Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This amendment is a core issue of the hermeneutical prologue. It’s the core issue of this inventory. Christ’s demand to "render to Caesar the things that are Caesar’s and to God the things that are God’s" (Matthew 22:21) is paraphrased here as, "Congress [(meaning Caesar)] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Since this is a core issue of the hermeneutical prologue, we’ll not restate here everything that the global covenant says about freedom of religion. Since the freedoms of (a)speech, (b)press, (c)assembly, and (d)petition are all basic property rights under the global covenant, we’ll not pretend here that we haven’t already established the Biblically sound position on these four issues. We believe this quartet of constitutional rights is implicit in the Establishment and Free Exercise Clauses, and that if we comprehend these two clauses correctly, the other four issues rationally derive therefrom. So we’ll focus exclusively here on the Establishment and Free Exercise Clauses.
Prior to the War for Independence, each colony was unique with respect to religion. Some colonial governments established some specific religion as the State religion, and some colonies were more religiously tolerant and diverse. Quakers and Anabaptists were welcomed in Pennsylvania. Roman Catholics were welcomed in Maryland. Puritans and Pilgrims colonized Massachusetts, but Quakers were not welcomed there. 2 "Non-conformists" – people who did not conform to the State Church of England – colonized Pennsylvania, Maryland, and Massachusetts. In contrast, Virginia was settled primarily by conformists. The Anglican Church was the established church in Virginia, and maintenance of Virginia’s Anglican Church was enforced by Commonwealth police powers. 3 Virginia law prohibited Quakers from settling within Commonwealth territory. Its laws forced people to attend church regularly, made abandonment of the faith illegal, criminalized some types of irreverent language, forbade Roman Catholics from holding public office, and forced people to pay taxes to support the established church. Virginia’s Anglican priests were paid from the public coffers, and the colonial government regulated their teachings. 4
When the War for Independence arrived, much of this changed. For example, in 1776 the Virginia general assembly "repealed all laws penalizing heresy, apostasy, and nonconformity, then exempted all dissenters from payment of tithes in support of the established church". 5 Similar changes took place in other colonies. These were not changes that were prompted by some collective desire to eliminate religion or Christianity. These changes were prompted hugely by the recognition that there was an underlying set of principles that were common to the thirteen colonies. These principles were well expressed in the Declaration of Independence with the statement: "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. That, to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed.". 6 This is not a repudiation of the Creator. It is open acknowledgement of the attributes with which He created us. It is totally consistent with the global covenant. It’s also consistent with the Declaration’s intellectual predecessors: some advocates of natural law philosophy and of the compact theory of government in general. 7 This movement towards de-establishing State religions that was instigated in 1776 was a collective acknowledgement by the people of the thirteen colonies that they shared these fundamental God-based beliefs in common. This movement that was alive in 1776 that manifested as these words in the Declaration, was in some respects an establishment of a more fundamental religion, a religion that held these essential precepts as foundational. It was therefore the establishment of a secular religion, a religion that claimed to apply to all other religions. It was emphatically not the repudiation of all religions for the purpose of creating a secular society.
To see evidence that this is the case, consider two articles from the Virginia Bill of Rights of 1776: Article 1 — "That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."; Article 16 — "That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience, and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.". 8
Even though Virginia stopped compelling people to practice the Anglican religion, the Anglican Church continued to be officially the State’s church, evidenced by the fact that the Anglican Church was still regulated and funded by Virginia law. In 1784 someone introduced a bill in Virginia’s general assembly that would have made Christianity – without regard to denomination – the State’s religion. There was apparently a blizzard of petitions to the general assembly regarding this issue. Foremost among these petitions was a Remonstrance composed by James Madison. In reaction to Madison’s Remonstrance, the Virginia Statute of Religious Freedom was passed in 1786. Thomas Jefferson drafted it. This statute’s preamble says the following: 9
Almighty God hath made the mind free, and all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of hour religion, who, being Lord of both body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do . . .
The statute itself said the following:
Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
It’s extremely important to notice that the consensus among these framers was that such freedom of religion extended to "all men", not just to Christians, and not just to Christians and Jews. This secular religion that was being established in Virginia – and in the country generally in those days – was thus totally consistent with the global covenant. As long as they don’t commit bloodshed, this secular religion extends freedom of conscience even to atheists, anarchists, hermits, and people from every conceivable religion. 10
The man who had drafted the 16th Article of the Virginia Bill of Rights of 1776, and who greatly influenced the adoption of the Virginia Statute of Religion Freedom of 1786, was also the man who proposed the 1st Amendment to the united States Constitution. On August 15, 1789, James Madison offered the following as a potential amendment to the House of Representatives: "No religion shall be established by law, nor shall the equal rights of conscience be infringed.". 11 Congressman Benjamin Huntington stood to agree that such an amendment was valuable, but was concerned that "the words might be taken in such latitude as to be extremely hurtful to the cause of religion". Whatever words were used, Huntington wanted the amendment to be clear enough "to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all". 12 In other words, Huntington wanted the amendment to establish the secular religion, but not the secular lack of religion. 13 — In contrast to Benjamin Huntington, we believe that there is no such thing as "no religion at all". Even those who claim to have "no religion at all" are not utterly devoid of belief, unless they are psychotic or comatose. For anyone to claim they have no religion is essentially the same as claiming that they have no belief system. Without a belief system, people don’t even get up in the morning. They don’t eat, and if breathing were not a function of the autonomic nervous system, they wouldn’t breathe either. So everyone has a religion, even though their god may be little or nothing more than their next meal. So everyone worships God or some god or gods. Otherwise they cannot stay alive and sane at the same time. As long as one is alive, one has a religion, even if that religion violates the laws of nature in profound ways. — The issue that government needs to address is not whether someone professes a religion or not, but whether someone violates rights or not. The secular religion that the framers were in essence attempting to define is nothing more or less than the Bible’s global covenant. Under the global covenant, the only human law that secular social compacts need to be concerned about is that which makes bloodshed illicit. 14 Even if it wasn’t stated explicitly that this is what they were doing, it is intuitively obvious that this is what they were doing. In contrast to this claim, "Constitutional historians are nearly unanimous in their conclusion that the framers of the First Amendment intended to codify the English common law as taught by Sir William Blackstone". 15 Blackstone’s Commentaries are certainly not a perfect exposition of the global covenant, but they are much closer to it than American laws in the early 21st century. During the founding era, those commentaries were the best approximation to the global covenant that the founders had readily available. Nevertheless, giving due consideration to the fact that the majority of the framers were worthy Bible students makes it obvious that they were reaching for something beyond Blackstone’s Commentaries. It’s obvious from the perspective of the hermeneutical prologue that they were reaching for the secular religion.
Given the manner in which the Establishment and Free Exercise Clauses have been misconstrued since the ratification of the 1st Amendment, Congressman Huntington’s fears about misconstruction were well founded. — "The Framers of the Religion Clauses held that there is a duty to God, which is the core of religion, and that this ultimately reduces to the dictates of conscience. . . . In the eyes of fundamental law as framed in the First Congress, every individual has a duty to God, even if he rejects all traces of metaphysical thinking about a supreme being, and this duty to God is finally rooted in that sense of right and wrong, that awareness of natural law, which, as great thinkers have always maintained, is an objective truth written and waiting to be found in all human hearts, and is common to all nations on the Earth." 16 — So on one hand, the framers were making a sincere and worthy attempt at establishing this secular religion without violating rights. But on the other, they – and their successors in government – lacked rigorous definitions of bloodshed, jural societies, ecclesiastical societies, etc., and such lack led them by a short path to misconstruction of both the global covenant – the secular religion – and the 1st Amendment.
The most significant area in which the general government quickly deviated into misconstruction of the Establishment and Free Exercise Clauses pertained to education. When the First Congress reenacted the Northwest Ordinance, 17 the ordinance contained the following provision: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.". The general assembly of the Northwest Territory was encouraged by Congress to establish publicly funded schools. Such publicly funded schools were intended to teach not only reading, writing, and arithmetic, but also religion and morality. As a matter of fact, it was assumed by most of the framers that substantial education in religion and morality was essential to the maintenance of a healthy society. No doubt this is true. But they also generally believed that money collected through confiscatory taxation by secular governments should pay for such public schools. 18 — If it’s not already obvious why publicly funded education is a huge problem, it should become radiantly clear before we finish examining the 1st Amendment. 19
It’s fair to say that during the founding years of this republic, the following was generally accepted as true:
The First Amendment has a dual aspect. It not only ‘forestalls compulsion by law of the acceptance of any creed . . . ’ but also ‘safeguards the free exercise of the chosen form of religion.’ Cantwell v. State of Connecticut, 310 U.S. 296, 303, . . . ‘Thus the Amendment embraces two concepts,‑freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.’ Id., 310 U.S. at pages 303, 304 . . . 20
This claim that the 1st Amendment "embraces two concepts,‑freedom to believe and freedom to act", and "the first is absolute but, . . . the second cannot be", comes from 1940s cases. 21 Even so, it’s reasonable to believe, based on the ample evidence, that the framers believed this claim to be valid. But it’s also clear, based on the ample evidence, that the framers lacked the jurisprudential equipment necessary to delineate the acceptable boundaries of the "freedom to act". To their credit, they believed the following:
Freedom of thought . . . embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. . . . Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. . . . The Fathers of the Constitution . . . fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. 22
To their discredit, they failed to articulate the lawful subject matter jurisdiction of their new secular government. They may have genuinely believed that "The First Amendment does not select any one group or any one type of religion for preferred treatment." 23. But their actions, and the actions of their descendants, make it clear that they lacked the conceptual tools to make such belief fully functional.