The Free Exercise Clause and the ‘positive good’ of religion
The first words of the Bill of Rights are “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Those words, the result of a legislative compromise, introduced into our Constitution the idea that religion is a positive good.
It’s clear what establishment of religion means: Government privileges one church (or form of institutional religion) over all the others, as in the Church of England. Congress can’t do that!
And so it’s clear what religion means — an organized body of thought and action. Every American is free to be an observant member of a relational institution where people share the truth about God together. Free exercise is freedom of religion, the freedom to orient one’s thought and action around the truth of who each of us as a creature.
Before the addition of the religion clauses of the First Amendment, the Constitution was silent on religion, except to prohibit religious tests for office. God himself was conspicuously absent, and some have even suggested that ours was the first anti-ecclesiastical founding. Religion, in this view, becomes the freedom of the wholly privatized and even isolated conscience, with no social or political significance at all.
But with the Free Exercise Clause, the distinction between state and church — which is part of the distinction between state and society — showed up in our Constitution. The presumption of the Constitution became that each of us is a social and religious being, open to the truth about the God who is not merely a political illusion.
Our Constitution is silent on God because the American forms of theology aren’t merely civil theology. And each of us is more than a mere citizen of the United States. Religion is an inviolable limit on both the omnipotence and omnicompetence of the state. Religious freedom is granted not only to particular individuals, but to the church as an organized society with its own authority over the souls of its members.
So when the Supreme Court has interpreted the Free Exercise Clause, one concern has been that individuals are able to live according to their religious convictions without political impediment.
Another concern of the Court, which has been more insistent in recent years in reaction to the intrusive mandates of big government, has been to protect the self-government of institutional religion.
In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the Court unanimously affirmed the “ministerial exception” to generally valid employment laws. Requiring a church, the Court said, “to accept or retain an unwanted minister ... interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”
A third concern, as Justice Anthony M. Kennedy explained in his concurring opinion in the 2014 Hobby Lobby case, is that free exercise also be understood as “the right to express ... [religious] beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic and economic life of our larger community.”
From Justice Kennedy’s view, part of the relational autonomy we all share is to bring one’s religious self-definition — a fundamental feature of personal significance — to bear in every dimension of the relational life each of us shares with others.
Free exercise doesn’t mean that an American citizen can simply exempt himself or herself from a valid law. A Catholic American president, for example, has to enforce the current laws concerning abortion, although he or she can and should deploy all constitutional means available to have them changed. And a Baptist county clerk has to marry two members of the same sex if he or she wants to remain a clerk.
A fear today is the recently announced right to same-sex marriage will inevitably intrude upon the freedom of the churches to define and organize themselves according to a different (often sacramental) understanding of what marriage. Religious institutions fear they will either have to change to conform to the most recent definitions of “nondiscrimination” or be ostracized from political life under our Constitution and denied benefits available to all good citizens.
There’s already some evidence to validate that fear.
But Justice Kennedy, in his 2015 Obergefell (same-sex marriage) opinion for the Court, showed us a way out: He understood marriage as a fundamental right protecting an indispensable relational institution that’s only deformed when arbitrarily defined by government. All that needs to be done is to accord the same dignity to the church (or other form of institutional religion), and that’s what the Free Exercise Clause, properly understood, does.
And maybe even President-elect
Before the addition of the religion clauses of the First Amendment, the Constitution was silent on religion, except to prohibit religious tests for office. God himself was conspicuously absent, and some have even suggested that ours was the first anti-ecclesiastical founding.
Trump will show us his own path: He has no interest, of course, in undoing the right to same-sex marriage. But he’s also pledged to protect the churches from the mandates of big government, and there’s no denying that he got a huge amount of support from voters who are concerned — above all — about free exercise of religion.