And far more often than we should be comfortable with, we are just one vote away from losing these fundamental rights and freedoms. For ourselves and our posterity, we have a solemn obligation not to let that happen.
CHAPTER 1
RELIGIOUS LIBERTY AND VAN ORDEN V. PERRY
Cecil B. DeMille. Catholic nuns. Schoolchildren. World War I veterans. All are directly implicated in the ongoing battles before the Supreme Court concerning religious liberty. This is the inside story of the battles before the Court to protect our First Liberty.
No right is more precious than the right to religious liberty. There is a reason that the Framers of the U.S. Constitution protected religious liberty in the very first clause of the very First Amendment of the Bill of Rights. The right to seek out and worship God, with all your heart, mind, and soul, according to the dictates of your own faith and your own conscience—to believe or not to believe—is fundamental to who we are.
There is no moral and just government that does not respect the religious liberty protections of its people. True political liberty, free speech, social stability, and human flourishing all depend upon a robust and durable protection, under the rule of law, of our fundamental right to choose our faith. And, on the flip side, efforts to undermine religious liberty and to persecute religious minorities are a telltale sign of tyrannical government.
Many who founded this nation were themselves fleeing religious persecution, and they came to form a country where the government could not take away that fundamental liberty. When the Pilgrims left Plymouth, England, aboard the Mayflower in 1620 and subsequently landed in Massachusetts, they were fleeing religious persecution. The Pilgrims were Puritans and were deeply pious men and women (as the Mayflower Compact shows in no uncertain terms).
More than a century later, the Declaration of Independence, the document that gave birth to our nation, declared, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Thirteen years later, the language used by the Framers of the First Amendment reflected this robust commitment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…” The constitutional text does not say religious faith shall be tolerated or accommodated where convenient; it says “Congress shall make no law.”
The two religion clauses that follow are referred to as the Establishment Clause and the Free Exercise Clause. And the intersection of the two has been a source of confusion and the vehicle for many of the more extreme lawsuits and decisions by judicial activists undermining religious liberty.
The Establishment Clause prohibits government from using government power to coerce people to believe one particular religious faith or denomination. Having declared independence from England and fought a bloody war to achieve it, the Framers did not want the United States to have an official Church like the Church of England. Rather, they sought to protect our individual right to choose our own faith.
The left reads its own hostility to faith into the Establishment Clause, arguing that the clause implies the notion of an absolute “wall of separation of church and state.” But the phrase “separation of church and state” is found nowhere in the Constitution. It’s not in the Bill of Rights, and it’s not in the Declaration. Instead, that phrase comes from personal correspondence that Thomas Jefferson wrote the Danbury Baptist Association in 1802.
In that letter, Jefferson was not arguing for a wall to protect government from any acknowledgment of faith, but rather a wall against government interference with churches to protect the church from government. In other words, Jefferson thought that the American people needed a one-way wall stopping government from controlling churches to protect their most basic right.
How do we know this? Well, the purpose of the religion clauses was to protect our “rights of conscience,” as Jefferson put it. They were to protect faith, not to require government to be affirmatively hostile to the acknowledgement of faith.
As the Supreme Court long understood, government cannot “show a callous indifference to religious groups” because “[t]hat would be preferring those who believe in no religion over those who do believe.” Zorach v. Clauson (1952).
But, starting in the 1960s, the Supreme Court began reading the Establishment Clause as doing something much more: requiring the removal of God from the public square.
In 1962, in Engel v. Vitale, the Court banned the public recitation of prayer in public schools, and the next year, in Abington School District v. Schempp, the Court banned reading the Bible in public schools.
The consequences of those decisions were far-reaching, and at the time even some of the more liberal justices expressed caution. In Abington, Justice Arthur Goldberg warned that “brooding and pervasive devotion to the secular” and “hostility to the religious” would violate the constitutional rights of believing Americans. Regrettably, the anti-religious sentiment Goldberg noted all the way back in 1963 would become a strong, persistent trend in Supreme Court cases.
And it is contrary to two centuries of our nation’s history and practice. Indeed, there are countless illustrations of the government’s acknowledgment of our religious heritage, including the statutorily prescribed national motto “In God We Trust,” and even the cry before every single proceeding of the Supreme Court: “God save the United States and this Honorable Court.”
All throughout American history, our political and civil leaders have publicly pointed to their faith in God Almighty. They have appealed to God, they have looked to God, and they have implored their fellow Americans to appeal to and look to God alongside them. When President George Washington issued his famous Thanksgiving Proclamation in 1789, he told his fellow citizens that
