I was asked to speak at the Religious Freedom Summit that is still going on at Cedarville University. What follows is a copy of my remarks. They were lightly edited and altered when delivered since I did not read the text.

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Our tendency, when we think of religious freedom or anything else, is to focus on our problems or shortcomings. We have an enormous amount of religious liberty in America. We are free to worship any god or no god. We are free to share our beliefs with very few constraints. Christians can organize, lobby, run for office, and vote for whomever we wish. We can buy or run radio and TV stations, newspapers, magazines, websites, and blogs. We are free to have religious schools, like Cedarville University. By any measure, we have massive amounts of religious freedom and we should regularly thank both God and our government for it.

Our challenges have little to do with purely religious activity, but with how we apply our religious faith. They cut to the core of true faith, one that is neither isolated nor compartmentalized, but a faith that animates every element of who we are, whether we are running a business, preaching a sermon, peering through a microscope, baking a cake, or teaching a class.

For the sake of time, I will focus on two challenges to religious freedom.

1. Can the Government choose religion? Put differently, to what extent can government manifest the religious beliefs of either those in the government or those who put them there? This question involves the Establishment Clause.
2. Does the Free Exercise of religion protect activities that are not precisely religious but still reflect religious beliefs? While this question could cut in many different ways, I will focus on the Free Exercise Clause.

Let’s look at the relevant constitutional language: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”

Notice the first word is “Congress.” This is deliberate. The First Amendment was written to bind the national government’s legislative branch, to keep it from passing laws that restrict religious exercise or that respect religious establishment.

These clauses at least meant, when they were first written and interpreted, that Congress could neither create a national church nor violate religious conscience. But, the clauses say nothing about state or local governments. As Professor Steven D. Smith argues in a wonderful book called Foreordained Failure:

The religion clauses, as understood by those who drafted, proposed, and ratified them, were an exercise in federalism.

They were designed to give the states, not the national government, latitude on religious questions and issues. For example, it was not until 1833, more than four decades after the First Amendment was ratified, that Massachusetts disbanded its own religious establishment of congregationalism. For most of our founders, the prohibition against government interference in religious matters was a national prohibition.

States could also favor religion without establishing a church. Pennsylvania’s law against blasphemy made it a crime to

“willfully, premeditatively, and despitefully blaspheme, or speak lightly or profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scriptures of Truth.”

Maryland and Massachusetts had similar laws. Throughout the founding era, many states maintained religious requirements for running for public office. Depending on the state, eligible candidates had to believe in a deity, the Trinity, or the afterlife. The Supreme Court did not overturn all such laws until 1961 (Torcaso v. Watkins). We can argue about whether these are good or bad ideas, but they are historical realities.

So, States could favor religion in important ways. What about the national government? The Establishment Clause prevented the creation of a national church, but it did not prevent the government from favoring religion through rhetoric or policies, as long as it did not favor a specific church or sect.

Early congresses, among other things, supported and funded chaplains for the military, put “In God We Trust” on our currency, and opened sessions with prayer. On Sundays, religious services took place in Congress itself.

For most of our Founders, this was unexceptional. There was a generic support of religion. Most believed religion was an important component of morality, which was necessary for good government. In his Farewell Address, George Washington says,

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”

Not only did the Founders believe in religious freedom, they believed government should encourage religion as a positive social and political good. This was the majority view, but it was not universal.

Thomas Jefferson, in his famous Letter to the Danbury Baptists, wrote about his understanding of the religion clauses in the First Amendment:

…Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State… (Emphasis added)

Jefferson believed the religion clauses prevent government from actively choosing religion. He also believed government could regulate, to a degree, actions that stem from religion, but not religious belief. This protects conscience, but not necessarily actions related to conscience. To be clear, Jefferson also believed in a modest, limited government. He would not support an aggressive government that extensively regulates private activity. It would be a terrible mistake to use Jefferson’s principle to argue in favor of, say, the Affordable Care Act’s requirement that businesses provide birth control to employees even if those business owners thought it a violation of conscience. Based on his understanding of Article 1, Jefferson would not grant Congress the power to pass the Act itself.

At the same time, Jefferson’s wall of separation was not absolute. Just two days after he wrote that letter, he attended religious services in the U.S. House.

Things began to change with the 14th Amendment, which was adopted in 1868. The Amendment was meant to limit states’ abilities to discriminate against their own citizens. It included the following language: “…nor shall any State deprive any person of life, liberty, or property, without due process of law…”

Over a long period, the Supreme Court used this language to apply nearly all of the Bill of Rights to state and local government actions. In 1947, in Everson v. Board of Education, the Court applied the Establishment Clause to a busing issue for Catholic students in New Jersey. As it did so, the Supreme Court embraced Jefferson’s understanding of the Establishment Clause. In Everson, Justice Hugo Black, for the majority, wrote:

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.”

This opened the proverbial can of judicial worms. Prayer in schools, the posting of the Ten Commandments in classrooms, graduation prayers, and the teaching of Creationism are now unconstitutional according to the Court when historically the Establishment Clause would not have touched these issues. (Engel v. Vitale, Stone v. Graham, Lee v. Weisman, Edwards v. Aguillard). These decisions endorse a separationist view and limit government’s ability to choose religion.

Over the years, the Court also dealt with Sunday closing laws, prayer in public meetings, the placement of nativity scenes, and vouchers for religious schools. All of these things, depending on the context, are ok under the Establishment Clause (McGowan v. Maryland, Greece v. Galloway, Lynch v. Donnelly, Zelman v. Simmons-Harris). These decisions, in various ways, endorse Washington’s perspective that government can support religion.

The divide so present at our founding is still with us and does not appear to be going away.

Why does this matter? The Bill of Rights in particular, and the Constitution in general, maintain a very delicate balance between two ideals: self-government, or the majority’s ability to act through their elected representatives, and the protection of minority rights. Some things are forbidden to the majority. This is the basic divide we see. Does a governmental preference for religion harm minority rights? In some ways, the Court’s decisions on the Establishment Clause have limited the majority’s ability to choose religion, even in ways that are not necessarily destructive of minority rights.

Now for our second question. Does the Free Exercise Clause protect activities by religious people even though the actions are not purely religious?

Let’s think back to Jefferson’s Letter, where he argued government could legislate actions but not beliefs. The Supreme Court, in Reynolds v. U.S. (1878), relied on the Jefferson’s reasoning when it enforced a federal anti-polygamy statute against Mormons in Utah. They objected to the law on free exercise grounds. The Court determined that criminal laws, even if they burdened religion, did not deprive people of free exercise rights—especially if the activity constituted a social harm. For the Court, polygamy was such a harm, so the law stood and the Mormons were forced to comply.

On its face this may seem like a reasonable argument, but the Reynolds standard, as an idea, is not very protective of religious action. After all, we are talking about the “Free Exercise” clause, which more than suggests activity and not only beliefs. The Court fashioned a more robust standard to protect religious exercise in Sherbert v. Verner (1963).

The case involved a woman, a Seventh Day Adventist, who was fired from her job for refusing to work on Saturdays. She filed for unemployment benefits but was denied because she refused other employment offers that required Saturday work. Adell Sherbert sued, arguing the state’s refusal to provide benefits violated her Free Exercise rights.

The Court, unlike in Reynolds, ruled that if a sincere religious belief was at issue, and the government’s action, in this case denying unemployment benefits, created a substantial burden on the person’s ability to act on that belief, the government must prove that it’s actions are based on a “compelling interest” and that it has pursued that interest in a way that is the least restrictive, or least burdensome, to religion itself.

This standard, called the Sherbert Test, is much more protective of religious freedom and forces government to fully justify its actions if it must burden religious activity.

This approach held until Employment Division v. Smith (1990). This case also involved unemployment benefits, but with a twist. Two Native Americans, Alfred Smith and Galan Black, were counselors at a private drug clinic in Oregon. As part of religious ceremonies, Smith and Black used peyote, a powerful, hallucinogenic drug. Oregon had criminalized the drug. Smith and Black, who were drug counselors, remember, got fired for their use of an illegal drug and were denied unemployment benefits. They sued, arguing they should be exempted from the law under the Free Exercise Clause.

Justice Scalia wrote the controversial majority opinion. The Court ruled that religious exercise was not sufficient to exempt the religious from criminal laws that are religiously neutral and generally applicable. Essentially, if the majority can create a law that meets those standards, even if the law happens to burden religious behavior, the law will stand. This is a far cry from the Sherbert standard.

The Smith decision created such a stir that the U.S. Congress decided to pass a law in response. The Religious Freedom Restoration Act (1993), known as R.F.R.A., basically took the Sherbert standard, that if a government action creates a substantial burden on sincere religious belief, the government must provide a compelling interest and it must burden religion in the least restrictive way possible, and forces federal laws that infringe on religion to be evaluated by that standard. RFRA was designed to force the courts to evaluate government actions that might infringe on religious liberty with the Sherbert standard, essentially bypassing Smith as a precedent.

This was the circumstance that created the controversy surrounding the Affordable Care Act and Hobby Lobby. Could the government require Hobby Lobby, as a for-profit entity, to pay for insurance policies that included contraceptives, even if some of those contraceptives were against the owners’ religious conscience?

In Burwell v. Hobby Lobby, the Supreme Court applied RFRA and determined that even if the government has a compelling interest in requiring employers to pay for such contraceptives, there are many other ways to do it.

Where does this leave us?

Christians are used to being in the majority of our legal and political culture. One of the reasons we are concerned about Religious Freedom is that we are not used to the law and regulations cutting against us. Notice that many of the cases regarding Free Exercise involved religious minorities (Mormons, Seventh Day Adventists, Native Americans) coming up against the weight of the state and the majority. Perhaps it is time we got used to the same thing.

I think we can be confident, to a point, that whenever the federal government acts, RFRA exists to force government to have a compelling interest. Given the robustness of RFRA, we should enjoy some level of protection from Federal Regulations. However, RFRA does not apply at the state level. This is how we end up with the Colorado case, where a Christian baker was forced to bake a cake for a gay marriage even though it violated his conscience. In a state with a RFRA, it is unlikely this would happen. Nineteen states have adopted a RFRA, but that still leaves a majority that has not.

Finally, what happens when rights collide? The Right to Privacy is the umbrella for gay rights in general and the right to homosexual marriage in particular. When those rights are asserted in situations against those who might claim religious rights, what will the Court do? I have my suspicions, but it is an open question. This is the argument of the near future.