Mille Lacs Band of Chippewa Indians 124 F 3d 904 affirmed. (1999) Fishing/Ricing/Gathering on Ceded Lands

V. References & Resources

Brown, Michael, Who Owns Native Culture (Cambridge, Mass: Harvard University Press, 2003). Burton, Lloyd Worship and Wilderness: Culture, Religion, and Law in the Management of Public Lands and Resources (Madison: University of Wisconsin Press, 2002).

Deloria, Vine, Jr., “Secularism, Civil Religion, and the Religious Freedom of American Indians,” American Indian Culture and Research Journal 16:9-20 (1992).

[a] Deloria, Vine, Jr., “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States,”in The State of Native America: Genocide, Colonization, and Resistance , ed. M. Annette Jaimes (Boston: South End Press, 1992).

[b] Echo Hawk, Walter,  In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided ( Fulcrum Publications , 2010) . Fine-Dare, Kathleen, Grave Injustice: The American Indian Repatriation Movement and NAGPRA (Lincoln: University of Nebraska Press, 2002).

Ferguson, T.J., Roger Anyon, and Edmund J. Ladd, “Repatriation at the Pueblo of Zuni: Diverse Solutions to Complex Problems,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000) pp. 239-265.

Gordon-McCutchan, R.C., The Taos Indians and the Battle for Blue Lake (Santa Fe, New Mexico: Red Crane Books, 1991).

Gulliford, Andrew, Sacred Objets and Sacred Places: Preserving Tribal Traditions (Boulder: University Press of Colorado, 2000).

Johnson, Greg, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007).

King, Thomas F., Places that Count: Traditional Cultural Properties in Cultural Resource Management (Walnut Creek, Calif: Altamira Press, 2003).

Long, Carolyn, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence: University of Kansas Press, 2001).

Maroukis, Thomas A., Peyote Road: Religious Freedom and the Native American Church (Norman: University of Oklahoma Press, 2010)

Martin, Joel, The Land Looks After Us: A History of Native American Religion (New York: Oxford University Press, 2001).

McLeod, Christopher (Producer/Director), In Light of Reverence , Sacred Lands Film Project, (Earth Image Films, La Honda Calif. 2000).

McNally, Michael D., "Native American Religious Freedom Beyond the First Amendment," in After Pluralism ed. Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010).

Mihesuah, Devon A., ed., Repatriation Reader: Who Owns American Indian Remains (Lincoln: University of Nebraska Press, 2000).

Nabokov, Peter, A Forest of Time: American Indian Ways of History (New York: Cambridge University Press, 2002).

Sullivan, Robert, A Whale Hunt (New York: Scribner, 2000).

Trope, Jack F., and Walter Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000), pp. 123-168.

Wenger, Tisa, We Have a Religion : The 1920s Pueblo Indian Dance Controversy and American Religious Freedom (Chapel Hill: University of North Carolina Press, 2009).

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The Importance of Freedom of Religion

Our country is a society built on freedom . While all our freedoms are spectacular, I believe that the greatest of them is freedom of religion. As stated in the first Amendment to the United States Constitution, freedom of religion prevents our govenunent from forcing citizens to practice any single kind of religion. Thanks to this wonderful Amendment, all sorts of religious practices have taken root and spread in our beloved country, from Catholicism to Hinduism . In fact, as reported in the New York Times and Staten Island Advance, my local newspapers, the leader of the Catholic Church, Pope Francis, proclaimed his interpretation of our Amendment in his recent Philadelphia speech, fittingly delivered near Independence Hall. We witnessed history unfold before our eyes, as the Pope moved people with his words, announcing that religious freedom is a "fundamental right" for all citizens. Freedom of religion definitely makes the lives of citizens of the United States better. As a citizen myself, I can say with resounding truth that freedom of religion has made life on Staten Island better. No person has to worry about being punished wrongly or being ridiculed for his or her beliefs. For instance, I can freely attend a Catholic school and Sunday mass. One of  my mother's closest friends is Jewish, but my family is Catholic. Thanks to freedom of religion, we can be very close with one another (I even refer to her as my "aunt"), despite the fact that we celebrate different holidays and believe different things. Most importantly, religious freedom means respecting the beliefs of others, and, in the words of Pope Francis, renouncing the use of "religion ... for hatred and brutality". All in all, religious freedom is a special privilege; it should bring all people together and encourage "peace, tolerance, and respect".

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A Sociology of Religious Freedom

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Freedom of and from religion is a key concept to understand the place of religious and spiritual identities, beliefs, and practices in the contemporary world. Sociology can assist in explaining why and how religious freedom holds a variety of meanings in society and may be perceived differently by individuals, social groups, and institutions. This book addresses three major questions of a sociology of religious freedom. First, how to define religious freedom as a multidimensional concept considering its complex and controversial nature. Second, what are the recurrent sociological conditions and relevant social perceptions that will foster an understanding of religious freedom in varying political, legal, and socioreligious contexts. Third, what are the mechanisms of social implementation of religious freedom that contribute to making it a fundamental value of human rights culture in a society. The book suggests that a sociological definition of religious freedom requires taking into account historical, philosophical, legal, religious, and political considerations of a given society. By disclosing the interplay of structural conditions and individual and group perceptions, sociology develops an understanding of the normative and value-laden nature of religious freedom, as well as its societal functions. The book argues that the social mechanisms of incorporation of religious freedom principles into institutional culture are as important as its legal implementation.

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Full Transcript of Kamala Harris’s Democratic Convention Speech

The vice president’s remarks lasted roughly 35 minutes on the final night of the convention in Chicago.

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By The New York Times

• Aug. 23, 2024

This is a transcript of Vice President Kamala Harris’s speech on Thursday night in which she formally accepted the Democratic Party’s nomination for the presidency.

OK, let’s get to business. Let’s get to business. All right.

So, let me start by thanking my most incredible husband, Doug. For being an incredible partner to me, an incredible father to Cole and Ella, and happy anniversary, Dougie. I love you so very much.

To our president, Joe Biden. When I think about the path that we have traveled together, Joe, I am filled with gratitude. Your record is extraordinary, as history will show, and your character is inspiring. And Doug and I love you and Jill, and are forever thankful to you both.

And to Coach Tim Walz. You are going to be an incredible vice president. And to the delegates and everyone who has put your faith in our campaign, your support is humbling.

So, America, the path that led me here in recent weeks was, no doubt, unexpected. But I’m no stranger to unlikely journeys. So, my mother, our mother, Shyamala Harris, had one of her own. And I miss her every day, and especially right now. And I know she’s looking down smiling. I know that.

So, my mother was 19 when she crossed the world alone, traveling from India to California with an unshakable dream to be the scientist who would cure breast cancer.

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