“Case Study: Religious Liberty in the Administrative State”

Week 9 — Thomas G. West • Paul Ermine Potter and Dawn Tibbetts Potter Professor in Politics

Post-1960s Progressivism has steadily eroded religious liberty and the freedom of association in America. Measures such as the Patient Protection and Affordable Care Act and many anti-discrimination laws express a new understanding of rights that rejects the Founders’ view of religious liberty and the freedom of private associations to govern themselves. Recent Progressivism follows the early Progressive belief that effective freedom requires government to redistribute resources in order to provide equal access to the goods that promote mental development and that make life comfortable. This redistributive agenda is combined with a new emphasis on the empowerment of victim groups, sexual liberation, and an aversion to traditional Christianity and Judaism that requires government intervention in the internal affairs of private organizations. Religious liberty today is divorced from the freedom of association and the free exercise of religion, which the Founders understood to be essential for a free society.

Lecture Summary The Founders’ conception of religious liberty was anchored in the belief that the natural right of liberty—and religious liberty—meant not only that all persons may worship God in the way each thinks best, but also that all are permitted to follow what they believe to be God’s laws in their daily life outside of church. The Founders understood, however, that actions based on religion are limited by the purpose of the social compact—the security of rights. No one has a right to disturb the public peace, to obstruct others in their religious worship, or to incite crimes. While the Founders believed that religion, especially Christianity, is helpful to the cause of liberty because it encourages the virtues necessary for the survival of a free society, they held that government involvement in religious organizations must be limited by the very purpose of government: to secure the equal natural rights of citizens to life, liberty, and property. Denial of the rights to religious liberty and to freedom of association violates the right to liberty. CONSTITUTION 201: THE PROGRESSIVE REJECTION OF THE FOUNDING AND THE RISE OF BUREAUCRATIC DESPOTISM

In practice, liberty—including religious liberty—means that individuals are free to organize and conduct their affairs as they see fit through self-governing private associations. Contrary to today’s practice, the Founders understood that churches, businesses, and other private associations had the right to determine all internal policies, including rules for membership, employment, and conduct, free from government interference. As long as these entities do not harm the rights to life, liberty, or property, they should be free to manage their internal affairs. After 1965, Progressives adopted a new attitude towards religion and private associations, viewing both as threats to effective or positive freedom. The redistributive agenda of early Progressivism required the violation of the natural right to property, but in general the early Progressives supported the traditional family and liberal Christianity. Post- 1965 Progressivism (in the interest of sexual liberation) explicitly attacks Christianity and rejects the older morality which supported the traditional family. To implement the new view of freedom from Christianity and moral self-restraint, government involves itself ever more pervasively in the internal affairs of churches and businesses. Since these private associations all have employees, they are thus subject to anti- discrimination provisions that actively promote affirmative action policies geared toward sexual liberation and the redistribution of resources to supposed victim groups. Private associations are not allowed to govern themselves, and businesses are often prohibited from treating religion as a positive good. Religious liberty is increasingly confined to the freedom to worship. The natural right to liberty and the specific application of that right as religious liberty and the freedom of association are denied by the contemporary Progressive view of religious liberty.

Key Passages from the Readings Northwest Ordinance “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” —The U.S. Constitution: A Reader, page 125 Notes on the State of Virginia, Query XVIII: Manners • Thomas Jefferson “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just; that his justice cannot sleep forever….” —The U.S. Constitution: A Reader, page 404

CONSTITUTION 201: THE PROGRESSIVE REJECTION OF THE FOUNDING AND THE RISE OF BUREAUCRATIC DESPOTISM

Farewell Address • George Washington “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports…. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” —The U.S. Constitution: A Reader, page 147 Abington v. Schempp • William Brennan “[I]t is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort…. Attendance at the public schools has never been compulsory… [The Constitution reserves] such a choice to the individual parent…. The choice which is thus preserved is between a public secular education with its uniquely democratic values, and some form of private or sectarian education, which offers values of its own….”

Lawrence v. Texas • Anthony Kennedy “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Study Questions

1. Did the Founders believe that there should be any restrictions or qualifications to religious practices? In what way was the Founders’ understanding of religious liberty informed by their understanding of freedom and equality? 2. What is the relation between the importance of religion and the security of rights according to George Washington in his “Farewell Address”? 3. What are the two main elements of the Founders’ conception of religious liberty? 4. Does government have a right to interfere in the internal governance of a private association such as a church or a religiously-affiliated business? Compare and contrast the Founders’ view with that of post-1960s Progressives. CONSTITUTION 201: THE PROGRESSIVE REJECTION OF THE FOUNDING AND THE RISE OF BUREAUCRATIC DESPOTISM

Discussion Questions

1. Why would the Declaration of Independence identify four different roles performed by God in relation to society? What is the significance of each of these four roles? 2. Is there a conflict between civil rights and religious liberty in the Constitution? 3. Are biblical religion and post-1960s Progressivism (or Liberalism) fundamentally opposed to each other? 4. Did the Founders intend for the Constitution’s Establishment Clause to mean that there must be a “wall of separation” between church and state?