so today i want to talk about one of the most important of all the liberties we possess religious liberty individuals must be free to worship god according to the dictates of the religious convictions and to act upon those convictions whenever possible to deny people this freedom is fundamentally unjust unfortunately governments often desire to promote and protect what they consider to be true religion this is true even when christians are in charge from 325 when emperor constantine called the council of nicaea to the founding of the american colonies it was common for civic authorities to promote
again what they consider to be true religion this often included discriminating against or even persecuting those who deviated from the ruler's understanding of christian orthodoxy america's earliest colonists from the north to the south were not immune from this temptation fortunately or should i say providentially the way americans approached religious liberty changed in important ways between the early colonies and the founding era they did so for several reasons but i'll just mention too first in spite of the desire for homogeneity always from the start america attracted diverse groups of immigrants from england and continental europe even
in congregational new england in the anglican south there were from an early date to centers in the middle colonies states like pennsylvania and new york were always a muddle these colonists had to learn how to live together peacefully but even more important colonial officials were confronted with powerful arguments for the liberty of conscience men such as the quaker william penn the baptist roger williams elisha williams john leland and others contended that a proper understanding of the bible requires religious liberty for all these arguments convinced early american colonies to become increasingly tolerant and by the american
founding many civic leaders were coming to understand that religious liberty is a natural right not simply a gift of the state debates in virginia illustrate this shift well in 1776 the virginia convention created a commit committee to write a bill of rights this task largely fell to george mason of virginia who drafted what became article 16 of the declaration of rights it reads and i'm quoting here that as religion or the duty which we owe to our divine and omnipotent creator and the manner of discharging it can be governed only by reason and conviction not
force or violence and therefore that all men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience unpunished and unrestrained by the mastery that draft which was printed and circulated throughout the states was enormously influential but it was not the draft that became law james madison in his first significant public act objected to the use of the word toleration in the article believing that it implied that religious liberty was a grant from the state that could be revoked at will the virginia convention agreed and the article was amended to
make it clear that the free exercise of religion is a right not a privilege granted by the state notice while in passing that mason grounds his argument on the duty which we owe to our divine and omnipotent creator that persons must understand is but they must fulfill as best they understand all right so by the end of the revolutionary era every state offered significant protection for religious liberty the federal constitution of 1787 did not but only because its supporters believed that the national government did not have the delegated power to pass laws interfering with religious
beliefs or practices in the face of popular outcry the first congress proposed and the states ratified a constitutional amendment prohibiting congress from restricting the free exercise of religion article 6 of the us constitution also prohibits religious tests for office now in the ratification debate some anti-federalists argue that this would permit a jew or a muslim or an atheist to be elected to federal office the federalists responded that this outcome was unlikely although today we do have jews and muslims and atheists serving in congress this is absolutely appropriate as religious liberty belongs to all citizens not
just christians it's a liberty protected by article six so the exact scope of religious liberty protected by the first amendment has been hotly debated but at a minimum it prohibits congress from in the words of james madison compelling men to worship god in the any manner contrary to their conscience it certainly means more than that but exactly how much more is controversial particularly divisive even among originalists is a question of whether the free exercise clause requires religious exemptions to general neutrally applicable laws now the founders knew of these sorts of conflicts and they addressed some
by creating something known as religious accommodations sometimes called religious exemptions let me give you just one example military service so among the many roles of the civil government few are as important as national security in the modern era states and nations have regularly relied upon compulsory military service or conscription to raise armies religious pacifists often ask to be excused from such service now i want you to consider for a minute the government's options when faced with these requests rather than force pacifists to act against their sincerely held religious convictions civic leaders might eliminate the draft
requirement altogether but assuming conscription is necessary for self-defense doing so might harm the public conceivably dramatically on the other hand the state might just go ahead and force pacifists to serve in the military or jail or execute them if they refuse alas too many governments have taken this approach fortunately america's civic leaders have chosen a third way most early colonies require that adult males serve in the military members of the society of friends better known as quakers were often pacifists who refused to do so as early as the 1670s a few colonies began excusing them
for military service provided they pay a fine or a higher substitute all colonies did so by the mid mid-18th century often expanding accommodations to include other religious citizens during the war for american independence the continental congress supported these accommodations with the following july 1875 resolution as there are some people who from religious principles cannot bear arms in any case this congress intend no violence to their consciences but earnestly recommend it to them to contribute liberally in this time of universal calamity to the relief of their distressed brethren in several colonies and to do all other
services to their oppressed country which they came consistently with their religious principles so congress here is explicitly endorsing religious exemptions or accommodations to protect pacifist fourteen years later during the debates in the first federal congress of the bill of rights james madison proposed a version of what became the second amendment that stipulated that quote no person religiously scrupulous shall be compelled to bear arms his proposal was approved by the house but not by the senate and it was ultimately rejected but only because founders thought that legislatures should pass such protections and i'm happy to report
that they did states and later congresses regularly provide religious pacifists with the option of serving their country in ways other than fighting in world war one pacifists from certain denominations were permitted to do alternative service and in world war ii until the present day all religious pacifists are permitted to do so thank goodness they are well let's fast forward so i hope you're with me and agree that we should protect the rights of religious minorities this is the right thing to do religious majorities can protect themselves as religious minorities who need protection generally i'm pleased
to report an american the state and national governments have only become better at protecting religious liberty by the mid-20th century with few if any exceptions no government attempted to ban religious belief or practice per se threats to religious liberty came almost solely from neutral laws of general applicability we've already talked about military service but other areas includes things such as oath requirements laws requiring school children to salute the american flag bans on narcotics such as peyote and compulsory school attendance laws in the latter part of the 20th century the supreme court developed a framework for
thinking through how to accommodate religious objectors to general laws in 1963 under the leadership of the liberal justice william j brennan the court adopted the principle that government actions that burden a religious practice must be justified by a compelling state interest later the coordinated requirement that this interest must be pursued in the least intrusive means possible the least restrictive means possible when a majority of supreme court justices repudiated this test in the 1990 case of oregon versus smith a case involving the use of peyote in oregon congress enacted a law called the religious freedom restoration
act of 1993 to restore it now hold on to your hats this is amazing this bill was passed in the house of representative without a dissenting vote by 97 to 3 in the senate and it was signed into law by president bill clinton democrats and republicans could come together to protect religious liberty there was a consensus in the late 20th century that religious liberties should be protected whenever possible alas in the 21st century the consensus seems to be unraveling robert p george at princeton university observed a few years ago that there is a massive assault
on religious liberty going on in this country right now now most civic leaders in juris remain committed to religious liberty in the abstract but support for protecting citizens from neutral laws that infringe upon their religious convictions has deteriorated let me give you a few instances at the national level the obama administration showed little concern for religious liberty when it provided when it required businesses to provide contraception contraceptive devices and abortions to employees even though these business owners had religious convictions against doing so i'm thinking of the hobby lobby case here the obama administration also offered
a rare challenge to the doctrine of ministerial exception a legal protection which holds that religious group should be free to choose in the words of chief justice john roberts quote who will preach their beliefs teach their faith and carry out their mission in the academy professors marcy hamilton brian leider richard frager micah schwartzman john corvino and others have made well-publicized arguments contending that citizens should sell them if ever be exempted from general general laws that are neutrally applied because of the religious convictions particularly worrisome is their contention that religious commitments are no more important than
commitments one might have to a baseball team or a game of chess on the legal front others have contended that religious accommodations or at least some of them violate the establishment clause from an originalist perspective these arguments have absolutely no merit the rejection of religious liberty often comes with outright animus or hatred towards people of faith for in for example martin arcastro chair of the united states civil rights commission noted in his personal statement for a 2016 report that quote the phrases religious liberty and religious freedom will stand for nothing except hypocrisy so long as
they were made code words for discrimination intolerance racism sexism homophobia islamophobia christian supremacy or any form of intolerance a majority of these commissions were commissioners recommended repealing or contained or curtailing laws passed by bipartisan majorities that have offered significant protection to persons of faith now castro is referring to cases like the masterpiece cake shop versus colorado civil rights commission this litigation involved jack phillips a baker who declined to bake a cake to celebrate a same-sex wedding ceremony in 2012. phillips is a christian who runs his store according to his religious convictions so he refuses to
make cakes for instance celebrating divorces or celebrating halloween or celebrating same-sex marriage ceremonies among his central arguments is that when he is creating a custom cake he is using his creative talents to communicate a message he is willing to sell the same same-sex couple any pre-made item in a store but he cannot in good conscience celebrate same-sex marriage by baking a custom cake the colorado civil rights commission found that phillips violated a state ordinance that prohibits discrimination on the basis sexual orientation in doing so they rejected his arguments that the first amendment both freedom of
religion and freedom of speech protected his decision the united states supreme court ruled that the commission had acted with such clear anti-religious animus that it violated the first amendment's free exercise clause but these are very narrow grounds phillips is already being sued again and if the commission hides its anti-religious bias he may not prevail next time around religious liberty cannot depend upon anti-religious bigots not being open about their animus america's founders were profoundly influenced by christianity but they did not design a constitutional order only for their fellow believers this fact is understood by most civic
leaders and jurists but alas there are exceptions to every rule for instance 28 of americans favor a ban on building mosques in their communities and some citizens continue to argue that the first amendment does not protect muslims the founders explicitly prohibited religious tests for federal office and they understood that doing so would permit a pagan a deist a muhammadian or a muslim to be elected they undoubtedly thought that some of these outcomes would not be ideal but others may well thought it would be better to vote for say a reasonable competence seek rather than an
irrational incompetent christian in 1790 george washington wrote a letter to the hebrew synagogue in newport rhode island at the time there were only about 2 000 jews in america so this was not a powerful constituency that needed to be cultivated nevertheless he proclaimed that and here i'm quoting all possess alike liberty and conscience in immunities of citizenship it is now no more that toleration is spoken of as if it was by the indulgence of one class of people then another enjoyed the exercise of their inherent natural rights for happily the government of the united states
which gives to bigotry no sanction to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasion their effectual support all who would live up to the founders ideal for the freedom of conscience must insist that except in the most extreme of circumstances every american has a right to live according to his or her religious convictions no matter how unpopular they may be this includes permitting floors not to participate in same-sex wedding ceremonies permitting jehovah's witnesses to not have to salute and pledge
allegiance to the american flag and allowing muslims to build mosque on the same terms that christians can build churches the moment we start picking and choosing which convictions we protect and which we don't is the moment we abandon the founder's commitment to defending what many of them called the sacred rites of conscience thank you very much
