Unalienable Rights, Equality and the Free Exercise of Religion
by Kerry L. Morgan
Part 4 – A Bill of Rights to Protect Religious Liberty
IV. A Bill of Rights to Protect Religious Liberty
Thus far, this Article has identified the unbending laws of nature and of nature’s God as the foundation upon which the principles of the Declaration are reposed. The principle that all human beings are created equal and the grant of unalienable rights referred to in the Declaration are derived from and animated by that law. As this law is unchanging, so too its principles are unchanging. While the applications of these principles differ, the principle of equality or the nature of unalienable rights is constant.
Nor does the existence of the rule of stare decisis (which is almost never applied as far back as the Declaration) diminish one iota the civil government’s obligation to secure equality and unalienable rights as far as its respective constitution will admit. Stare decisis is actually short for stare decisis, et non quieta movere, which means “to stand by decisions and not disturb settled matters.” Note that the doctrine is concerned with judicial decisions not legislative matters. It is also a policy proposition and not a fixed rule of law itself. The doctrine also implies that principles laid down in previous judicial decisions ought to be followed unless they contravene the ordinary principles of justice. We ought to affirm stare decisis, but reject judicial supremacy. Judicial opinions are evidence of law. Some opinions, however, are not good evidence because they usurp power not given, are badly reasoned or trample down the Constitution itself. The rule of stare decisis would have us stand by the rule of law first and then decisions based upon the rule of law thereafter. If a case decision does not first stand upon the rule of law, the doctrine simply does not
This Article has also examined Constitutional expressions of the laws of nature and of nature’s God. Article VI of the Constitution implicitly acknowledges that God is the Creator of the universe and the maker of nations, and that as a consequence of this understanding, he should be acknowledged by an oath as a condition to holding public office. Equally as a consequence, compulsory profession or renunciation of religious doctrine as a condition of public office is prohibited.
The framers, however, did not limit the implications of the laws of nature and of nature’s God to article VI, for that law animated many different provisions of the United States Constitution as well as of the several states. It is well beyond the scope of this Article, however, to catalogue the relationship, let alone the ramifications of that law for each article of the Constitution. That task is briefly undertaken elsewhere.40 This section will simply examine one additional implication of the laws of nature’s God with respect to the first amendment’s religion clauses.
When the framers of the first amendment declared that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” they did not depart from the legal foundation of the law of God they had so meticulously identified. They did not create an entirely new legal theory about equality, rights and religion. Indeed, they did not spin a legal web of humanistic or evolutionary convictions about the reach and scope of Congressional power into the religion clauses of the first amendment. It was not Holmes or humanism that animated the philosophy of the founding. In fact, the framers carried the ideas of the Declaration about law and about unalienable rights, and about the equality of the unalienable right of religious freedom, into the first amendment. This progression, however, is far from any modern judicial pleading, proceeding or decision.
On the technical side of ingrafting the implications about equality and unalienable rights into the Constitution, James Madison proposed that the Bill of Rights in general not be appended to the end of the Constitution as is the present case, but be interlined into the original text of the Constitution itself. The amendments would read much better in context and would follow the general train of thought of the document. If the amendments were approached from this point of view, most would have found their way into article I, section 9, since that section already contained a short list of several rights and their corresponding limitations on the power of Congress.41
The first amendment in particular, protects religious liberty from the federal government’s general imposition of standards of religious belief and conduct. It was not written or intended to protect religion from state government impositions or establishments. The amendment also refined the jurisdictional relationship between religion and civil government touched upon in article VI. The religion clauses of the amendment did not introduce a new definition or meaning of rights or religion. The amendment reflected the rules of equality and rights which have been previously articulated and were then being further refined in the federal context.
In examining the religion clauses of the first amendment, the question arises: “Is the right to the free exercise of religion an unalienable right?” This Article has heretofore indicated that unalienable rights exist and that they are given to all human beings from God. It has implied that the right to the free exercise of religion is an unalienable right of equal stature as the unalienable rights specifically enumerated in the Declaration of Independence. Ample evidence, however, is available to convert this implication into fact.
The legal definition of “unalienable,” “rights” and “religion” all support the view that religious liberty is an unalienable right. Consider the word “unalienable.” By definition unalienable means incapable of transfer or being taken away. In other words an unalienable right cannot be given away. More importantly, however, that which is unalienable cannot be taken or balanced away, especially by the civil government.42
The idea of rights as unalienable, indefeasible, indubitable or inherent was part and parcel of the framers’ worldview and proceeds mathematically from the laws of nature and of nature’s God. Though these different words may not have precisely the same meaning, they carry the same essence–that human beings have certain rights from their Creator which civil government is not authorized to deny or disparage.43
The idea of unalienability is easier to grasp than the idea of rights. This condition is owing to the modern deterioration of the definition of rights. The definition has been alloyed through impure construction and mishandling. Such is the fruit of an evolutionary approach. Unalienability on the other hand, has simply been ignored and thus has not suffered as much corrosion of its meaning. To the modern jurist, a right is considered as such simply because it is asserted as a right. For instance, Black’s Law Dictionary declares that a right is “a power, privilege, faculty, or demand, inherent in one person and incident upon another.”44 In other words, the life of the law and of its rights, is power, not Revelation.
Black’s notes that “the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law.” It is true that rights exist “antecedently to their recognition by positive law.” The reference to “personality” and the “primal” aspect of man qua man, however, is entirely a different matter. The reference to “personality” and the “primal” is the modern response to figuring out how to have rights without using the words “Creator” or “Laws of Nature and of Nature’s God.”
To understand this modern primal view must one think like a primate?45 The reader will quickly perceive the worldview difference between the original legal consensus and its primal usurpers. The modern approach reflects a confused (often termed complex) humanistic and evolutionary jurisprudence and is an absolute non sequitur from the laws of nature and of nature’s God. It is the antithesis of the Declaration’s consensus that human beings are created equal and “endowed” with unalienable rights by their Creator.46
Evidence that the exercise or practice of religion is an unalienable right according to the laws of nature and of nature’s God (and not in the humanistic sense), is found by examining religion’s definition in Article 16 of Virginia’s Constitution of 1776. It declares:
That Religion, or the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.47
This legal definition was adopted by Virginia in 1776. It is significant in at least two key ways. First, religion is defined as an actual duty or obligation, not a primal “power, privilege, faculty, or demand.” This duty attaches to every man and woman because they are human beings made by their Creator. The duty does not arise from one’s religious belief or lack of belief, but rather from being a created human being. Nor does this obligation arise from thinking like a primate about rights.
Second, the manner of discharging that obligation or duty is voluntary. The definition articulates and preserves the voluntary nature of the obligation. Performance of these duties cannot be compelled by the civil government. The civil government is prohibited from using force or coercion to effect the exercise of religious duties to the Creator. Civil government is prohibited from employing a legal mechanism to compel the manner of discharging the obligation or duty to God. Compulsion is the essence of establishment.
James Madison also characterized religion in 1785 as an unalienable right. He wrote in his Memorial and Remonstrance Against Religious Assessments that,
[t]he 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. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty toward the Creator.48
Madison’s understanding of religion carries at least three distinct facets. It is concerned with the mind and opinions. It is concerned with the dictates or coercions of other men. And it is concerned with rights toward other men which invariably include the sphere of action. These facets describe the context where conflict between religion and civil government arise and which will be considered in greater detail when Supreme Court cases are examined in section V infra.
Defining religion as an unalienable right or liberty was not the only approach available to Congress during the formation of the Bill of Rights. The idea of defining religion in terms of toleration was also very popular. Prior to independence in 1776, George Mason sought to write the guarantees of the English Acts of Toleration into the Virginia Declaration of Rights. As the English were entitled to the “advantages” of religious toleration under these acts, it seemed appropriate that their American counterparts should also enjoy the same degree of toleration. Thus, in 1776 Mason argued “that all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate, unless, under Color of Religion, any Man disturb the Peace, the Happiness, or Safety of Society, or of Individuals.”49
Rather than seeking religious toleration, however, James Madison sought religion’s free exercise. Madison realized that English privileges did not descend from the idea of unalienable rights and therefore could only result in degrees of toleration. Privileges were by definition, dependent upon executive, legislative or judicial grace or the grace of the Crown’s operatives and employees in the Anglican Church. Such privileges could be subject to a balancing test as they are presently. Religious liberty, however, was consistent with unalienable rights. It was Madison’s view, however, and not that of Mason, that eventually prevailed in the federal context.
After the Constitution was ratified, Congress immediately began to entertain petitions from the states proposing language to protect religious liberty. Would the states attempt to write God, the laws of nature’s God, the rule of legal equality or unalienable rights out of the future first amendment equation? Would they attempt to establish an entirely new framework of law? Did they think like primates or modern Justices? Certainly not.
Armed with the backdrop and definitions of “unalienable” and “rights” previously discussed, the Commonwealth of Virginia urged that a declaration of rights be added which would secure,
from encroachment the essential and unalienable Rights of the People in some such manner as the following; . . . That religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others.50
New Hampshire urged Congress to add a provision stating that “Congress shall make no Laws touching Religion, or to infringe the Rights of Conscience.”51 New York requested Congress adopt the following language: “That the people have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.”52 North Carolina sought a “Declaration of Right, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People.”53 Among these rights were found those pertaining to religion and North Carolina followed Virginia’s petition almost verbatim.54 Rhode Island also followed suit with identical language as North Carolina as it pertained to the “equal, natural and unalienable right to the free exercise of religion.”55
Several state Declaration of Rights also articulate the essence of religious liberty and the rule of equality. Pennsylvania observed in 1776 that no man “who acknowledges the existence of a God, [can] be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of worship.”56
Delaware harkened back to Mason’s toleration approach and combined it with the equality principle. It observed; “That all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state, unless, under color of religion, any man disturb the peace, the happiness or safety of society.”57 And Virginia stated the broadest rule of all, not limiting its application to those who acknowledged God or professed Christianity. It declared that “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”58
Overall, Virginia came the closest to articulating both a definition of religion and an understanding of equality. First, it recognized that religion was a universal obligation. All men and women whether or not they believed in God were bound to render to God that which he required. Second, Virginia recognized intellectual freedom. The process of forming religious beliefs about those duties owed to God were among a man’s mental processes and were not to be coerced or interfered with by the civil government.
Third, Virginia also recognized that the exercise of religious obligations should be free, i.e., not subject to civil or private compulsion or coercion. Freedom from civil coercion and private interference from other men, translated into an unalienable right to the free exercise of religion; unalienable in that it was endowed by God, and free because the exercise of duties to God was legally guaranteed by his will to be free from civil coercion or human interference. The civil government was responsible only to ensure that the unalienable right to the exercise of religion, was free from its own coercion or from private interference. The civil government was responsible for the security of this right because “in order to secure these [unalienable rights], governments are instituted among men . . . .”
Fourth, Virginia recognized equality of civil rights. Irrespective of whether or not any given person exercised their duties to God, it did not change any other civil rights or capacities shared in common with their fellow citizens. Other states fell short in recognizing this ground rule. They wanted to condition equality of civil rights on sectarian religious belief or profession. (This approach is still very much a part of our first amendment religious jurisprudence today, though it was then rejected at the federal level.) To condition equality of rights on the profession or renunciation of religious belief, however, is contrary to the principle that “all men are created equal; that they are endowed with certain unalienable rights.” Thus, Virginia lead the way in carrying into practical construction the basic jurisprudential implications of equality and unalienable rights inherent in the Declaration’s invocation of the laws of nature and of nature’s God.
When Congress eventually focused on the Bill of Rights, they considered the various state proposals and initially entertained Madison’s assimilation of them, that; “the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.”59 Madison assimilated many of the state’s suggestions but relied on Virginia’s approach as controlling. He stated the equality principle first. He stressed equal civil rights irrespective of belief. He referred indirectly to the principle of “no civil compulsion of duties to God” through reference to those duties generally governed under the auspices of the established church (and thus his reference to no national establishment). Madison also included the principle of intellectual freedom, i.e., non-coercion or interference in the process of forming religious beliefs about those duties owed to God. His assimilation did not expressly declare that religion was a universal obligation but this can be fairly implied from the history and context of state
submissions and all that had gone before.
The House of Representatives condensed the terminology to read, “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”60 The Senate approached the matter differently declaring that “Congress shall make no law establishing Articles of faith, or a mode of worship, or prohibiting the free exercise of religion . . . .”61 Throughout the entire process, the central focus of the changes in wording was not to eliminate any major principle, but to adopt an overall economy of language reflecting the underlying meaning to be conveyed.
Having received the ratifications and petitions from the states and then debated the various versions favored by each house, Congress subsequently submitted twelve amendments to the states for their consideration. Congress recognized that the amendments were sought by the states “in order to prevent misconstruction or abuse” of Congressional power.62 Eventually the states adopted ten of the proposed amendments. The religion provision agreed upon declared that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and became part of the first amendment.
The essence of the state proposals and the resulting amendment recognized, ensured or involved five concepts.
- First, religion involves those universal obligations owed by all human beings to God;
- Second, intellectual freedom prevents civil coercion or interference with the process or formation of opinions or beliefs. Civil government must secure intellectual freedom from civil coercion and private interference;
- Third, the exercise of said universal obligations may not be coerced. Civil government must secure the free exercise of religious obligations from civil coercion or private interference.
- Fourth, equality of civil rights is not dependent on religious belief or exercise. Civil rights are not expanded or contracted based on religious belief.
- Fifth, the prohibition on establishing religion does not reach, and therefore does not prohibit, civil recognition or acknowledgment of God the Creator and his jurisdiction over nations. God, his nature, attributes and power are not confined to religion, religious belief or exercise, or religious doctrine. Civil acknowledgment of these is not an establishment.
The first amendment is based upon and presumes that religion involves universal obligations owed by all human beings to God. The amendment’s no establishment clause corresponds and reflects a limitation on the power of the civil government to coerce or interfere with the process of forming beliefs about religious obligations owed to God and the exercise of those obligations. The amendment’s free exercise guarantee states the corollary: civil government must secure from civil coercion or private interference, intellectual freedom and its corresponding exercise of religious duties.
The framers recognized that the major institution of coercion and interference in their day was the official church propped up by the power of the state. The problem was not the church per se, but the state established church. Much like today’s state established public school, the state established church interfered with the process of forming beliefs about religious obligations owed to God. The state established church interfered with the exercise of those obligations. Rather than recognizing that the civil government must secure intellectual freedom and the free exercise of corresponding religious obligations, the civil government had given to the church the civil power of coercion and private interference. So too with public schools and governmental control of private, religious and home schools and education today
Consequently, the no-establishment principle was chiefly, though not entirely understood in an institutional context. No Congressional use of a government established church to perpetuate a national religion, national articles of faith or national mode of worship was permitted. No Congressional use of a government established church to prevent or interfere with religious belief or worship was permitted. No Congressional use of a government established church to infringe the equal civil capacities or equal rights on account of an individual’s belief or worship was permitted.
The framers also recognized that despite the institutional battle, coercion and interference also had other dimensions. The amendment was therefore intended to block direct Congressional adoption (and thereby bypass the institutional church) of its own national religion, national articles of faith or national mode of worship. No direct Congressional prevention of, or interference with, individual religious belief or worship was allowed. No Congressional infringement of the equal civil capacities or equal rights of individuals on account of that individual’s belief or worship allowed. Equality of civil rights could not be made by federal law to be dependent on an individual’s religious profession, belief or exercise.
In adopting the religion clauses, neither the states or Congress sought to write God, the laws of nature’s God, equality or unalienable rights out of the first amendment equation. The framers sought to ensure that the national government not encroach upon the God-given “essential and unalienable Rights of the People.” Religion is among these rights and the first amendment was designed to secure its free and equal exercise from federal interference. The clause did not alter or upset the necessary and proper relationship between God and civil government which in turn, is based on the law of nature and of nature’s God.
* Copyright © 2004, 2006 Kerry L. Morgan. Used with permission.
40. See Morgan, The Laws of Nature and of Nature’s God: The True Foundation of American Law (Simon Greenleaf Press, The Simon Greenleaf School Of Law) 1992.
41. R. Perry, supra note 9 at 422-423. Madison proposed to insert various amendments at the end of the first clause of article 1, section 6, amendments between the third and fourth paragraphs of article 1, section 9, amendments between the first and second paragraphs of article 1, section 10, amendments to article III, section 2, and amendments to article VI. The provisions for religious liberty were to be found between the third and fourth paragraphs of article 1, section 9. That section provides for limitations on Congressional power. The second [keep and bear arms] and third amendments [no quartering soldiers] could have also been considered in the context of article I, section 8 after clause 16.
42. Noah Webster’s 1828 Dictionary defines unalienable as that which “cannot be legally or justly alienated or transferred to another.” The concept of unalienability (assuming due process), however, does not preclude civil government from alienating human life in punishment for murder, from alienating a man’s liberty through imprisonment upon conviction of crimes, or alienating a man’s property through levy and execution for payment of legal judgments. The concept of unalienable rights does, however, preclude civil government from balancing such rights against governmental interests, whether such interests are compelling, rational or otherwise.
43. Virginia 1776 Constitution declared that “all men are by nature free and independent, and have certain inherent rights . . . .” R. Perry, supra note 9 at 311. Pennsylvania’s 1776 Constitution stated that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights . . . .” Id. at 329. Delaware and North Carolina’s 1776 Declaration of Rights proclaimed that “all men have a natural and unalienable right to worship Almighty God . . . .” Id. at 338 and 356. See also Appendix A.
44. Black’s Law Dictionary (5th ed. 1979).
45. The primal vision of law, government, rights and ultimately justice is contrary to the laws of nature and of natures God as well as it established rule that jus ex injuria non oritur: A right does (or can) not rise out of a wrong.
46. Also compare the humanist view with Noah Webster’s 1828 dictionary definition. Webster did not declare that rights are primal or grounded in personality. He observed that a right is:
conformity to the will of God, or to his law, the perfect standard of truth and justice. In the literal sense, right is a straight line of conduct, and wrong a crooked one. Right therefore is rectitude or straightness, and perfect rectitude is found only in an infinite being and his will.
Webster defines a right as conformity to the law of God–to rectitude. Humanist jurisprudence founded upon the primate approach, however, discards the need for rectitude. It envision a system of justice in which rights may be wrongs. The right of “privacy,” for instance, permits abortion, an act which is historically regarded as a criminal wrong and subject to criminal sanction. The right of “privacy” is also invoked to excuse common law crimes such as adultery, fornication, and prostitution. Conduct such as sodomy and bestiality, which are crimes “against nature” have also been found to be rights and are consistent with the idea of rights as power. Thirty years after Roe the Supreme Court used the same pseudo-constitutional deceit to “strike down” the anti-sodomy laws of thirteen states on the basis that the Constitution guaranteed such a right. See Lawrence v. Texas, No. 02-102, June 26, 2003. This is more fruit of the failure to defend the rule of law. See unpublished Article by Kerry L. Morgan, First we Defend Law, Then we Defend Life, What the Pro-Life Movement needs after 30 Years of Failure (2004).
47. In 1784 James Madison, looking back to 1776, declared in his Memorial and Remonstrance on the Religious Rights of Man, that religion so defined was a “fundamental and undeniable truth” and “in its nature, an unalienable right.” Madison understood and accepted the proposition that all men are endowed by God with unalienable rights. The Commonwealth of Virginia acknowledged this unalienable right in their 1786 Bill to disestablish the state church. The author of that measure, Thomas Jefferson, with the concurrence of the General Assembly, declared that “the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present . . . (it) will be an infringement of natural rights.” R. Cord, supra note 1 at 250.
48. R. Cord, supra note 1 at 244. See also I. Backus, An Appeal to the Public for Religious Liberty against the Oppressions of the present Day (Boston 1773). Backus examined the differences between ecclesiastical and civil government and showed how their combination leads to loss of religious freedom.
49. 1 The Papers of George Mason 278 (R. Rutland, ed. 1970).
50. Ratification of the Constitution in Convention of the People of the Commonwealth of Virginia, June 26-27, 1788 in Documents, supra note 32 at 1030-1031.
51. Ratification of the Constitution in Convention of the People of the State of New Hampshire, June 21, 1788 in Documents, supra note 32 at 1026.
52. Ratification of the Constitution in Convention of the People of the State of New York, July 26, 1788 in Documents, supra note 32 at 1035.
53. Conditions of Ratification of the Constitution in Convention of the People of the State of North Carolina, August 1, 1788, Ratified November 21, 1789 in Documents, supra note 32 at 1044.
54. Religion is defined as follows:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others.
Conditions of Ratification of the Constitution in Convention of the People of the State of North Carolina, August 1, 1788, Ratified November 21, 1789 in Documents, supra note 32 at 1047.
55. Ratification of the Constitution in Convention of the People of the State of Rhode Island, May 29, 1790 in Documents, supra note 32 at 1053.
56. Constitution of Pennsylvania, August 16, 1776, Article 2 in R. Perry, supra note 9 at 329.
57. Delaware Declaration of Rights, September 11, 1776, Section 3 in R. Perry, supra note 9 at 338. See also, The Constitution of Maryland, November 3, 1776, Article 33, Id. at 349; and The Constitution of Vermont, July 8, 1777, Chapter 1, section 3, Id. at 365.
58. R. Cord, supra note 1 at 250.
59. 1 Annals of Cong. 434 (June 8, 1789). See also R. Cord, supra note 1 at 25.
60. 1 Annals of Cong. 766 (August 15, 1789).
61. Senate Journal of September 9, 1789 in 2 The Bill of Rights, A Documentary History 1153 (B. Schwartz ed. 1971).
62. Id. at 1063. Resolution of The First Congress Submitting Twelve Amendments To the Constitution.