As Americans fight to retain their religious liberty, a look at what is at stake
By Elizabeth Shaw & Michael Novak
On this of all Fourths of July, two things about the American tradition of religious liberty are worthy of note. First, the American conception of religious liberty is a tradition unto itself; it is exceptional, with “no model on the face of the globe” (Federalist 14). Second, it is framed in universal terms so that it belongs not just to Americans, but to all humans — and not just to Christians, but to believers of all stripes and kinds. In his autobiography, Thomas Jefferson wrote about the Virginia Bill for Establishing Religious Freedom (enacted in 1786):
Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting “Jesus Christ,” so that it would read “A departure from the plan of Jesus Christ, the holy author of our religion”; the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.
The crux of the original American argument for religious liberty is found in three documents of the Founding period: the Virginia Declaration of Rights (1776), the aforementioned Bill, and James Madison’s Memorial and Remonstrance against Religious Assessments (1785).
The Virginia Declaration of Rights defines religion as “the duty which we owe to our Creator, and the manner of discharging it.” This was the definition used throughout the Founding period, codified in Webster’s dictionary in 1828. This definition was held to be self-evident. For anyone who understands herself as a creature, it is self-evident that she owes her Creator at least gratitude; and then, upon contemplating the immensity of his creation, the worship due to a being of a higher, indeed altogether other, order. Furthermore, this duty “can be directed only by reason and conviction, not by force or violence.”
Thomas Jefferson adds two further notes to this conception. The first is this: “Almighty God hath created the mind free, and manifested his Supreme will that free it shall remain.” And second, human persons exercise this freedom, not by caprice, but only by a personal understanding and reasoned grasp of the facts present to them. As the opening line of the Bill notes: “the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds.”
It is worth lingering on this point about the role of reason. Pope Benedict makes so much of it in his Regensberg lecture (2006) that he condemns violence done in the name of religion for its unreason: “not to act in accordance with reason is contrary to God’s nature.” Benedict’s reprise of this Jeffersonian vein of thought is further proof that the American claim is universal and not peculiar to America.
As James Madison makes clear in his Remonstrance, the right to fulfill one’s duty of gratitude and worship is not only self-evident, but “unalienable,” and in two senses. First, it is unalienable because this duty “must be left to the conviction and conscience of every man.” For “the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.” Thus, this duty inheres singly in each person, and cannot be shucked off onto any other, not mother or father or other loved one, nor any other human being whatsoever. It is inescapably a personal responsibility.
Second, it is unalienable precisely insofar as it is a duty written into human nature, prior to the conventions and obligations of civil society. Madison writes: “This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” This duty to God cannot be interfered with by any lesser authority. Even to attempt to do so would be an abuse both of the Creator and of the individual.
On this Fourth of July, religious people of every American tradition are meditating as never before on the foundations of the American practice of religious liberty. On this Fourth of July, as on every other, we celebrate those sacred words of our Founding: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” And we celebrate also, as implied in that affirmation, the first clause of the First Amendment to our Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This year this meditation is more important than ever. For the actions of our government have suddenly made a radical and troubling break from the American tradition of religious liberty. With the force of federal law, President Obama’s Department of Health and Human Services has claimed to define what a religious organization is. The definition is narrow and legalistic: “one that (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets.”
This definition falls woefully short of the full Jewish and Christian conception of religion. True religion is to care for the widow and the orphan, Deuteronomy teaches, and the Sermon on the Mount carries through the same theme. In their view of religion, Jews and Christians include not just worship, and not just services to their own fellow believers, but schools, hospitals, soup kitchens, homeless shelters, prison ministries, adoption services, adult-care services, addiction treatment centers, and so on, open to all who are in need. It is only through its continuation in such works that Jewish and Christian worship proves its authenticity. Indeed, such institutions have come into being precisely as religious ministries, as essential to the self-understanding of their sponsoring religious bodies.
The Obama administration’s radical break from the fundamental principle of our nation’s life, the most flagrant in the history of this nation born of and for liberty of conscience, is opposed by the swelling ranks of people of nearly all religious traditions in the land. This radical break is an offense against every citizen and also against God, the Almighty, the Creator, from Whom all our rights spring.
The Supreme Court has left standing the Affordable Care Act. There remain 23 lawsuits pending in 14 states and the District of Columbia, with a total of 56 plaintiffs arguing against the HHS mandate as an infringement of the American understanding and practice of religious liberty. That mandate springs from a new principle that, if not refuted, would lead from precedent to precedent toward the full domination of religion by the federal state.
Madison emphasized this threat at the very beginning: “it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.”
Elizabeth Shaw received her doctorate in philosophy from Catholic University. Her work has been published in First Things, Modern Age, and The Review of Metaphysics. Michael Novak is now a distinguished visiting professor at Ave Maria University in Florida, and has been a regular contributor to National Review.
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