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Essential Rights and Liberties of Religion in the American Constitutional Experiment John Witte Jr

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Essential Rights and Liberties of Religion in the American Constitutional Experiment John Witte Jr Notre Dame Law Review Volume 71 | Issue 3 Article 2 6-1-1999 Essential Rights and Liberties of Religion in the American Constitutional Experiment John Witte Jr. Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation John Witte Jr., Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 271 (1996). Available at: http://scholarship.law.nd.edu/ndlr/vol71/iss3/2 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ARTICLES The Essential Rights and Liberties of Religion in the American Constitutional Experiment John Witte, Jr.* INTRODUCTION ...................................................... 372 I. THE "GENESIS" OF THE AMERcAN EXPERIMENT ................ 376 A. Four Views of Religious Rights and Liberties in the Later Eighteenth Century ........................................ 377 1. Puritan Views ........................................ 378 2. Evangelical Views .................................... 381 3. Enlightenment Views ................................ 383 4. Civic Republican Views .............................. 385 B. The Essential Rights and Liberties of Religion ................ 388 1. Liberty of Conscience ............................... 389 2. Free Exercise ........................................ 394 3. Pluralism ............................................ 396 4. Equality ............................................. 398 5. Separationism ....................................... 399 6. Disestablishment .......... ; .......................... 401 7. Interdependence and Incorporation of Principles .... 403 H-. THE "EXODUS" OF THE AMERICAN EXPERIMENT ................ 405 A. From Multiplicity to Uniformity ............................. 405 1. State Constitutional Practices ........................ 405 2. The Supreme Court Restrained ...................... 407 3. Incorporation ....................................... 410 B. Modern Free Exercise Law .................................. 411 1. Multiple Principles .................................. 411 2. Compelling State Interest Test ....................... 414 3. Toward a Single Principle ........................... 418 " C. Modern DisestablishmentLaw .............................. 421 1. The Principle of Separationism ...................... 422 2. The Lemon Test ...................................... 423 3. Toward Multiple Principles .......................... 425 * Jonas Robitscher Professor of Law and Ethics, Director of Law and Religion Program, Emory University, Atlanta. B-A., Calvin College (1982);J.D., Harvard Law School (1985). This Article represents the tentative conclusions of work in progress on a forthcoming volume for Harper-Westview Press. It builds in part on John Witte, Jr. & M. Christian Green, The American Experiment in Religious Human Rights: The Perennial Search for Principles, in REUGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECrIVES 497-559 (Johan van der Vyver &John Witte, Jr. eds., 1996). I would like to thank Michael Broyde, Morgan Cloud, ElizA Ellison, Christy Green, Douglas Laycock, Tamara McCracken, Stuart D. Poppel, and Johan van der Vyver for their helpful criticisms of an earlier draft of this Article. NOTRE DAME LAW REVIEW [Vol. 71:3 III. AN INTEGRATION OF ESSENTIAL RIGHTS AND LIBERTIES OF RELIGION ....................................................... 431 A. The Need for Integration ................................... 431 B. InternationalHuman Rights Law as a Source of Integration .. 433 1. Religious Rights and Liberties at International Law.. 434 2. International and American Laws Compared ......... 438 CONCLUSIONS ....................................................... 443 INTRODUCTION Thomas Jefferson once described the religion clauses of the First Amendment to the United States Constitution as a "fair" and "novel experi- ment" in religious rights and liberties.' The religion clauses, declared Jef- ferson, defied the millennium-old assumptions inherited from Western Europe-that one form of Christianity must be established in a commu- nity, and that the state must protect and support it against other religions. The religion clauses, Jefferson argued, suffer neither prescriptions nor pro- scriptions of religion. All forms of Christianity must stand on their own feet and on an equal footing with all other religions. Their survival and growth must turn on the cogency of their word, not the coercion of the 2 sword, on the faith of their members, not the force of the law. This bold constitutional experiment in religious liberty, though neither as fair nor as novel as Jefferson believed,3 remains intact and in progress in the United States. The First Amendment religion clauses, drafted in 1789 and ratified in 1791, 4 remain the predominant federal con- 1 Letter from Thomas Jefferson to Six Baptist Associations Represented at Chesterfield, Va. (Nov. 21, 1808), in THE COMPLETEJEFFERSON, CONTAINING His MAJOR WRITINGS 538 (Saul K. Pa- dover ed., 1943); see SIDNEY E. MEAD, THE LIVELY EXPERIMENT: THE SHAPING OF CHRISTIANITY IN AMERICA (1963). 2 See, e.g., Letter ofJanuary 23, 1808, in 11 THE WORKS OF THOMASJEFFERSON 7 (Paul L. Ford ed., 1904) (arguing against state involvement in religion); Autobiography, in 1 THE WORKS OF THOMAS JEFFERSON 71 (Paul L. Ford ed., 1904); see also Thomas Jefferson, Notes for a Speech in the Virginia House of Delegates, in 1 THE PAPERS OF THOMAS JEFFERSON 537-39 (Julian P. Boyd ed., 1950) (arguing that the 1785 Virginia statute establishing religious freedom "meant to com- prehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo, and Infidel of every denomination"). 3 For examples of prototypes, see the religious liberty clauses cast in the aftermath of the Dutch Reformation in the 1570s and 1580s, collected in TEXTS CONCERNING THE REVOLT OF THE NETHERLANDS (E.H. Kossmann & A.F. Mellink trans. & eds., 1974) with discussion in OJ. Dejong, Union and Religion, in THE Low COUNTRIES HISTORYYEARBOOK 29 (1981) and GERHARD GfJLDNER, DAS TOLERANZ-PROBLEM IN DEN NIEDERLANDEN IM AUSGANG DES 16.JAHRHUNDERTS [THE PROBLEM OF TOLERATION IN THE NETHERLANDS AT THE END OF THE SIXTEENTH CENTURY] (1968). For other European prototypes, see Karl Schwarz, Der Begriff Exercitium Religionis Privatum, [The Concept of Private Religious Exercise], 105 ZEITSGHRIFr DER SAVIGNY-STIFTUNG (KAN. AB.) 495 (1988); Brian Tierney, Religious Rights: A HistoricalPerspective, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPEC- TIVE: RELIGIOUS PERSPECrVES 17-46 (John Witte,Jr. &Johan D. van der Vyver eds., 1996) [herein- after Witte & van der Vyver eds., RELIGIOUS HUMAN RIGHTS: RELIGIOUS PERsPECrvES]. James Madison, an equally important architect of the American experiment, was aware of these Dutch prototypes. See, e.g., Letter from James Madison to Rev. [jasper] Adams (1832), in 9 THE Wirr- INGS OFJAMES MADISON 484-88 (Gaillard Hunt ed., 1910) ("Until Holland ventured on the experi- ment of combining a liberal toleration with the establishment of a particular creed, it was taken for granted that an exclusive & intolerant establishment was essential.... It remained for North America to bring the great & interesting subject to a fair, and finally to a decisive test."). 4 U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of reli- gion, or prohibiting the free exercise thereof..."). 1996] ESSENTIAL RIGHTS AND LIBERTIES OF RELIGION stitutinal text to govern religious rights and liberties in America.5 Princi- pal governance of this experiment-initially left to state legislatures and state courts-has since the 1940s fallen largely to the United States Supreme Court and lower federal courts. The American experiment in religious liberty initially inspired exuber- ant rhetoric throughout the young republic and beyond. Elhanan Winchester, a Baptist preacher turned Universalist, declared proudly to a London audience in 1789: There is but one country in the world where liberty, and especially reli- gious liberty, is so much enjoyed as in these kingdoms, and that is the United States of America: there religious liberty is in the highest perfec- don. All stand there on equal ground. There are no religious establish- ments, no preference of one denomination of Christians above another. The constitution knows no difference between one good man, and an- other. A man may be chosen there to the highest civil offices, without being obliged to give any account of his faith, subscribe [to] any religious test, or go to the communion table of any church. 6 Yale President Ezra Stiles predicted robustly in 1793: The United States will embosom all the religious sects or denominations in christendom. Here they may all enjoy their whole respective systems of worship and church government, complete .... All religious denomina- tions will be independent of one another.., and having, on account of religion, no superiority as to secular powers and civil immunities, they will cohabit together in harmony, and I hope, with a most generous catholi- 7 cism and benevolence. Dozens of such confident endorsements of the American experiment in religious rights and liberties can be found in the sermons, pamphlets, and monographs of the young American republic.8 Today, the American experiment inspires far more criticism
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