THE DEVELOPMENT OF AMERICAN RELIGIOUS FREEDOM

Religious freedom in the United States, often called the “first freedom,” is such a unique concept because of the variety of philosophical threads woven together to produce it. It reflects contributions from Christian theology, from Enlightenment philosophy, and the concept of a balance of powers. Baptists, such as John Leland and Isaac Backus, influenced James Madison as he crafted the First Amendment. From Enlightenment Deism and the influence of the French philosophes, Thomas Jefferson influenced Madison regarding ideas about freedom of conscience for the individual. The Establishment Clause should be interpreted through its counterpart, the Free Exercise Clause, and vice-versa.

The First Amendment to the Bill of Rights contains those famous sixteen words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Historically, some scholars, such as Daniel Driesbach, argue that the reference to “Congress” applied only at the federal level and did not restrict state governments from establishing a religion. Other scholars, such as Derek Davis, argue that the religion clauses contain an inchoate principle of religious freedom that developed over time to prohibit even state establishments of religion. The historical record reveals that during the decades following the Founding Era (1776-1789), state establishments of religion were disallowed (disestablished). As the nation continued to expand westward, to receive more immigrants, and to experience various revivals of religion, each with its subsequent new religious group, the principle of religion freedom became more acutely important.

The Civil War played a central role in the development of the idea of religious freedom for the individual at the state level. The Fourteenth Amendment conveyed all the rights of citizenship to those who were former slaves. In so doing, the prohibitions and obligations placed upon the federal government (“Congress”) were now applied as well to the state governments, including the First Amendment religious freedom guarantees. Although civil rights for all U.S. citizens were initiated with the Emancipation Proclamation, it was not until the Civil Rights Act of 1965 that they were implemented.

From the 1940s onward, the Supreme Court has reviewed numerous cases dealing with religious freedom, such as the right to proselytize, no federal aid to parochial schools, no formal, state-sanctioned prayers in public schools, school vouchers, the right to practice one’s faith in the workplace, religious symbols on public display, etc.

Current trends indicate the Supreme Court that has ended the “era of separation” of church and state, and is now moving in the direction of the “era of accommodation” whereby government is allowed to favor religion, provided it does so equally among all religions. Such a trend flies in the face of the ideas of the Founding Fathers regarding the proper role between government and religion; it reflects revisionist scholarship regarding American history; and, it does not reflect a profound understanding of the dynamic interplay between the two religion clauses of the First Amendment.