Constitutional Law

Modern Religious Liberty Doctrine Is Grossly Unbalanced

Serious fault lies with originalists, who distort Founding anti-establishment liberty as discrimination against religion.

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There are a couple of disturbing truths about religious liberty doctrine in this country that must be confronted. First, unlike free exercise religious liberty, which is more protected in modern society than it was at the Founding (good!), modern jurists have significantly narrowed First Amendment anti-establishment liberty by stripping from it all original meaning and intent. Second, those who embrace and now further the demise of original anti-establishment liberty include prominent “originalists.”

To be clear, I believe that originalism, a method of statutory or constitutional interpretation that adheres to “original” meaning, provides an undeniable appeal in constitutional interpretation. Therefore, criticism of originalism, especially in the context of free conscience religious liberty, is not a welcome development to me personally. The powerful ideals of free conscience that James Madison fought for so long and so hard to enumerate deserve to have their original meaning respected.

An account of Madison’s views on anti-establishment liberty can be found in his work Memorial And Remonstrance Against Religious Assessments, made in response to a proposed religious assessment bill in his state of Virginia. The assessment bill Madison was opposing in Memorial would have permitted tax assessments for churches, but granted citizens the complete autonomy to select which church could receive the funds. Moreover, exceptions for Quakers and Mennonites, which did not utilize clergy, were granted in the bill along with all undesignated funds directed to the public general fund to develop “seminaries of learning” that were not required to be religious. However, despite the assessment bill being nonpreferential to any religion or even to religion itself, and despite that it gave individual citizens complete autonomy to direct the funds, Madison opposed and ultimately defeated it on free conscience grounds.

According to Madison, using civil support mechanisms to support religion always violated the free conscience of citizens, even if no taxpayer objected. To allow civil support was for Madison a contradiction to religion itself “for every page of it disavows a dependence on the powers of this world.” Civil support for religion also presented “a contradiction in terms” to Madison because it weakened “those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author.”  In other words, Madison felt religion stood in no need of civil assistance, and to provide aid, even neutrally applied as it was in the assessment bill he was opposing (and how funding is justified today), ultimately undermines religion’s authority.

Not every state adopted Madison’s view. Indeed many early states maintained established churches well into the 19th century. Madison was able to convince Congress however, to adopt his principled version of religious liberty in the First Amendment (see Justice Souter’s concurring opinion in Lee v. Weisman). That early states maintained established churches while the federal government prohibited such arrangements did not present any constitutional concerns at first. It was not until the 14th Amendment’s Due Process Clause incorporated Bill of Rights protections to the states, including the First Amendment’s Establishment Clause, that those early forms of state establishment became unlawful.

Unfortunately, despite Madison’s stated intent behind what is now the only applicable anti-establishment liberty standard, many originalists embrace a conjured modern doctrine where denials of civil support to religion amount to impermissible discrimination to free exercise. In essence, the modern doctrine of religious liberty has pitted original free exercise and anti-establishment liberty against one another and the resulting harm to free conscience is profound.

Because government funding is allowed, even encouraged, many religious organizations are now dependent on civil funding for their operating budgets. A recent study found that within the largest religious service groups “government monies dwarf all other sources of funding.” I can imagine nothing more anathema to Madison’s intent for free conscience religious liberty as articulated in Memorial than this result. But another harm exists, far more dangerous than doctrinal inconsistency, to such pervasive government funding of church operations.

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As churches now operationally dependent on civil support mechanisms, their functions logically become seen as extensions of politics and government action. The result is shifts in the political order are portrayed as violent threats to religion. The fear of unrest is amplified given we are now living in an “unprecedented moment” in our nation’s history. Those for whom religion possesses no prominent role in daily life are increasingly living alongside those for whom religion plays a vital role. However, this fear of unrest need not exist even with such a diverse population. In fact, religious diversity is what has always made Madison’s form of secular government separate from religious authority a necessary bulwark to preventing such unrest. Although religious groups have also expressed alarm at a one-sided approach to religious liberty and the social harm it is causing, courts have remained steadfast in their weighted doctrine.

The fact is, without separate operational funding, the entire concept that Madison intended of religious separation from government becomes meaningless. Relying on past practices of early states to justify current funding of religion is inexcusable from an originalist perspective that should be the first to recognize early states were not beholden to Madison’s First Amendment standard as they are now.

Justices such as Neil Gorsuch and Clarence Thomas, avowed textualist and originalists, nevertheless insist that withholding civil support from religion is tantamount to religious discrimination by the state, not the necessary function of religious liberty Madison intended such separation to be. Justice Thomas has gone so far as to question the validity of Establishment Clause incorporation to the states. Because the views of Thomas and Gorsuch have no textual or historical justification, one is left with the inference that such views reflect personal desire. Originalism will remain open to significant criticism as long as its members refuse to apply an original standard to one of this country’s most critical founding liberties.

Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him to discuss his column.

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