Part III | Expanded Analysis
Category A | Frameworks
Topic 4 | First freedom
Religious freedom is often called our “first freedom,” not only because it appears at the beginning of the U.S. Constitution’s First Amendment but also because it is foundational for other freedoms, including freedom of speech, freedom of the press, and freedom of association and assembly.125
Introduction
"Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God’s."126
The history of the emergence of religious freedom as a fundamental right is long and complicated. Those who defended religious freedom through the ages did so by arguing that government authority should be limited. The concept of limited government authority paved the way for the recognition of other freedoms, including freedom of speech and of assembly.127 However, the concept of limited government authority over religion took centuries to develop.
History of the concept of religious freedom
The term religious liberty was not coined until early Christianity. Religion was so deeply ingrained in ancient cultures that no concept of religion-state separation existed.128 Religious “liberty” only existed to the extent that “other” religion was tolerated.129 This was true for the ancient Sumerians, the Greeks, and the Romans.130 It was not difficult for ancient empires to be tolerant.131 In the process of expanding empires, religious toleration was required to maintain social order among dissimilar groups with polytheistic religions.132 And polytheistic gods generally required physical rituals for appeasement,133 which were not threatening to empire building—unlike pacifism or refusal to pay taxes, for example.
The Roman Empire tolerated different religions, but that toleration had limits. For example, Roman historian Cassius Dio recorded that it was Roman policy to “abhor and punish” “[t]hose who attempt to distort our religion with strange rites . . . , not merely for the sake of the gods . . . but because such men, by bringing in new divinities . . . persuade many to adopt foreign practices, from which spring up conspiracies, factions, and cabals, which are far from profitable to a monarchy.”134 But if a society offered obedience to the Roman gods, and if their own gods did not break from the Roman culture, their religious beliefs and acts were generally tolerated.135
In exercising limited tolerance, the Romans were simply propagating an age-old understanding of religion. Consider how quickly Nebuchadnezzar threw Shadrach, Meshach, and Abednego into the fire for not worshipping his idol,136 or how even the Persian king Cyrus, often viewed as the forerunner of religious tolerance, destroyed many Greek temples.137
The Jews differed from other conquered polytheistic cultures, in worshiping only one God and refusing to worship any others, including Roman gods.138 As a result, they were viewed with suspicion and met with Roman oppression. When the Jews rioted in protest after a Roman governor confiscated a significant amount of money from their temple coffers, they were severely punished by the Romans.139 Many nationalist Jewish zealots were killed, and the Great Temple in Jerusalem was destroyed.140
Such examples illustrate that religious toleration did not automatically lead to religious liberty or other liberties in antiquity. A tolerant government reserves the right to intervene.141 Only after the advent of the Christian era did the concept of a natural right to worship—protected from government coercion—materialize.
Tertullian may have been the first to conceptualize religious liberty.142 Born in 155, Tertullian’s pagan and educated upbringing eventually led him to Christianity.143 His book Apology attempted to defend the Christian faith against Roman persecution.144 There he argued that religious liberty meant freedom to practice according to conscience: “See you do not end up fostering irreligion by taking away freedom of religion [libertas religionis] and forbid free choice with respect to divine matters, so that I am not allowed to worship what I wish, but am forced to worship what I do not wish. Not even a human being would like to be honored unwillingly.”145
Tertullian did not rely on religious tolerance to advance his defense of Christianity. Rather, he focused on the concept of freedom146—that humans should have the ability to act out their religious beliefs without external coercion.147 He wrote that it is unjust “to force freemen to offer sacrifice against their will; divine service requires a willing mind.”148 A corollary to this assertion was that state authority should be limited, to allow space for individual will.
Eventually, Roman persecution of Christians subsided, and the battle between paganism and Christianity within the Roman Empire was ceded to the Christians. The Roman emperor Constantine, who converted to Christianity due to a vision he received before battle, supported an early concept of religious freedom in what is known as the Edict of Milan.149 Issued in 313 A.D., the Edict delineated protected spheres of religious freedom by stating that Christians had places “in which they had the habit of assembling” and that these places “belong[ed] by right to their . . . church.”150 The Edict’s acknowledgment that certain aspects of religion were outside state control suggests that Tertullian’s arguments eventually bore fruit.
The Magna Carta, signed and issued by King John of England in 1215, established limits on the power of the king and his government, making them subject to the rule of law. The first of its 63 clauses151 declared that “the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired” by government authority.152
Two series of treaties ending religious conflicts in Europe, known as the Peace of Augsburg (1555) and Peace of Westphalia (1648), established the principle cuius regio, eius religio (whose realm, his religion). This principle effectively granted religious freedom to rulers and states, allowing them to determine the established church within their respective territories. These accords also provided circumscribed protections for individuals belonging to religious minorities to practice their faith in private, as well as in public at appointed times.153
Despite these developments in Europe toward religious tolerance, religion and state comingled for centuries.
In the sixteenth century, Martin Luther (1483–1546) proposed division between earthly and godly authority, akin to two kingdoms: “One to produce piety, the other to bring about external peace and prevent evil deeds.”154 Luther asserted that government rule should not extend any further than “life and property and affairs on earth.” 155 Earthly authority extending into the realm of the soul “encroaches on God’s government and misleads the soul.”156
Luther's teachings paved the way for the writings of John Locke (1632–1704) on religious and secular authority. In An Essay on Toleration (1667) Locke wrote that theological beliefs “have an absolute and universal right to toleration” and that “unlimited toleration” be given to the “place, time and manner of worshipping . . . God.”157 Locke defined a church as “a free” and “voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such manner as they judge acceptable to him, and effectual to the salvation of their souls.”158 Like Luther, he demarcated the boundaries of civil and religious authority, concluding “that all the power of civil government relates only to men’s civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come.”159
During Locke’s lifetime, prominent American colonists also advocated for religious freedom, though not always universal religious freedom. And while some argued against state or “established” churches, all 13 colonies had either an official state church or governments with “some elements of religious establishment.”160
The colony of Maryland was planned and founded by George and Cecil Calvert, First and Second Lords Baltimore, as a refuge for Catholics and Protestants. The Maryland Act of Toleration or Act Concerning Religion (1649), drafted by Cecil Calvert, was the first law in North America to mandate “free exercise” of religion and religious tolerance for Trinitarian Christians.161
An outspoken critic of the Puritan Church’s involvement in colonial affairs, Roger Williams (1603–83) famously fled the Massachusetts colony and founded the colony of Rhode Island on principles of personal and religious freedom. Williams considered non-establishment and religious freedom to be godly principles, explaining that God established a “hedge, or wall of separation, between the garden of the church and the wilderness of the world” that must be maintained.162 Physician and Baptist minister John Clarke (1609–76) drafted Rhode Island’s Royal Charter as the colony’s cofounder with Williams. The 1663 charter granted a heretofore unprecedented degree of individual religious freedom from state control: “that all and every person . . . . may . . . freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments.”163
William Penn (1644–1718) founded the colony of Pennsylvania, which became a refuge for members of the Religious Society of Friends (known as “Quakers”) and other religious minorities. Shortly after the colony’s founding, Penn’s Act for Freedom of Conscience (1682) was passed by the colony’s first Assembly to prohibit government coercion, control, or interference in the realm of conscience; however, the Act limited freedom of worship to monotheists and limited the rights to vote and hold office to Christians.164 Penn’s later Charter of Liberties (1701) similarly guaranteed that the colony’s government could not abridge rights to nondiscrimination and freedom of religious belief and worship—but limited those guarantees to monotheists.165
James Madison (1751–1836), author of the U.S. Constitution’s Bill of Rights, expanded on Luther’s, Locke’s, and early American colonists’ philosophies of separate religion-state spheres in his Memorial and Remonstrance (1785).166 In arguing against state funding of churches, Madison asserted that separate spheres must be maintained because religious belief is “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”167 Given the sovereignty of religious belief, Madison concluded that “[r]eligious liberty was defended not on the basis of the [civil] rights of the believer, but on the sovereignty of God over matters spiritual.”168 Echoing Tertullian, Madison asserted that God demands genuine faith, rather than coerced rituals, and the development of such faith requires the freedom to exercise faith.169
The Virginia Statute for Religious Freedom, authored by Thomas Jefferson (1743–1826), was adopted by Virginia’s General Assembly on January 16, 1786.170 The statute had first been introduced to the Assembly in 1779 but languished until Madison penned his Memorial and Remonstrance in response to a proposed bill that would have provided state funding for Christian teachers. The Virginia Statute effectively disestablished the Church of England in Virginia, prohibiting coercion by the state in matters of conscience or religion, including coerced financial support of religion through taxation. It further recognized the right to maintain and express beliefs without civil penalty. And it declared the rights recognized by the Statute to be “natural” and unalienable—unable to be repealed or narrowed by law.
The Virginia Statute foreshadowed the U.S. Constitution’s First Amendment, adopted in 1791, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The first clause is known as the [Non-]Establishment Clause, while the second clause is known as the Free Exercise Clause. Even given these constitutional protections, the last state church in the United States was not officially, financially “disestablished” until 1833,171 and the meanings of free exercise and establishment are being continually (re)interpreted in U.S. courts today.
The U.S. Constitution’s Fourteenth Amendment, adopted in 1868, became the basis for applying the First Amendment’s non-establishment172 and free exercise173 provisions to the states in U.S. Supreme Court cases decided in the post–World War II era.
Religious freedom as the progenitor of other freedoms
That the right to religious freedom appears first in the U.S. Constitution’s First Amendment may be due more to accident than design. (Madison originally intended the right to appear less prominently in the Constitution. When the Bill of Rights was eventually sent to the states for ratification, the right appeared in the third amendment.174) Nevertheless, the status of religious freedom as the first freedom has less to do with its placement in the U.S. Constitution and more to do with its generative power.
Indeed, the concept of religious freedom that developed through the ages served as the progenitor of other freedoms, through (1) the limited government it demanded and (2) the facilitation and support it provided for related freedoms.
First, the idea of separate religion-state spheres, based on the divine sovereignty of religious belief and exercise, necessarily demands a government of limited powers. Law professor and former U.S. federal judge Michael W. McConnell explains,
"The separation of church from state is the most powerful possible refutation of the notion that the political sphere is omnicompetent—that it has rightful authority over all of life. If the state does not have power over the church, it follows that the power of the state is limited. The extent of state power need not be left to the discretion of rulers. Such a conception of limits on the legitimate reach of the state is a necessary precondition to constitutionalism. And once limits are conceived in this way, it becomes possible to craft further limitations on the scope of governmental authority . . . ."175
Thus, religious freedom is the first freedom because, in necessarily limiting government authority, it opened the door for other freedoms to be recognized, constitutionally or otherwise.
Second, religious freedom is the first freedom because it operationally involves other “essentials of human liberty”—such as freedom of speech and of assembly—while undergirding and supporting other significant corollary freedoms.176 Law professor Matthew J. Frank explains that
"[t]he building of any free society begins with a recognition of [religious freedom]. All other human freedoms—to think, to speak, to write, to teach and learn; to marry, to form families, to associate with others in all the varied loves of which we are capable; to work, to invent, to contract and acquire and buy and sell in assuring our material needs are met—all of these are built on the foundation of our freedom from the illusory mastership of the state, and a recognition of our relation to the true Master who made us the kind of beings we are."177
Indeed, many other freedoms emerged from explicitly religious roots, including freedom of speech, which often involved the speech of religious dissenters; freedom of the press, which involved the right to print the Bible; and freedom of association and freedom of assembly, which emerged as religious minorities won the right to gather and worship together.178
Conclusion
The concept of religious freedom evolved through the ages, eventually demarcating separate spheres of state and divine/religious authority. With state authority thus limited, religious freedom could be manifest through other, facilitative freedoms (such as association and speech) and serve to undergird additional freedoms. For these reasons, religious freedom truly is the “first freedom.”
References
125. Toolkit Topic 4 (First freedom) was originally drafted by Jorden Truman, 2022 ICLRS Summer Fellow.
126. Matthew 22:21 (KJV).
127. Michael W. McConnell, Why Is Religious Liberty the “First Freedom”?, 21 CARDOZO LAW REVIEW 1243, 1247 (2000).
128. Id.
129. See R.J. van der Spek, Cyrus the Great, Exiles, and Foreign Gods: A Comparison of Assyrian and Persian Policies on Subject Nations, in EXTRACTION AND CONTROL: STUDIES IN HONOR OF MATTHEW W. STOLPER 233, 235 (Michael Kozuh, Wouter F.M. Henkelman, Charles E. Jones & Christopher Woods eds., 2014).
130. See generally id.
131. See id. at 239–41.
132. Id. at 239–41, 260–61.
133. Id.
134. Cassius Dio, Book LII, ROMAN HISTORY 174, https://penelope.uchicago.edu/Thayer/E/Roman/Texts/Cassius_Dio/52*.html (last visited Dec. 2024).
135. BRIA 13 4 b Religious Tolerance and Persecution in the Roman Empire, TEACH DEMOCRACY, https://www.crf-usa.org/bill-of-rights-in-action/bria-13-4-b-religious-tolerance-and-persecution-in-the-roman-empire (last visited Dec. 2024).
136. Daniel 3 (KJV).
137. van der Spek, supra, at 233–35.
138. BRIA, supra.
139. Id.
140. Id.
141. Michael W. McConnell, Why Protect Religious Freedom?, 123 YALE LAW JOURNAL 770, 778 (2013), https://www.yalelawjournal.org/review/why-protect-religious-freedom.
142. ROBERT LOUIS WILKEN, LIBERTY IN THE THINGS OF GOD: THE CHRISTIAN ORIGINS OF RELIGIOUS FREEDOM 14 (2019).
143. Id. at 10.
144. Id. at 10.
145. Id. at 11.
146. Id.
147. Id.
148. Id.
149. Id.at 22.
150. Id. at 23.
151. The first clause is one of only four clauses in the Magna Carta that remain valid. The Contents of the Magna Carta, UK PARLIAMENT, https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/magnacartaclauses (last visited Dec. 2024).
152. Magna Carta, 1215, THE NATIONAL ARCHIVES, https://www.nationalarchives.gov.uk/education/resources/magna-carta/british-library-magna-carta-1215-runnymede (last visited Dec. 2024).
153. W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 80 (2d ed. 2019).
154. WILKEN, supra, at 56.
155. Id.
156. Id.
157. John Locke, An Essay on Toleration, in LOCKE: POLITICAL ESSAYS 134, 136, 137 (Mark Goldie ed., Cambridge Univ. Press 1997).
158. JOHN LOCKE, A LETTER CONCERNING TOLERATION 11 (William Popple trans., 1689), https://www.google.com/books/edition/A_Letter_Concerning_Toleration_Written_b/L9jYMVtd7vsC?hl=en&gbpv=0 (spellings and capitalization modernized).
159. Id.
160. First Amendment, LEGAL INFORMATION INSTITUTE: CORNELL LAW SCHOOL, https://www.law.cornell.edu/constitution-conan/amendment-1/state-established-religion-in-the-colonies (last visited Dec. 2024); see also DISESTABLISHMENT AND RELIGIOUS DISSENT: CHURCH-STATE RELATIONS IN THE NEW AMERICAN STATES, 1776–1833 (Carl H. Esbeck & Jonathan J. Den Hartog eds., 2019).
161. Maryland Act Concerning Religion, TEACHING AMERICAN HISTORY (Apr. 21, 1649), https://teachingamericanhistory.org/document/maryland-act-concerning-religion (last visited Dec. 2024).
162. ROGER WILLIAMS, THE BLOUDY TENENT OF PERSECUTION FOR CAUSE OF CONSCIENCE DISCUSSED AND MR. COTTON'S LETTER EXAMINED AND ANSWERED 1, 435 (Edward Bean Underhill ed., 1848), https://www.gutenberg.org/files/65739/65739-h/65739-h.htm.
163. Rhode Island’s Royal Charter, RHODE ISLAND SECRETARY OF STATE, https://catalog.sos.ri.gov/repositories/2/resources/410 (link to PDF).
164. Pennsylvania: An Act for Freedom of Conscience, TEACHING AMERICAN HISTORY, https://teachingamericanhistory.org/document/pennsylvania-an-act-for-freedom-of-conscience (last visited Dec. 2024).
165. William Penn, Pennsylvania Charter of Liberties, TEACHING AMERICAN HISTORY (Oct. 28, 1701), https://teachingamericanhistory.org/document/pennsylvania-charter-of-liberties (last visited Dec. 2024).
166. Kevin Vance, The Golden Thread of Religious Liberty: Comparing the Thought of John Locke and James Madison, 6 OXFORD JOURNAL OF LAW & RELIGION 227, 243 (2017), https://doi.org/10.1093/ojlr/rwx006.
167. James Madison, Memorial and Remonstrance Against Religious Assessments, [ca. 20 June] 1785, NATIONAL ARCHIVES: FOUNDERS ONLINE, https://founders.archives.gov/documents/Madison/01-08-02-0163 (last visited Dec. 2024).
168. See McConnell, supra, at 1246–47.
169. Vance, supra, at 244. In developing this concept of religious freedom, Madison may have had in mind the writings of William Penn, who wrote that religious liberty was “not only a [mere] Liberty of the Mind, in believing or disbelieving . . . but [also] the Exercise of ourselves in a visible Way of Worship.” John D. Inazu, The Four Freedoms and the Future of Religious Liberty, 92 NORTH CAROLINA LAW REVIEW 787, 800 (2014) (emphasis added).
170. VA. CODE ANN. § 57-1 (West 2024).
171. See John Witte Jr. & Justin Latterell, The Last American Establishment: Massachusetts, 1780–1833, in DISESTABLISHMENT AND RELIGIOUS DISSENT, supra, at 399, 399–424.
172. Everson v. Board of Education, 330 U.S. 1, 5 (1947) (finding the Establishment Clause applicable to the states through the Fourteenth Amendment).
173. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding the Free Exercise Clause is applicable to the states through the Fourteenth Amendment).
174. McConnell, supra, at 1243.
175. Id. at 1247.
176. Harding, supra, at 176.
177. Matthew J. Franck, Religious Freedom as the First Freedom, RFI (June 14, 2016), https://religiousfreedominstitute.org/2016-6-14-religious-freedom-as-the-first-freedom.
178. See Toolkit Topic 22 (Religious freedom as the grandparent of human rights) for additional discussion and citations.