With regard to the assumptions of the First Amendment Religious
Liberty clauses, we hold three to be chief:
- The Inalienable Right:
Nothing is more characteristic of humankind than the natural and inescapable
drive toward meaning and belonging, toward making sense of life and finding
community in the world. As fundamental and precious as life itself, this
"will to meaning" finds expression in ultimate beliefs, whether theistic or
non-theistic, transcendent or naturalistic, and these beliefs are most our
own when a matter of conviction rather than coercion. They are
most our own when, in the words of George Mason, the principal
author of the Virginia Declaration of Rights, they are
"directed only by reason and conviction, not by force or violence."
As James Madison expressed it in his Memorial and Remonstrance,
"The Religion then of every man must be left to the conviction
and conscience of every man; and it is the right of every man
to exercise it as these may dictate. This right is in its
nature an unalienable right."
Two hundred years later, despite dramatic changes in life and a
marked increase of naturalistic philosophies in some parts of
the world and in certain sectors of our society, this right to
religious liberty based upon freedom of conscience remains
fundamental and inalienable. While particular beliefs may be
true or false, better or worse, the right to reach, hold,
exercise them freely, or change them, is basic and
non-negotiable.
Religious liberty finally depends on neither the favors of the
state and its officials nor the vagaries of tyrants or
majorities. Religious liberty in a democracy is a right that
may not be submitted to vote and depends on the outcome of no
election. A society is only as just and free as it is
respectful of this right, especially toward the beliefs of its
smallest minorities and least popular communities.
The right to freedom of conscience is premised not upon
science, nor upon social utility, nor upon pride of species.
Rather, it is premised upon the inviolable dignity of the human
person. It is the foundation of, and is integrally related to,
all other rights and freedoms secured by the Constitution. This
basic civil liberty is clearly acknowledged in the Declaration
of Independence and is ineradicable from the long tradition of
rights and liberties from which the Revolution sprang.
- The Ever Present Danger: No threat to freedom of
conscience and religious liberty has historically been greater
than the coercions of both Church and State. These two
institutions--the one religious, the other political--have
through the centuries succumbed to the temptation of coercion
in their claims over minds and souls. When these institutions
and their claims have been combined, it has too often resulted
in terrible violations of human liberty and dignity. They are
so combined when the sword and purse of the State are in the
hands of the Church, or when the State usurps the mantle of the
Church so as to coerce the conscience and compel belief. These
and other such confusions of religion and state authority
represent the misordering of religion and government which it
is the purpose of the Religious Liberty provisions to prevent.
Authorities and orthodoxies have changed, kingdoms and empires
have come and gone, yet as John Milton once warned, "new
Presbyter is but old priest writ large." Similarly, the modern
persecutor of religion is but ancient tyrant with more refined
instruments of control. Moreover, many of the greatest crimes
against conscience of this century have been committed, not by
religious authorities, but by ideologues virulently opposed to
traditional religion.
Yet whether ancient or modern, issuing from religion or
ideology, the result is the same: religious and ideological
orthodoxies, when politically established, lead only too
naturally toward what Roger Williams called a "spiritual rape"
that coerces the conscience and produces "rivers of civil
blood" that stain the record of human history.
Less dramatic but also lethal to freedom and the chief menace
to religious liberty today is the expanding power of government
control over personal behavior and the institutions of society,
when the government acts not so much in deliberate hostility
to, but in reckless disregard of, communal belief and personal
conscience.
Thanks principally to the wisdom of the First Amendment, the
American experience is different. But even in America where
state-established orthodoxies are unlawful and the state is
constitutionally limited, religious liberty can never be taken
for granted. It is a rare achievement that requires constant
protection.
- The Most Nearly Perfect Solution: Knowing well that "nothing
human can be perfect" (James Madison) and that the Constitution was not
"a faultless work" (Gouverneur Morris), the Framers nevertheless saw
the First Amendment as a "true remedy" and the most nearly perfect
solution yet devised for properly ordering the relationship of
religion and the state in a free society.
There have been occasions when the protections of the First
Amendment have been overridden or imperfectly applied.
Nonetheless, the First Amendment is a momentous decision for
religious liberty, the most important political decision for
religious liberty and public justice in the history of
humankind. Limitation upon religious liberty is allowable only
where the State has borne a heavy burden of proof that the
limitation is justified--not by any ordinary public interest,
but by a supreme public necessity--and that no less restrictive
alternative to limitation exists.
The Religious Liberty clauses are a brilliant construct in
which both No establishment and Free exercise serve the ends of
religious liberty and freedom of conscience. No longer can
sword, purse and sacred mantle be equated. Now, the government
is barred from using religion's mantle to become a confessional
State, and from allowing religion to use the government's sword
and purse to become a coercing Church. In this new order, the
freedom of the government from religious control and the
freedom of religion from government control are a double
guarantee of the protection of rights. No faith is preferred or
prohibited, for where there is no state-definable orthodoxy,
there can be no state-punishable heresy.
With regard to the reasons why the First Amendment Religious
Liberty clauses are important for the nation today, we hold
five to be pre-eminent:
- The First Amendment Religious Liberty provisions have
both a logical and historical priority in the Bill of Rights.
They have logical priority because the security of all
rights rests upon the recognition that they are neither given
by the state, nor can they be taken away by the state. Such
rights are inherent in the inviolability of the human person.
History demonstrates that unless these rights are protected our
society's slow, painful progress toward freedom would not have
been possible.
- The First Amendment Religious Liberty provisions lie
close to the heart of the distinctiveness of the American
experiment. The uniqueness of the American way of
disestablishment and its consequences have often been more
obvious to foreign observers such as Alexis de Tocqueville and
Lord James Bryce, who wrote that "of all the differences
between the Old world and the New, this is perhaps the most
salient." In particular, the Religious Liberty clauses are
vital to harnessing otherwise centrifugal forces such as
personal liberty and social diversity, thus sustaining
republican vitality while making possible a necessary measure
of national concord.
- The First Amendment Religious Liberty provisions are the
democratic world's most salient alternative to the totalitarian
repression of human rights and provide a corrective to
unbridled nationalism and religious warfare around the world.
- The First Amendment Religious Liberty provisions provide
the United States' most distinctive answer to one of the
world's most pressing questions in the late-twentieth century.
They address the problem: How do we live with each other's
deepest differences? How do religious convictions and
political freedom complement rather than threaten each other on
a small planet in a pluralistic age? In a world in which
bigotry, fanaticism, terrorism and the state control of
religion are all too common responses to these questions,
sustaining the justice and liberty of the American arrangement
is an urgent moral task.
- The First Amendment Religious Liberty provisions give
American society a unique position in relation to both the
First and Third worlds. Highly modernized like the rest of
the First World, yet not so secularized, this society--largely
because of religious freedom--remains, like most of the Third
World, deeply religious. This fact, which is critical for
possibilities of better human understanding, has not been
sufficiently appreciated in American self-understanding, or
drawn upon in American diplomacy and communication throughout
the world.
In sum, as much if not more than any other single provision in
the entire Constitution, the Religious Liberty provisions hold
the key to American distinctiveness and American destiny. Far
from being settled by the interpretations of judges and
historians, the last word on the First Amendment likely rests
in a chapter yet to be written, documenting the unfolding drama
of America. If religious liberty is neglected, all civil
liberties will suffer. If it is guarded and sustained, the
American experiment will be the more secure.