Published April 3, 2015
Indiana’s Religious Freedom Restoration Act, like the federal one and those of other states, articulates its purpose in terms of the Free Exercise clause of the First Amendment (see especially sections 8, 9, and 10 of the statute). And one of the questions raised by the law is what sort of activity, particularly on the part of a business rather than an individual, in fact constitutes an exercise of religion. But the fanaticism that has characterized much of the Left’s response to Indiana’s law over the past week has highlighted an element of the threat to religious liberty today that comes closer to the other protection of religious liberty in the First Amendment—the prohibition against religious establishment, rather than the protection of the free exercise of religion.
The case against the establishment of religion was particularly important to the author of the First Amendment, James Madison. Madison’s writing and activism on the question of religious liberty in Virginia had always emphasized the establishment question above all—an emphasis that had not always been part of the Anglo-American understanding of religious toleration, since Britain (like most of the American colonies and, at first, the states) had an established church.
Madison’s case against an established church, perhaps most notably in his 1785 “Memorial and Remonstrance against Religious Assessments,” was rooted in a core principle of religious liberty that is particularly important to remember in the kinds of debates we have seen in the last few years: That religious freedom is not a freedom to do what you want, but a freedom to do what you must. It’s not a freedom from constraint, but a recognition of a constraint higher than even the law and therefore prior to it and deserving of some leeway from legal obligations when reasonably possible. (And remember, Indiana’s law says only that when such freedom is burdened, it should be clear to a judge that it was so for a compelling reason and that no less burdensome alternative was available.) Madison put the point this way:
It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to Him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.
It is important to note that Madison was making this case not in the context of arguing for permitting the free exercise of religion but rather in the context of arguing against the establishment of any religion by law. His point was that no one ought to be compelled to affirm as true a religious tenet he took to be false and that no one should be compelled to participate in a religious rite that violated his own understanding of his religious obligations. This is not exactly an extension of the traditional Anglo-American case for toleration. It is a Madisonian correction to the Lockean ideal of religious toleration in a society with an established church.
But this is also the essence of the argument that a wedding vendor who wants to remain free to refrain from participating in a same-sex wedding would advance. The question of the definition of marriage is, for many people, a fundamentally religious question. It is, of course, also a civil question in our country. But some religiously orthodox wedding vendors are finding themselves effectively compelled by the civil authorities to affirm an answer to that question that violates their understanding of their religious obligations. They would like to be relieved of that compulsion, but they are being told they can’t be because the larger society’s understanding of the proper answer to the question should overrule the answer prescribed by their religious convictions, and if they want to participate as business owners in the life of the larger society they must give ground.
They are in this sense more like religious believers under compulsion in a society with an established church than like believers denied the freedom to exercise their religion. Liberals are in this respect right to say they’re not trying to kill religious liberty. They’re trying to take it back to something like the form it had in the Anglo-American world when the Anglo-American world had a formal state religion—except now the state religion is supposed to be progressive liberalism.
This is the kind of religious liberty that John Locke lays out in the “Letter Concerning Toleration,” which extended a generous free exercise right to individuals but not to institutions with a religious character that were not houses of worship, because public institutions—indeed the public square as such—were to have a particular religious character. You can have your own beliefs about God and what He demands of you in such a society, and you can have a fair amount of room to live by those as a private individual. You can even have houses of worship where people like you can congregate and utter various heresies together in peace. But you cannot create other institutions that serve as embodiments of that religion in the society’s broader life. You can say but not do. You will be tolerated, but you will not be sovereign.
This distinction between individual and institutional religious freedom has actually been at the core of a lot of the religious freedom battles we’ve had in the Obama years. It has been more prominent in the HHS-mandate debates, but it’s very much a part of this argument about whether a florist shop or a pizza parlor can be Christian. In a country with a non-Christian state religion that it takes seriously, the answer is basically no. The florist can be Christian as an individual, but his store can’t be, because institutions, unlike individuals, are creatures of the law and our law already has a religion: progressive liberalism.
We who are appalled by the perverse reaction to the Indiana law are not exactly defending the free exercise right; we are in a sense opposing a violation of the prohibition on religious establishment. The point is not that running a flower shop is a way of practicing one’s religion. The point is that, if reasonably possible, people should not be compelled as the price of entry to the public square to honor as true what their understanding of their religious obligations compels them to judge false.
Whether you share in the particular substantive views of progressivism or not, surely you ought to agree that it should not become our state religion.
— Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center.