The Free Ex­er­cise Clause and the ‘pos­i­tive good’ of re­li­gion

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Peter Au­gus­tine Lawler Peter Au­gus­tine Lawler, Ph.D., is Dana Pro­fes­sor of Gov­ern­ment at Berry Col­lege, ed­i­tor of the quar­ter­lies, Mod­ern Age and Per­spec­tives on Po­lit­i­cal Sci­ence, and au­thor, most re­cently, of “Amer­i­can Here­sies and Higher Ed­u­cati

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.

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