The First Amendment’s Free Exercise Clause was rooted in the good news revealed in Jesus Christ. Thus, Easter is the perfect time for Christians to reflect on the providence of God in constituting our nation in such a way that a great gospel doctrine was placed in our written Constitution.
The Free Exercise Clause forbids an interpretation of Congress’s enumerated powers in a way that would prohibit “the free exercise of religion.” (How it came to apply to the states is for another day.)
Today, the clause might be used to keep a non-discrimination ordinance from being applied to a Christian foster agency that will not place children with homosexuals, even if the state calls their relationship a marriage (Fulton v. City of Philadelphia). On the ethical flip side, some legal scholars argue the “federal constitution’s free exercise of religion clause can protect abortion rights by requiring states to allow abortion access for those with a sincerely held belief that their religion requires it.”
How that clause applies to these disparate situations cannot be determined until we understand its true meaning, but what most of us are not taught is that it meaning is rooted in particular gospel precept.
A summation of our founding fathers’s intention for that clause is found in two observations made by U.S. Supreme Court Justice Joseph Story in his Commentaries on the Constitution of the United States:
“[T]he right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.”
However, he followed those words with these, “This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience.”
His latter observation suggests a distinction between the law ordering society—common law and civil law—and matters of conscience respecting the worship of God. Madison and Jefferson provide further insight on this distinction and its importance.
James Madison and Thomas Jefferson Corroborate Story’s Summation
James Madison’s initial version of the Religion Clauses in the list of amendments presented to Congress for deliberation as a bill of rights read as follows:
“The civil right 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 pretext, infringed.”
Notice the distinction between civil rights, i.e., civil duties, and religious conscience.
The importance of conscience was made clear during the Congressional debates over the Bill of Rights by the adoption of this amendatory language: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.
The record is not clear how this language changed to its present form, but in their minds, the connection between religion and conscience was clear.
When the distinction Madison made between the law of civil rights (which necessarily entails civil duties) and conscience is taken into account, we can see how Thomas Jefferson’s “wall of separation” letter has been misunderstood and misapplied. He wrote “that religion is a matter which lies solely between man and His God, that he owes account to none other for his faith or his worship.” But Jefferson added that religion, understood as a matter of conscience between man and God, was “separate” from “the legislative powers of government” which could “reach actions only,” i.e., matters of civil rights and duties.
In other words, nothing in the Free Exercise Clause prevents the law from declaring the state shall not place children in homosexual household. It is addressed to conduct and civil rights (duties).
Such a law does not interfere with the conscience of a homosexual as our founding father’s understood the Free Exercise Clause. Nothing has been dictated to the consciences of homosexuals relative to their beliefs about God and, if real, how to come before Him with a clean conscience, if they believe such bears on their relation to God. It also does not require the civil law to grant permission for abortion.
In sum, the Free Exercise Clause is neither a sword nor a shield relative to the regulation of civil rights and duties by law. In that light, we see the importance of a Christian citizenry extending its influence on the public and for Christian magistrates.
Now, a look at the source for this constitutional protection of conscience in a person’s relationship to and worship of God.
The Historic Roots of the Free Exercise Clause and the Easter Message
In his excellent work on the First Amendment’s Religion Clauses, L. John Van Til demonstrates that the “liberty of conscience” entailed in the Free Exercise Clause can be traced back to the work of 16th century Puritan theologian Willam Perkins on conscience. (Van Til’s Liberty of Conscience—The History of a Puritan Idea is a must read for our generation, particularly Christian lawyers who tend to perpetuate the modern Supreme Court’s ahistorical, gospel-denying interpretation of it.)
For Perkins, the precept of conscience in relation to God is a critical aspect of the good news that is the gospel. This precept is stressed in the book of Hebrews and recurs in Paul’s letters.
A summation of it is found in John Owen’s commentary on Hebrews 9:14 (“How much more shall the blood of Christ, who through the eternal Spirit offered himself without spot to God, purge your conscience from dead works to serve the living God?”):
There is a solemn spiritual worship of God under the New Testament also, and ordinances for the due observance of it. This is none have a right to approach unto God by, none can do so in a due manner, unless their conscience be purged by the blood of Christ. And the whole of our relation unto God depends hereon. . . . Even the best works of men, antecedently unto the purging of their consciences by the blood of Christ, are but "dead works."—However men may please themselves in them, perhaps think to merit by them, yet from death they come, and unto death they tend.
This precept--denominated “religious liberty” by English Puritans--succumbed to “religious toleration” under the renewed dominance of the Church of England following the demise of Oliver Cromwell’s Protectorate.
But, in America, religious liberty was to prevail. That’s why we have the Free Exercise Clause. As George Washington explained in a letter to a Hebrew congregation in Rhode Island, “All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of.”
The wisdom of that Clause in view of its modern application can be debated. What cannot be debated is that there is no gospel good news without the declaration that we are offered a clean conscience before the Triune God revealed in Jesus Christ and the prospect of persevering in it unto an indescribable glory by faith in the Christ who dwells in us.
Easter especially calls this gospel to mind. May the Holy Spirit may its declaration efficacious on Sunday.
