Is Religious Freedom Really Primary
Is Religious Freedom Really Primary?By PETER MANSEAU
Of all the potentially explosive issues of 2012, none has fizzled quite like religion. Mitt Romney’s Mormonism never mattered as much as expected, and questions about Barack Obama’s faith remain relevant only to his most obdurate detractors. Yet there is one way in which religion has been a constant in this campaign, and, surprisingly, it concerns something on which the candidates claim to agree.
At last week’s Alfred E. Smith Memorial Dinner in New York, while Mr. Obama and Mr. Romney used their attempts at stand-up comedy to throw punches disguised as punchlines, it fell to the event’s host, Cardinal Timothy Michael Dolan, to offer words intended to bring both sides together. Addressing the bipartisan, religiously diverse crowd, Dolan greeted them collectively as “people of faith and loyal Americans, loving a country which considers religious liberty our first and most cherished freedom.”
The suggestion that religious liberty is the nation’s “first freedom” has become so commonplace that it seems churlish to question it. Indeed, similar notes have been struck by both sides during the campaign.
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Earlier this month, Catholics for Romney released an online ad featuring Republican vice presidential candidate Paul Ryan making an appeal to members of his church. “In America, we consider religious liberty our first freedom,” he said. “That’s because there’s no constitutional guarantee more precious than our right to the free exercise of religion.” Mr. Romney himself has used the term “first freedom” in this context throughout 2012, as he did in a February op-ed in which he claimed to be fighting on behalf of religious organizations “in their strenuous objection” to the Affordable Care Act. He later made it the central theme of a high-profile appeal to evangelicals during his May 12 commencement address at Liberty University. “From the beginning, this nation trusted in God, not man,” he said. “Religious liberty is the first freedom in our Constitution.… Religious freedom opens a door for Americans that is closed to too many others around the world.”
Mr. Obama, though he is often depicted as an enemy of the “first freedom” by the Romney campaign, has sometimes hailed it in similar terms. On Aug. 10, welcoming members of Congess, diplomats, and foreign dignitaries to a Ramadan celebration at the White House, he said:
Of all the freedoms we cherish as Americans, of all the rights that we hold sacred, foremost among them is freedom of religion, the right to worship as we choose.
Hardly the first president to make such a declaration, Mr. Obama was just putting his own spin on a statement that now seems practically a requirement of the office. Bill Clinton added a rhetorical flourish to the phrase — “Religious freedom is literally our first freedom,” he said — while George W. Bush went historical: “Because the Framers placed the guarantee of religious freedom before other cherished rights, religious liberty in America is often called the first freedom.”
As both Mr. Clinton’s and Mr. Bush’s uses of the phrase suggest, the ostensible reason for ascribing primacy to religion among constitutionally protected freedoms is its place as the first mentioned in the Bill of Rights. Contrary to Mr. Romney’s “first freedom” claim, the actual Constitution does not say anything about religious liberty except to state in Article 6 that no religious “test” will be required of officeholders. Nor does the document once use the word “God,” an omission that some 18th-century Americans decried. (“A Papist, a Mohomotan, a Deist, yea an Atheist” might someday even become president, one critic warned.)
The First Amendment, adopted four years later in 1791, does protect “the free exercise” of religion – but only after barring government from “establishing” religion. Viewed strictly in terms of sequence, the First Amendement’s “first freedom” might be seen as freedom from rather than freedom of religion.
Of course, the line between these has never been entirely clear. There were forces for and against religious liberty in the years following the American Revolution, and their respective motivations would find them strange bedfellows in today’s political environment. Before the Constitution was drafted, a certain amount of religious involvement in the affairs of government was taken for granted by many.
In Virginia, the home state of the two foremost crafters of what we now call religious freedom, Thomas Jefferson and James Madison, the longstanding colonial establishment of the Anglican Church came to an end with independence, but few imagined religious institutions should have no role in public life. Arguing that religion was essential for the morality of the young nation, Patrick Henry proposed a system of state support for multiple Christian denominations in 1784 (to diffuse the focus on Anglicanism). Henry’s proposal was considered religiously tolerant in its day, but Madison and Jefferson thought it did not go far enough. They pushed for the state to remove itself entirely from the business of promoting religion of any kind.
It was this victory against 18th-century supporters of religion in Virginia that inspired the federal protections to which 21st century supporters of religion often appeal. When we also consider that the Constitution and the Bill of Rights intended to leave such questions to the states, some of which had officially established churches until well into the 19th century, the question of when exactly the national freedom of religion was secured becomes still more muddled.
Whatever pride of place religion may have enjoyed during the founding era, the assumption that the written order of the Bill of Rights alone makes religious freedom “first” or “foremost” in terms of significance has not been universally shared since that time. Americans have long been great list makers (“We hold these truths to be self evident…”), but shifting national priorities through the years have reorganized our sense of how rights should be enumerated. For much of American history, “first freedom” was more likely to refer to freedom of the press or speech than religion. In the the middle of the 20th century, however, when the Jesuits John Courtney Murray and Wilfrid Parsons began articulating Catholic understandings of the role of religion in American public life, the phrase found forceful advocates of its current meaning.
Writing in the era of the landmark 1947 Supreme Court case Everson v. Board of Education, which put the issue of indirect state support for parochial schools in the national spotlight, Parsons and Murray used the “first freedom” to enlist history as a safeguard to Catholic practice in an overwhelmingly Protestant nation. In Murray’s words:
In the U.S. there are a dozen major faiths, as well as hundreds of smaller sects. All are faiths held by those who are equally American citizens, and who are not to suffer inequalities in their citizenship by reason of their faith. In the face of this situation, there is no other course open to government than to regard the faiths of those who are equally its citizens as faiths equal in its eyes. Were it to do otherwise, it would instantly confuse religion with citizenship, bring religious consciences somehow under pressure, and thus violate the essential principle enshrined in the First Amendment.
Even so, “first freedom” in the postwar years was a phrase mostly resonant with a particular community rather than the universally accepted truism it has become. When Franklin Delano Roosevelt made his own list of freedoms that should be enjoyed everywhere in the world – in his famous “Four Freedoms Speech” delivered as the State of the Union address of 1941 – he counted “freedom of every person to worship God in his own way” second behind “freedom of speech and expression.”
There have been other contenders for the “first freedom” mantle as well. The title of the National Rifle Association’s monthly political magazine – America’s First Freedom – implies a provocative question: Where would the freedoms of press, speech, and religion be without the bearing of arms that made such freedoms possible? No less an N.R.A. spokesman than Charlton Heston made this point in an address to the National Press Club in 1997:
I believe every good journalist needs to know why the Second Amendment must be considered more essential than the First Amendment.
Later in his speech he explained that he was concerned not only with his own firearms, but with those of the future gun-owners of America:
It is time they found out that the politically correct doctrine of today has misled them. And that when they reach legal age, if they do not break our laws, they have a right to choose to own a gun — a handgun, a long gun, a small gun, a large gun, a black gun, a purple gun, a pretty gun, an ugly gun — and to use that gun to defend themselves and their loved ones or to engage in any lawful purpose they desire without apology or explanation to anyone, ever. This is their first freedom.
If even the man who played Moses counts our national commandments as he sees fit, is it any wonder that the “first freedom” remains a moving target? Religious liberty may currently be considered by many, including those aspiring to the highest office in the land, to be “our first and most cherished freedom,” but it’s worth remembering that calling anything “first” depends on where you start counting, and why.
As in the founding era, religious freedom today is anything but apolitical. Cardinal Dolan’s seemingly anodyne expression of ecumenism last week was actually a pointed reference to the United States Conference of Catholic Bishops’ “Statement on Religious Liberty” released in opposition to the Affordable Care Act’s H.H.S. mandate; it was in fact a slightly altered version of the statement’s title: “Our First, Most Cherished Liberty.” Though the cardinal played the part of avuncular bridge between the two candidates, his choice of words suggested he was not above taking sides. In an election year, it seems, freedom’s just another word for rallying the base.
Historically Corrected is a project of students and faculty at Washington College’s C.V. Starr Center for the Study of the American Experience where Peter Manseau is a scholar in residence. Students of Washington College’s Writing for Media seminar contributed research. To learn more about the Historically Corrected project, click here.