SPRING 2020 | ISSUE NO. 3
The Quill A T
P A L M
B E A C H
A T L A N T I C
Conversations & Commentary from The LeMieux Center for Public Policy U N I V E R S I T Y
financial favor of the civil state). And so, Americans learned early in the colonial experience that, if they were to live side by side in relative harmony, they must work out the terms of – initially – religious toleration and – eventually – religious liberty. A clear articulation of religious liberty has been a great American contribution to political thought. What are the key themes and principles of this distinctively American vision of religious liberty?
Toleration Versus Liberty When American colonists, believing they had been deprived of their rights and liberties as Englishmen, fought for and secured independence from Great Britain, they identified religious freedom among the “blessings of liberty” they wanted to protect in their new constitutional republics. The sacred rights of conscience featured prominently in post-independence state declarations of rights and constitutions.
Religious Liberty in the American Experience By DANIEL L. DREISBACH
The pursuit of religious liberty is a defining theme in the American political experiment. In the traditional telling of the story, early colonists crossed the Atlantic Ocean’s treacherous waters to escape religious persecution in the Old World and to search for religious liberty in the New World. The opportunity to worship God and practice their faith without fear of persecution drew countless refugees to America’s shores.
At the time of independence, most of the colonies maintained religious establishments (like the state churches in European nations). This arrangement favored one church and often subjected religious dissenters to a variety of disabilities under the law. The separation from Great Britain prompted Americans to reevaluate the prudential and constitutional role of religion in their respective states. In the decades following independence, debates in the states regarding religion’s public role and relationship with the civil state produced diverse church-state arrangements. Nowhere was the debate more dramatic and, in the end, influential than in Virginia.
The many immigrants from diverse sects attracted to the New World by the promise of religious liberty resulted in an extraordinary religious pluralism. This diversity of sects was a potential source of rivalry and conflict among denominations competing for adherents and public recognition (and, sometimes, the legal and 1
Anglican aristocrats of the Tidewater. All citizens – including religious dissenters and nonconformists – enjoyed absolute equality in religious belief.
CONTINUED FROM FRONT
The Virginia Convention that convened in Williamsburg in May 1776 was arguably the most noteworthy political body ever assembled in the commonwealth’s history. On May 15, the convention passed a resolution instructing the commonwealth’s delegates at the Continental Congress to press for independence from England. The assembly then appointed a committee to frame a declaration of rights and plan of civil government for the newly independent commonwealth. Among those appointed to the committee were George Mason and the young delegate James Madison.
Another significant insight regarding the appropriate scope of religious liberty emerged from the convention’s debates. Mason’s initial draft authorized a civil magistrate to restrict conduct if, “under Colour of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals.” Madison urged his fellow delegates to adopt a more expansive understanding of the free exercise of religion that disallowed the magistrate from interfering with “the free exercise of religion, . . . Unless the preservation of equal liberty and the existence of the State are manifestly endangered.” Mason, in short, gave the magistrate broad powers to restrain religious exercise that disturbed the peace and happiness of not only society but also individuals. Madison, by contrast, espoused a principle of no interference with “the free exercise of religion” except to preserve “equal liberty,” fundamental security, and the existence of the civil state. (The article, as adopted on June 12, eliminated altogether a clause qualifying religious exercise.)
Mason took the lead in crafting a provision in the Virginia Declaration of Rights protecting religious toleration. The declaration’s 16th and final article, adopted on June 12, 1776, declared that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Significantly, this clause, proposed by Madison, replaced Mason’s initial draft affirming that “all Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Although Mason’s language reflected the most enlightened, liberal policy of the age, it did not go far enough to satisfy Madison.
Adoption of Article 16, celebrated by religious dissenters across the commonwealth, unleashed a decade-long battle to establish religious liberty in Virginia, culminating in passage of the Virginia Statute for Establishing Religious Freedom. Drafted by Thomas Jefferson in 1777, the Virginia Statute is one of the most influential American documents on religious liberty. The bill failed to gain passage in 1779 when it was first introduced in the Virginia legislature, but it was eventually enshrined in Virginia law on January 16, 1786. In an eloquent preamble, Jefferson set forth reasons for religious freedom, among them that “Almighty God hath created the mind free” and willed that free it shall remain; the purest religion is propagated by reason and not by coercion; and it is “sinful and tyrannical” to compel a person to support a religion that “he disbelieves.” For these reasons, the statute provides “that no man shall be compelled to frequent or support any religious worship, place, or ministry . . ., nor shall otherwise suffer, on account of his religious opinions or belief; but
Madison’s revision emphasized one of the most important insights of American political thought: a state policy of religious toleration, he contended, is an inadequate substitute for religious liberty because it dangerously casts the right of religious exercise as a mere privilege that can be granted or revoked at the pleasure of civil authorities (often acting in concert with an established church) rather than as a natural, inalienable right. The right of religious exercise, Madison thought, was too important to be framed as a grant of governmental benevolence. Instead, he viewed religious liberty as a fundamental and irrevocable right, possessed equally by all citizens, located beyond the reach of civil magistrates and subject only to the dictates of a free conscience. Also key to Madison’s revision was the word “equally.” This underscored that the “unlearned” Baptists of the central Piedmont had religious rights equal to those of the “well-heeled” 2
that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
Some states have even adopted laws that compel religious adherents, businesses and faith communities to engage in practices contrary to their sincerely-held religious beliefs. A religious order of nuns, for example, was denied a religious exemption to a federal mandate requiring employers to provide contraceptives (including abortifacients) in their health insurance plans; health care professionals have been told they must participate in procedures (such as abortions) to which they object on religious grounds; artists (such as cake decorators and photographers) have been denied religious exemptions to nondiscrimination in public accommodations laws requiring them to use their creative services for same-sex ceremonies in violation of their deeply-held religious beliefs.
These discussions in Virginia and in other states over the definition and application of religious liberty set the stage for the adoption of the First Amendment to the U.S. Constitution in 1791 with its prohibitions on laws “respecting an establishment of religion” or inhibiting “the free exercise thereof.” Although there was no consensus then (or now) as to the precise meaning of this constitutional language, there was broad agreement that it meant at least two things. First, it prohibited the creation of a national church, like the ecclesiastical establishments in most European countries. The nonestablishment provision, however, did not require civil government to hold all religion in utter indifference or to strip public life of all religious discourse, values or symbols.
Too often the civil state is not merely neutral or indifferent toward religion; rather, it has pursued policies and laws contrary to traditional Christian beliefs and has imposed legal disabilities on those who, for reasons of conscience, fail to conform to state policies. The civil state, in short, is reverting to the old regime of toleration, abandoning a commitment to religious liberty that views the free exercise of religion as a natural, inherent right beyond the reach of civil magistrates. A state policy of toleration regards religious exercise as a mere privilege that can be granted or revoked at the will of the civil state. Increasingly, government authorities tolerate only those religious exercises and expressions aligned with its values and policies.
Second, the amendment protected citizens from actions by the national regime inhibiting the free exercise of religion. Although there is room to debate the precise scope of this freedom, at the very least the free exercise guarantee prevented Congress from compelling or prohibiting religious beliefs and practices. It affirmed a right to worship God – or not – according to the dictates of conscience, free from interference, discrimination, coercion or punishment by the national government.
Religious liberty, historically understood, acknowledges that believers owe obligations to God, apart from those owed to society and the civil state. Religion is a matter between the believer and God, and the believer owes account to none other than God for one’s faith and conscience. Religious liberty demands that the civil state respect and preserve the rights of conscience, free from government coercion, unless religious practices threaten fundamental safety.
Religious Liberty Under Assault Religious liberty, sadly, is under assault in America today. Followers of biblical Christianity frequently find themselves out of step with the values, policies, and laws of the secular state on a variety of issues, including human sexuality and marriage, sanctity of life and religious expression in public life. Despite the claims of religious adherents that their positions on these issues are dictated by religious convictions, the civil state increasingly compels conformity to its agenda and denies their appeals to the protections of religious liberty.
The policies of the civil state threatening this vision of religious liberty seek to silence the prophetic, counter-cultural voices of the believer 3
and wider faith community when they challenge, critique or dissent from the prevailing secular orthodoxies of the state. These revived state policies of toleration are designed to marginalize religious perspectives in the marketplace of ideas or coerce the community of faith to conform to, and even advocate for, the interests of the secular state – even when those interests are contrary to the dictates of the believer’s faith. The costs of fidelity to the countercultural calling of the believer and the church will, at times, be great. No matter the costs, no matter the pressures to conform, religious communities must remain faithful to the dictates of their faith. It is essential that citizens raise alarm at efforts to diminish, redefine or even take away this liberty.
Tony Blair speaks to LeMieux Center guests In February 2020, former British Prime Minister Tony Blair spoke to an overflow audience of students, faculty and community guests. He gave an insightful overview on a number of topics. Blair described how his background shaped his views as a politician, gave commentary on British politics in the Brexit era and provided vignettes on the UKUS relationship based on his interactions with former American presidents Bill Clinton and George W. Bush. Stay tuned for future events and special guests!
We must study the meaning of religious liberty, its theological and philosophical underpinnings and its development in the American tradition. We must be attentive to what is at stake in the current debates over the scope and application of religious liberty. And we must always be vigilant in defense of this precious gift of religious liberty.
Conclusion Freedom of religious belief and exercise in America is more imperiled today than at any time in living memory. As George Mason famously counseled in the Virginia Declaration of Rights, it is proper to make “recurrence to fundamental principles.” In our own time, when the commitment to religious liberty is endangered, it is fitting that we reflect on the origins and understandings of that most fundamental of American principles – religious liberty. Daniel L. Dreisbach is a professor at American University in Washington, D.C. He earned a D.Phil. at Oxford University, where he studied as a Rhodes Scholar, and a J.D. from the University of Virginia. He has authored or edited 10 books and numerous scholarly articles on the intersection of religion, politics and law in American public life, including Reading the Bible with the Founding Fathers (Oxford University Press, 2017) and Thomas Jefferson and the Wall of Separation between Church and State (New York University Press, 2002).
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From the desk of Senator LeMieux I am pleased to welcome you to the latest edition of The Quill! This publication highlights the LeMieux Center’s mission to provide a space for reasoned, thoughtful and civil discourse on pressing public policy issues confronting Florida, the United States and the world. Every quarterly issue includes an article written by a scholar, policy maker, journalist or other thought leader with the knowledge, expertise and prudence to inform the reader on topics of broad public interest. The Quill is but one aspect of the Center’s interests and activities. In addition, the Center’s Distinguished Speaker Series hosts luminaries such as former Prime Minister Tony Blair of the United Kingdom, Associate Justice Clarence Thomas of the United States Supreme Court and Dr. George Will, a well-known political commentator with the Washington Post. These speaking events, offered free of charge to the community, are held on the beautiful campus of Palm Beach Atlantic University.
Finally, the Freidheim Fellows program seeks to inculcate young people with the principles, perspectives and training to empower them to lead a new generation. Each year Palm Beach Atlantic students selected as Freidheim Fellows research and present their findings on public policy questions. Their public presentations are certainly one of the highlights of the year for me. The activities of the LeMieux Center would not be possible without the dedication and support of a number of individuals and organizations. I would like to take this opportunity to thank the president of Palm Beach Atlantic for the University’s strong support. It is a partnership that already has borne much fruit, and I firmly believe it will continue to make a difference in the life of this nation. Members of the LeMieux Center Board of Advisors deserve special commendation and thanks. Their energy, generosity, wisdom and leadership are an amazing testament to the commitment of these leaders to the broader public good.
George S. LeMieux U.S. Senator & Founder of The LeMieux Center for Public Policy
www.lemieuxcenter.org
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Center selects Freidheim Fellows
Palm Beach Atlantic University P.O. Box 24708 West Palm Beach, FL 33416-4708
Undergraduate students Benjamin DeHaan and Maria Landron were selected as Freidheim Fellows for The LeMieux Center. DeHaan’s research topic is NATO Revisited: Analysis of U.S. Foreign Policy. He will be mentored by Dr. James Todd, assistant professor of politics and chair of the politics department at PBA. Landron will be mentored by Dr. Francisco Plaza, professor of politics. Her topic is Beyond the Wall: Mexico and Central America. The fellows receive ongoing guidance for their research projects from former U.S. Senator George LeMieux and faculty experts. Read more:
go.pba.edu/freidheim LeMieux Center Advisory Board Brian P. Burns, Burns Law Enterprises, LLC. Jim Burns, Kohlberg Kravis Roberts & Co. James Donnelly, Castle Group Bob Dunkin, Cresset Wealth Advisors Mary Jo Finocchiaro, BRE Hotels & Resorts Frances Fisher, Dedicated Volunteer Mitzi Freidheim, Dedicated Volunteer Gay Hart Gaines, Dedicated Volunteer Robert Ganger, Gulf Stream Consulting Group Hannes Hunschofsky, Dedicated Volunteer Josh Kellam, ESG Companies
Michele Merrell, Merrell Consulting Group Mario Murgado, Brickell Motors Joe Negron, GEO Group, Inc. Beth Neuhoff, Neuhoff Communications Dr. Robert E. O’Neil, The Stronach Group John Radtke, Advisors Asset Management, Inc. J. Kimble Vardaman Ratliff, Jr., Southwood Family Holdings, LLC Richard Reikenis, Reikenis & Associates, LLC. Nick Sadowsky, UBS Financial Services Brad Saft, EverBright Media
Academic Advisors Dr. Robert Lloyd, Loreen Beisswenger Farish Chair for Political Thought, Palm Beach Atlantic University
Tom Rooney, Congressman & LeMieux Senior Fellow