The Free Exercise Clause:
Past, Present, and Future

by Herbert W. Titus

First:   Free Exercise Clause From 1791-1990
Second:   The Smith Rule Restated, Applied, Attacked
Third:   Religious Freedom Restoration Act


Religion: The Modern Definition

Having adopted the compelling interest compromise in RFRA, Congress made no effort to define “religion” or the “exercise of religion” to govern the Act. Because its purpose is to restore the compelling state interest test of Sherbert v. Verner and Wisconsin v. Yoder, RFRA has presumably embraced the definition of religion found in them.

In those cases, the Court held that religion means those beliefs and practices that are rooted in “deep religious conviction,” not in merely “philosophical and personal” views. To qualify, one must demonstrate that one’s beliefs and practices are based upon some holy book or holy tradition that has remained constant over a considerable period of time. Wisconsin v. Yoder, 406 U.S. at 215-16. Or, one must demonstrate that one’s convictions are comparable to such obviously religious faiths. Cf. United States v. Seeger, 380 U.S. 163, 176 (1965).

What the Court has done over the years is to proffer a modem sociological definition of religion as governing the meaning of that term in the First Amendment. To sustain its position the Court has oftentimes cited the works of contemporary theologians.

For example, in its interpretation of the religious conscientious objector exemption to military service, the Court relied upon the works of Paul Tillich to justify its conclusion that “belief in a Supreme Being” could include faith in “‘the power of being, which works through those who have no name for it, not even the name God.”‘ Id., 388 U.S. at 180.

But the Court has not limited itself to theologians. It has also turned to contemporary ethicists where it has found an even more expansive definition of religion:

“Religion … must surely mean the devotion of man to the highest ideal that he can conceive. And that ideal is a community of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavors to cultivate the best in their fellow man.” Id., 380 U.S. at 183.

Such religious egalitarianism dispenses with the judicial duty to define religion with any specificity at all.

This has been welcomed by many as the only legitimate approach that the Court can take in order to disentangle itself from religious controversy and to recognize the changing religious landscape in America since the Constitution was written.

Laurence Tribe of Harvard is a leading voice embracing this legal realism:

… [I]n order to realize the goals of religious liberty, “religion” must be defined broadly enough to recognize the increasing number and diversity of faiths. Furthermore, “religion” must be de fined from the believer’s perspective. Excessive judicial inquiry into religious beliefs may, in and of itself, constrain religious liberty. Thus, the Court held in Thomas v. Review Board, beliefs are adequately religious even if they are not “acceptable, logical, consistent, or comprehensible”…. L. Tribe, American Constitutional Law 1181 (2d Ed. 1988).

The Court and Professor Tribe simply ignore the constitution al text and First Amendment history in arriving at their definition of religion and its free exercise. They have made no effort whatsoever to prove why a twentieth century theologian’s or ethicist’s views should determine the meaning of an 18th century text. Nor have they made any effort to explore the historical conflict leading to the adoption of that text.

Recently, Justice David Souter has called this failure to the Court’s attention. Faulting Smith for failure “to consider the original meaning of the Free Exercise Clause,” Justice Souter acknowledged that Justice Scalia’ s “overlooking the opportunity was no unique transgression:”

Save in a handful of passing remarks, the Court has not explored the history of that Clause since its early attempts in 1879 and 1890 …. The curious absence of history from our free-exercise decisions creates a stark contrast with our cases under the Establishment Clause, where historical analysis has been so prominent. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. –, 124 L. Ed. 2d 472,517-18 (1993).

Justice Souter urged the Court in an appropriate case “to explore the history that a century of free-exercise opinions have overlooked.” He called the Court’s attention to recent scholarship that provides “strong argument… that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one’s duty to one’s God, unless those activities threatened the rights of others or the serious needs of the State.” Id., 124 L.Ed. 2d at 518.

Among the scholarly articles cited by Justice Souter, none has been more widely quoted and relied upon than the lengthy historical account of religious freedom in America’s founding era written by University of Chicago law professor, Michael W. McConnell. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” 103 Harv. L Rev. 1409 (1990).

Religion: The Historical Definition

The McConnell thesis is based upon a study of the history of the struggle for religious freedom in America, culminating with the adoption, in 1791, of the Bill of Rights, including the Free Exercise Clause. His is a freewheeling and broad-based assessment of the colonial experience, the early state constitutions, state legislative action, and state ratification debates leading to the formulation of the Bill of Rights. His reading of the text of the Free Exercise Clause comes near the end of the historical drama and is colored by it.

By beginning with an open-ended survey of history, McConnell is free to explore a number of possible meanings of free exercise of religion outside the discipline of the text. This is a questionable methodology to say the least.

In the legal analysis of a written document, whether it be a contract, a statute, or a constitution, one does not engage initially in an historical survey of the subject matter addressed in the document. Instead, one begins with the language of the document, turning to history only for the purpose of giving meaning to the text or resolving an ambiguity. In this way, one’s historical inquiry is limited to those events that are arguably relevant to the textual issues.

Two specific examples illustrate the dangers of McConnell’s methodological choice. He devotes considerable space to a chronicle of legislative actions exempting religious conscientious objectors from certain civil duties. Id. at 1466-1473. But of what relevance are legislatively granted exemptions? Do they not smack of legislative discretion, rather than of universal constitutional obligation?

Many of the examples given by McConnell are clearly political “accommodations” to avoid conflicts with certain religious groups, not resolutions based upon the free exercise principle. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective,” 60 Geo. Wash. L. Rev. 915, 929-30 (1992). By not phrasing his historical inquiry in the rigorous fashion required by a pre-existent textual framework, McConnell lumps all of the legislative action, discretionary and obligatory, into a single proposition about the meaning of the free exercise of religion.

While McConnell admits that his historical account of legislative exemptions for religious dissenters is ambiguous, he nevertheless suggests that “the exemptions were granted because legislatures believed the free exercise principle required them.” Id. at 1473.

Had McConnell begun with the constitutional text, he would have been required to give concrete evidence that the legislatures had acted out of duty, not out of discretion, before he could recount them at all. Without the discipline of a textual framework, he is able to create a stronger impression favoring the notion that free exercise means liberty of individual conscience.

A second example is even more telling. McConnell claims that the state constitutional treatment of religious freedom contains that strongest evidence of the meaning of “free exercise of religion” in the First Amendment. McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 U. Chi. L. Rev. 1109, 1118 (1990).

In his review of these texts, however, McConnell gives equal weight to state constitutional provisions that do not contain the phrase “free exercise” and to those that do. McConnell, Origins at 1456- 58. As for the state constitutions that do refer to “free exercise,” he pays little attention to the fact that all but one of them deny “free exercise” to activities that threaten the peace and safety of the community. Id. at 1455-58. See Hamburger, supra.

As for the one state constitution -Virginia’s- that, like the First Amendment, contains the free exercise language without limitation, McConnell goes to great lengths to explain away the text in order to make it conform with those texts that express1y include an exception. Id. at 1462-63. What McConnell does with the various disparate state constitutional texts is to ignore their differences in order to extract a common theme from them.

There was, in fact, no common theme, but significant differences among the eleven original states which adopted constitutions before 17 87. Six of them guaranteed protection to specified acts of religious freedom so long as they did not disrupt the peace and safety of the civil society. E.g., N.Y. Const. of 1777, Art. XXVIII; N.H. Con st. of 1784, Part I, Art. V; Del. Decl. of Rights of 1776, Sections 2, 3; Md. Decl. of Rights of 1776, Art. XXXIII; Mass. Const. of 1780, Art. II; S.C. Const. of 1790, Art. VIII, Sect. 1. Three others extended absolute protection to certain specified acts of religious worship, but no protection to any other religious acts. N.J. Const. of 1776, Art. XVIII; Pa. Const. of 1776, Art. II; Vt. Const. of 1777, C. I, Art. Ill. Only two, Georgia and Virginia, extended constitutional protection to “religion” generally. Georgia expressly limited its guarantee with the proviso that one’s free exercise of religion not be “repugnant to the peace and safety of the State.” An earlier draft of the Virginia free exercise clause contained a similar qualification, but that was eliminated at the behest of James Madison.

These textual differences and similarities were of little, if any, concern to McConnell. But they should have been primary. For the task at hand is to determine the meaning of the free exercise of religion clause in the First Amendment, not of religious freedom generally. By approaching the question in the way that McConnell did, he not only ignored the text, but he forced an interpretation upon it that wrenches it from its plain meaning.

Religion: The Textual Definition

By the time that McConnell reaches the text of the First Amendment, he has laid the groundwork for construing “free exercise of religion” to mean “rights of religious conscience.” ld. at 1488- 1500. Having previously used the terms interchangeably in describing the history of religious freedom, McConnell runs into a snag as he recounts the history of the text as it moved through the First Congress.

Madison initially proposed that religious freedom be protected as follows: “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” By the time the proposal passed the House the text was substantially changed to read:

Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.

While this text passed the House, it failed in the Senate. The latter body struck the conscience provision altogether, opting for the free exercise guarantee linked to the prohibition against the establishment of religion.

McConnell laments that there is no record extant to explain the Senate’s action. So he spends a good deal of energy examining the various dictionary definitions of “religion” and “conscience,” noting their differences. He finally concludes:

The reference to conscience could have been dropped because it was redundant, or it could have been dropped because the framers chose to confine the protections of the free exercise clause to religion. Id. at 1495.

As for the possibility of redundancy, McConnell previously acknowledges that the version containing both “religion” and “conscience” had been drafted by Fisher Ames, “a notoriously careful draftsman and meticulous lawyer.” ld. at 1483. If so, then rights of conscience must have meant something different from free exercise of religion or Ames would not have placed both of them in his draft.

As for religion, McConnell claims that what was really meant by the word was “religious conscience.” He comes to this conclusion on the ground that “conscience” was too broad a term and that “religion” was necessary to confine the free exercise clause’s protections to “religious claims” as contrasted to nonreligious ones. Id. at 1495-96.

If that is what the drafters meant to say, would it not have been more likely for Congress to have modified the “rights of conscience” terminology that appeared in the Ames draft, rather than to have eliminated it altogether? McConnell does not ask this question, much less answer it.

But the textual difficulty for the McConnell view is far more serious. If “religion” means “religious conscience” for Free Exercise purposes, then it must mean the same thing for Establishment Clause purposes. For the text reads: “Congress shall make no law respecting an Establishment of religion or prohibiting the free exercise thereof….”

As Justice Wiley B. Rutledge pointed out in Everson v. Board of Education, 330 U.S. 1, 32 (1947), the single word, “[r]eligion … governs two prohibitions and governs them alike … Thereof’ brings down religion with its entire and exact content, no more and no less, from the first into the second guaranty ….”

The McConnell definition of religion would mean that the First Amendment forbids any law respecting an establishment of “individual judgment” or “the inner faculty of judgment.” McConnell, Origins, at 1490. How absurd! What would be prohibited would be the very freedom that the Establishment and Free Exercise Clauses were designed to preserve, namely, freedom from the power of the state in the performance of one’s religious duties.

Had McConnell done a straight textual analysis he would have discovered that the First Amendment religion clauses were derived specifically from Section 16 of the 1776 Virginia Constitution and from the disestablishment of religion in that state through the 1786 Act for Establishing Religious Freedom. See Everson v. Board of Education, supra.

Like the Virginia constitution, the First Amendment used the phrase “free exercise” and like that same pro vision, the First Amendment allowed for no exceptions in the interest of the peace and safety of the community. And like Virginia, the First Amendment used the word, religion, to define the scope of both the no Establishment and Free Exercise principles.

The Virginia constitution, however, contained a definition of religion that the First Amendment omitted altogether. Given the similarities between them, however, one can safely conclude that the definition in the Virginia document applies equally to the federal one.

This was certainly the inference drawn by the Supreme Court in 1879 and 1890 · when it decided the Mormon polygamy cases. See Reynolds v. United States, 98 U.S. 145, 162-63 (1879) and Davis v. Beason, 133 U.S. 333, 342 (1890).

Article I, Section 16 of the Virginia Constitution defined religion as “the duty which we owe to our Creator” and which “can be directed only by reason and conviction, not by force or violence.” In other words, religion is a jurisdictional term designed to exclude from the power of the State any duty, the nature of which can only be enforced by reason and conviction.

If a duty is subject only to reason and conviction, then its performance or nonperformance was subject to “the dictates of conscience,” not to the coercive power of the state. This principle held true even if the state could show that it had a compelling state interest in subordinating individual conscience to the interests of civil order. The protection afforded free exercise was absolute.

If, on the other hand, a duty by its nature may also be enforced by force and violence, then it is within the coercive power of the state. No constitutional protection was available to anyone who because of religious conscience could not obey. His only appeal was to legislative grace.

In the early history of enforcement of the Free Exercise Clause the Supreme Court adhered to the jurisdictional test reflected in its text. In Smith, the Court has opted to return to that textual principle. If Smith is true to the jurisdictional principle then we should see an expansion of free exercise rights for there are a number of duties owed exclusively to God that are now subject to the rule of the State. See the Forecast (April 1995).

RFRA departs from this principle, affording the free exercise of religion less protection than available under the jurisdictional test for it concedes total jurisdiction to the government, permitting liberty of conscience only when the government cannot show a compelling necessity to act. As can be seen from the operation of that test before Smith, the compelling interest test will be used by the government to intrude upon areas of activities long held immune from civil power.

RFRA, however, is unconstitutional and should be struck down (See the Forecast {May 1995}), opening up the opportunity to extend the Smith jurisdictional principle to a number of areas now dominated by civil government, but by nature subject only to individual conscience.


For years civil authorities in the United States have breached the jurisdictional wall separating church and state. By establishing tax-supported welfare, the state has encroached upon the religious duty of the people to care for the poor (James 1:27) according to rules established by the church, not by the state (II Thess. 3:10; 1 Tim. 5:8-16). Titus, The Establishment Clause: Welfare,” The Forecast 5 (Sept.1, 1994).

By establishing tax-supported education, the state has secured a near monopoly in providing for the education of the children, wresting control from their parents who are duty bound to teach their children (Eph. 6:3), aided and guided by the church, not by the state (Mt. 28: 18-20). Titus, “The Establishment Clause: Education,” The Forecast 5 (July 1, 1994).

While the state has not yet outlawed private charity and education, it has through its taxing power exerted significant control over those endeavors. This has been accomplished primarily through the administration of the federal tax laws conferring tax-exempt status upon “[c]orporations … organized and operated exclusively for religious, charitable … or educational purposes.”

In Bob Jones University v. United States, 461 U.S. 574 (1983 ), the United States Supreme Court affirmed that the Internal Revenue Service was authorized to deny tax-exempt status to Bob Jones University because the University’s rules governing interracial dating violated the government’s public policy prohibiting racial discrimination in education.

Congress had conferred this authority upon the IRS, the High Court concluded, by statute which, in turn, was rooted in the “common law standards of charity -namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.” Id., 461 U.S. at 586.

While attorneys for Bob Jones challenged this interpretation of the Code, claiming that Congress had intended that the IRS grant tax-exempt status to any bona fide charitable, educational, or religious organization, they did not challenge this interpretation as contrary to the Free Exercise Clause of the First Amendment of the Constitution.

Instead, they conceded that Congress had the authority to control tax exemptions “for the benefit of society” but that the benefit claimed in the particular case before the court was not so compelling that it justified encroaching upon the religious conscience of the university. Id., 461 U.S. at 602-03.

The High Court rejected this claim with a single paragraph:

The governmental interest at stake is compelling … [T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education …. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs. Id., 461 U.S. at 604.

By yielding the jurisdictional point, the attorneys for Bob Jones made a strategic mistake, one that has led to the near demise of the Free Exercise Clause.

A Strategic Error

The First Amendment, according to the arguments of BJU’s attorneys, does not protect “nonreligious private schools” but only “schools that engage in racial discrimination on the basis of sincerely held religious beliefs.” Id., 461 U.S. at 602.

First, by making this distinction, the Bob Jones attorneys played right into the hands of those in America who have claimed that the Establishment Clause requires the separation of the “secular” from the “religious.” If the Free Exercise Clause protects only an individual’s “religious” conscience, then the Establishment Clause must protect the state’s “secular” domain from “religious” intrusions.

Any other rule would allow religious people to use the state to impose their morals and values upon nonreligious people who have, by definition, no Free Exercise protection. The only comparable protection that nonreligious people have is an Establishment Clause that demands that all laws be strictly “religiously neutral.”

Second, the Bob Jones attorneys weakened the Free Exercise Clause. By limiting it to the protection of “religious conscience,” the Free Exercise Clause takes on the political baggage of a “special privilege.” If only “religious people” are protected by the Free Exercise Clause, nonreligious people will either be indifferent towards its guarantees or seek to narrow them in order to see that all people are treated “equally.”

Moreover, limiting the Free Exercise Clause protection to only “religious objectors” invites all kinds of phony “religious conscience” claims. In order to avoid “passing judgment” on such claims, courts will dignify them with such comments as “sincerely held” and seek other ways to deny constitutional protection. See, e.g., Bowen v. Roy, 467 U.S. 693 (1986) (Petitioners sought welfare benefits from the state but refused to accept a social security number for their child on the ground that assigning the number to the child would “rob the spirit” of the child).

Reducing the Free Exercise Clause to a matter of subjective religious conscience inevitably leads the courts to overinflate the significance of the interest of the state. If a person may disobey a civil rule solely on the basis of his private religious belief, then the entire civil order is at stake. Not surprisingly, the High Court has found few state interests insufficiently compelling to override such claims of conscience. McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 U. of Chic. L. Rev. 1109, 1120, n. 45, 1122, n. 56. See Titus, “The Free Exercise Clause: 1990-Present,” The Forecast 11, 14 (April 1995).

Such weakening, in turn, stimulates people who qualify for Free Exercise protection to seek greater protection, such as has recently occurred in the enactment of the Religious Freedom Restoration Act of 1993. See Titus, “The Free Exercise Clause -The Religious Freedom Restoration Act of 1993,” The Forecast 8 (May 1995). Acts like these -exempting people from civic duties for “religious conscience” sake- reinforce those who claim that the Establishment Clause demands strict religious neutrality in the formulation of public policy. After all, why should religious people have any hand in making public policy if they, and they alone, have significant statutory and constitutional exemptions from obedience to it?

Indeed, why should religious people have the right to bring their religious views into the political arena at all? Some have argued just that {See Titus, The Establishment Clause: Public Policy,” The Forecast 12, 14 (Nov. 1994)}, prompting many in the Christian community to call for a constitutional amendment to restore “equality” for religious speech in the marketplace of ideas. Hooten, “Religious equality: Putting it in Writing,” 9 Citizen 1-3 (June 19, 1995).

What is needed, however, is not a constitutional amendment but a return to the original jurisdictional principle of the Free Exercise Clause.

The Jurisdictional Principle

In Bob Jones, Chief Justice Warren Burger had no difficulty accepting the claim of the United States that the Government had jurisdiction over charity. He quoted with approval the House Report supporting the enactment of the charitable deduction provision of the Revenue Act of 1938:

The exemption from taxation of money or property devoted to charitable and other purposes is based upon the theory that the Government is compensated for the loss of revenue by its relief from financial burdens which would otherwise have to be met by appropriations from other public funds, and by benefits resulting from the promotion of the general welfare. Id., 461 U.S. at 590.

The Court, then, reinforced Congress with its own theory conceding total jurisdiction over charity to the Government:

When the Government grants exemptions or allows deductions all taxpayers are affected; the very fact of the exemption or deduction for the donor means that other taxpayers can be said to be indirect and vicarious “donors.” Charitable exemptions are justified on the basis that the exempt entity confers a public benefit … [T]o warrant exemption … an institution … must demonstrably serve and be in harmony with the public interest. The institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred. Id., 461 U.S. at 591.

Having surrendered jurisdiction completely, the High Court put its imprimatur on the IRS:

Guided … by the Code, the IRS has the responsibility, in the first instance, to determine whether a particular entity is “charitable” … This in turn may necessitate later determinations of whether given activities so violate public policy that the entities involved cannot be deemed to provide a public benefit worthy of “charitable” status. Id., 461 U.S. at 597.

By relying upon English common law, a law developed in an established church state, the Supreme Court never asked whether the First Amendment, which had disestablished the church, made any difference in the continued relevance of the common law tradition governing charities and education. This is surprising in light of the Court’s consistent refusal, in the name of the First Amendment religion clauses, to honor the common law tradition punishing a number of “offenses against God and Religion,” including heresy and blasphemy. See, e.g., Everson v. Board of Education, 330 U.S. 1 (1946).

A careful look at the writings of James Madison and Thomas Jefferson, in support of the free exercise of religion, reveals that the English traditions governing education and charities would not prevail in their native Virginia.

As for education, both Jefferson and Madison denied to the state any authority to educate or to tax the people to support an educational program. “[T]o suffer the civil magistrate to intrude his powers in the field of opinion,” wrote Jefferson in his 1786 Statute for Establishing Religious, “is a dangerous fallacy, which at once destroys all religious liberty, because he being of course the judge … will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with his own.”

“The opinions of men,” wrote Madison in his 1785 Memorial and Remonstrance against Religious Assessments, “depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.”

Therefore, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves,” wrote Jefferson in his statute, “is sinful and tyrannical”:

[I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order ….

The very nature of tax-supported public education violates these principles of the Free Exercise Clause, for as Madison put it the formation of opinions is “Religion” and, therefore, “is wholly exempt from … [the] cognizance” of Civil Society.

Likewise, so is welfare. As Article I, Section 16 of the Virginia Constitution of 1776 put it, charity is a “mutual” not a “civil” duty.

To extend the taxing power of the state to “educational, religious, and charitable” organizations, except when those institutions demonstrate to the civil authorities, that their activities are consistent with public policy is a violation of the Free Exercise Clause. Any ruling to the contrary would ignore the maxim made famous by Chief Justice John Marshall: “The power to tax is the power to destroy.”

No Taxation

Recently, the historic tax immunities enjoyed by the church and other religious groups have been challenged as violating the Establishment Clause. These assaults have continued even though the Supreme Court ruled by a vote of 8 to 1 that such tax immunities do not violate that provision. Walz v. Tax Commission, 397 U.S. 664 (1970).

In that case, Chief Justice Warren Burger refused to consider whether the Free Exercise Clause commanded tax immunity. Instead, he treated the issue as one of tax exemption, thereby limiting his assessment of constitutionality to the Establishment Clause concerns raised by state subsidization. On that point, he concluded that exempting the church from taxation was not the equivalent of supporting that church with tax revenues:

The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. Id., 397 U.S. at 675.

In dissent, Justice William 0. Douglas disagreed. He found no constitutionally significant difference between a tax subsidy and a tax exemption. Id. 397 U.S. at 704. On the other hand, he found a constitutional difference between tax immunity and tax exemption. As to the former, Justice Douglas acknowledged that the Free Exercise Clause prohibits a tax levied on “the privilege of delivering a sermon.” I d., 397 U.S. at 706-07.

As to such a privilege, Douglas assumed that the government had no jurisdiction, even to levy a general license tax for the privilege of selling goods when that tax was imposed on a person selling religious tracts in conjunction with his preaching the gospel. Titus, “No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion,” 22 Cumberland L. Rev. 505, 518 (1992).

The question is: What are those privileges that are immune from the jurisdiction of the civil authorities? For if an activity is outside the civil jurisdiction, then the state may not tax it period. Refraining from exercising a power that it does not have could, by definition, not be a subsidy, because a subsidy itself presupposes jurisdiction.

Madison proposed that this question could be answered only by identifying those duties that all men owed exclusively to the Creator as the Governor of the universe:

Before any man can be considered as a member of any particular Civil Society, he must be considered a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with the saving of his allegiance to the Universal Sovereign. Madison, Memorial and Remonstrance (1785)

With regard to such duties, the Governor of the Universe is to the United States and the States as the United States is to the States: The Supreme and Only Law Giver and Enforcer. As is true of an instrumentality of the United States, so it is true of an instrumentality of the Universal Sovereign: It is immune from the taxing power of an inferior governing official. Titus, “No Taxation or Subsidization,” 22 Cumberland L. Rev. at 516.

If this jurisdictional principle were applied, the Free Exercise Clause would immunize the first ten percent of every person’s “increase” (income) because that percentage, being the tithe, belongs exclusively to God and subject solely to His jurisdiction (Gen. 14:20).

The Free Exercise Clause would also immunize from taxation all property and employment relations of organizations and institutions dedicated and engaged in education, charity, and worship. For those activities arise out of a person’s duty to the Creator and are subject solely to His jurisdiction. See Titus, “The Social Security Amendments of 1983: A Tax on Religion,” 1 Benchmark 10 (Jan/Feb 1984).


The Free Exercise Clause was designed to work a dramatic change in the relationship between the church and the state. The church would be freed from the power of the state. The Establishment Clause, in turn, would prevent the state from enforcing the rules of the church or from usurping her role in Civil Society.

In modern America, we see only a remnant of the promise of these two great guarantees. The church remains free of the taxing power of the state, but knows that any significant misstep could bring its tax exempt status crashing down. The state has refrained from enforcing or usurping the evangelical mission of the church, but has undermined it with its near monopolies on education and welfare.

The original vision of a free church and a limited state can only be realized by a return to the jurisdictional principle that united the Free Exercise and Establishment Clauses in the first place: To secure those duties that are owed exclusively to the Creator – the ones enforceable only by reason and conviction – from any and all encroachments by the civil authorities.

First:   Free Exercise Clause From 1791-1990
Second:   The Smith Rule Restated, Applied, Attacked
Third:   Religious Freedom Restoration Act


*     Copyright © 1995, 2021 Herbert W. Titus. This article originally published in The Forecast, Vol. 2, Nos. 5-11 (1995). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.