The U.S. legal system has a deep tradition of protecting and respecting individual rights of conscience, particularly religious conscience. Respect for and protection of religious freedom predates the adoption of our Constitution and undergirds the First Amendment of Americans’ Bill of Rights.
James Madison, John Adams, Thomas Jefferson, George Washington and many other constitutional representatives believed that religious freedom could only survive through each individual’s search of their own conscience, not what a pope or a government mandating what was correct religious practice.
When our nation was founded, two different views of protection of religious conscience were competing. One view was that protection of conscience was a matter of utilitarian tolerance and prudent political accommodation. “Accommodation,” while sounding good, did not make freedom of worship a legal right but depended on the toleration of sound public policy, neighborliness, goodwill, and expedient politics. If that view had prevailed, we would now have only a weak and unreliable civil-rights tradition in the separation of church and state.
The founders took from French freethought philosophers a positive adoption of an inviolate right of conscience, as the first right listed in the Bill of Rights. Early colonial charters followed suit and state constitutions spoke of it as a right. The Virginia Declaration of Rights was initially drafted to guarantee “fullest toleration” of religion but Madison amended it to say that “all men are entitled to the dictates of conscience.” When an effort to revive the religion tax in Virginia was made after the War of Independence, Madison drafted his famous “Memorial and Remonstrance” using language of positive rights, not mere toleration: “The equal right of every citizen to the free exercise of his Religion according to the dictates of his conscience is held by the same tenure with all our other rights.” He described it as “an unalienable right,” and explained:
“The Religion 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 … 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.”
What this is NOT is a path for people who would use their narrow interpretation of faith to tell the rest of us what to do.
Secular government protects us from people who believe they know what’s best for us when it comes to religion. Most of our citizens don’t know just who allied with the founding fathers in keeping government out of religion with the First Amendment. In my just-published book, Your Church, My State, I tell the history of the likelihood that without the Baptist’s backing and outspoken effort we may not have had the First Amendment that we know and respect today. Of course, there was no Southern Baptist Association at that time. It came along for the protection of slavery with the Civil War. The Baptist at the founding of the Constitution was the largest protestant membership in the nation.
You might observe the obvious that our legal and historical record does not include significant or meaningful references to the Ten Commandments, the Pentateuch, the Koran or to biblical law generally. Let’s keep government out of religion and religion out of government.