The Priority of Religious Liberty

"And There Shall Be None to Make Him Afraid."These days, the words of the prophet Micah would be an odd fit in a presidential address. With a large segment of society standing by with their slings and arrows of "establishment clause" and "separation of church and state" at the ready lest any politician or statesman appear too attached to his religious convictions, lines from the Bible can be difficult to get by within a setting apart from the pulpit on a Sunday morning.But once upon a time, it wasn't so difficult. At the very dawn of his administration, that icon of the American presidency, George Washington, addressed the Hebrews of Newport, Rhode Island, with such just words. "There shall be none to make him afraid," the new president wrote, assuring that each man "shall sit in safety under his own vine and fig tree" and "continue to merit and enjoy the good will" of the citizens of a newly-founded nation.[note]George Washington, Letter to the Jews of Newport. August 18, 1790. Available at http://www.tourosynagogue.org/index.php/history-learning/gw-letter.[/note]The letter, of course, was received by a people who had grown used to oppression and persecution, even in the New World. Under British control, the Jews of Rhode Island alone were denied both the vote and naturalization, while religious minorities like the Quakers, Presbyterians, and Roman Catholics received similar treatment throughout much of colonial America.But this was to be a new beginning. After an eight-year war and the deaths of many of his own men, Washington was eager to communicate to the newly-formed American public that this nation would strive to be free from the flaws of the old. The government of these new United States would be a body that "gives to bigotry no sanction, to persecution no assistance," and require only "that they who live under its support demean themselves as good citizens in giving it on all occasions their effectual support."[note]Ibid.[/note]To put it another way, in this brave new reorganization of civil society, the state would be made for man, not man for the state. Rights and liberties were things the people enforced against the government as a way of describing its just limits, while it was the government's duty in turn to defend and ensure the free exercise of those rights.Foremost among these was the freedom to worship. It wasn't by accident that Washington tried so hard to communicate the priority of religious liberty to the Jewish and other faith-based congregations of the new America. He himself admitted that it was the establishment of just such a liberty that "induced [him] onto the field of battle" in 1775.[note]Michael and Jana Novak, Washington's God (Basic Books, 2006).[/note] The stakes of the American War for Independence were raised over more than just taxes and legislative representation. It was a war fought ultimately over rights—the ability of the people to put limits on the state in order to prevent the state putting limits on the people. Or so it was in the minds of a few.But Washington wasn't necessarily alone in his convictions. James Madison, the so-called "Father of the Constitution," had similar leanings when it came to the centrality of religious liberty. He believed that man's duty to God transcended his duty to the State, making him free by right to discharge that duty apart from force or coercion. Madison argued that "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."[note] Memorial and Remonstrance Against Religious Assessments, 1785. Available at http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html.[/note]Bold words from a future president. With language like this, it's hard to imagine James Madison intended an individual's freedom of religion to extend only to his freedom to go to church on Sundays. The "public/private sphere" distinction that's tossed around by pundits these days as a kind of natural extension of the "separation of church and state" is nowhere to be found.Rather, it is the inherent inalienability of these rights over the dictates of the government that is the focus of much of the concern. As what one owes to God supersedes what one owes to the State, it is apparent to Madison that religious duty "is precedent both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance."[note]Ibid.[/note]Penned by the hand of the Father of the Constitution himself, these lines may be the closest Jefferson's notion of "separation of church and state" came to being written into the supreme law of the land. A much underplayed reality of this arrangement between church and state is that it was designed chiefly to protect the church from the state rather than the other way around. The duty to one existing beyond the grasp of the other, religion must "be exempt from the authority of the Society at large" (especially the lawmaking portion).[note]Ibid.[/note] Madison notes that "the preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people."[note]Ibid.[/note]This treatment of the issue leaves Jefferson's concept of a "wall of separation" fairly well preserved, provided that its height, width, and shape aren't determined by the government. Built to keep the state out and the rights of the people intact, it's a barrier whose foundation rests on the belief that the government's power can only extend so far. Separate because they are unequal (at least in the minds of the founders), church and state played two distinct roles in the maintenance of a liberal society, ensuring that the power that kept the people free from both foreign and domestic threats to their liberty would not turn into just as deadly a threat itself.With this kind of a backdrop to the framing of the new constitution, Washington's reassurance to the Jews of Newport comes off less like an attempt to court political favor and more like a promise he had every intention of keeping. Religious freedom and toleration would no longer be seen as a mere dispensation to be granted by the state "as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights,"[note]Letter to the Jews of Newport.[/note] but as something the people held of their own accord for the protection of their own, hard-won liberties. Far more than the ability to freely bend one's knee to whatever gods they recognize a handful of times a week, man's freedom of religion is an everlasting sign that he is subject to more than a mere temporal power, functioning as both the first and last line of defense against the encroachment of an unjust government.