The foundational ideal of religious freedom has been much lauded throughout American history, but like the ideal of equality, not much realized. It was less than 70 years ago the United States Supreme Court finally forbade states and cities from legislating overt religious dogma onto their citizens.
The fight for true freedom from religion continues, of course, as the efforts to establish religious tyranny have simply become slightly more covert. Sometime this month, SCOTUS will make a landmark decision on equality. And, natch, the American Reactionary Party, frustrated and hysterical as ever, has taken to pretending religious freedom is threatened by this.
So they’ve been deploying “religious freedom” bills across the country, meant to codify discrimination into states’ laws. Of course this discrimination in most cases is already perfectly legal because sexual orientation is not a protected class. Guess what is a protected class… religion.
Too often The Reactionaries are given a pass when they lay claim to this country’s founders. But the “Founding Fathers” were an extensive group of wildly diverse opinions. The upshot of their work was plenty of room for changeability and interpretation. Things have been in a state of change and interpretation ever since. The noble tradition has been to struggle toward, and sometimes even accomplish, the very best of our nature.
As American society presses toward progress, carrying the stragglers kicking and screaming, we might do well to appreciate a bit of the actual history.
Long before the Revolutionary War, the Quaker William Penn, of what was to become—you guessed it—Pennsylvania, and the Baptist Roger Williams, of Rhode Island, were arguing for religious freedom and separation of church and state. In fact, Thomas Jefferson’s phrase, oft cited in American jurisprudence, was based on a Williams construction.
But until 1940, the Free Exercise and Establishment clauses of the First Amendment were only legally applied to the federal government. That year, the U.S. Supreme Court in Cantwell v. Connecticut established that the Free Exercise Clause also applies to state government through the due process clause of the Fourteenth Amendment.
Seven years later, in 1947, the high court ruled in Everson v. Board of Education that the Establishment Clause does as well. Until then, states and cities could and did violate our rights to be free from the religious superstitions of others. Religious belief was used to justify everything from slavery, segregation and prohibition, to denying women voting rights and contraception.
In Everson, Justice Hugo Black wrote for the majority, “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.'”
Notably, the dissenting opinions in the case were even more firmly in favor of complete and total separation, criticizing Black’s majority decision for not logically following from his own definition of the Establishment Clause. This means that all of the justices were in agreement on the Establishment Clause applying not only to federal but also to state, and thus local, government.
The Establishment Clause originally came into our Bill of Rights at the hand of U.S. Rep. Fisher Ames, in 1789, with legal argument inspired by Thomas Jefferson’s Virginia Statute for Religious Freedom.
Jefferson wrote “that no man shall be compelled to… support any religious worship, place, or ministry whatsoever,” and added with no small amount of snark “that our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry.”
David DeWitt is a writer and man of sport and leisure based out of Athens, Ohio. He has also written for Government Executive online, the National Journal’s Hotline, and The New York Observer’s Politicker.com. He can be found on Twitter @TheRevDeWitt.