14 Free Exercise before the Warren Court

Religious Freedom at the Founding

While early colonial America was not a particularly tolerant place, political elites increasingly supported religious tolerance in the years leading up to independence. This shift had both principled and pragmatic components. Freedom of conscience and thought increasingly became viewed as both natural and fundamental rights, beyond the proper scope of what government should regulate. Religious tolerance was also seen as a political necessity. In contrast to most societies of the time, the British Colonies were marked by a high degree of religious pluralism, containing a number of different Protestant denominations as well as Jews and Roman Catholics. Without tolerance, religious sects might engage in cycles of persecution, endangering political stability. The framers well knew that religious discord could lead to the worst sort of violence and civil war. As religious diversity made a national religion impossible, tolerance seemed the best alternative.

Perhaps the most influential statement of religious tolerance at the time—both in its goals and justifications as well as its scope—had been written a century earlier by John Locke, the influential British philosopher. Locke’s arguments below—controversial when authored—today mark the uncontroversial core of the Free Exercise clause—that government may not censor religious thought, nor act with hostility towards disfavored faiths.

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John Locke, Selections from “A Letter Concerning Toleration”

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1685

… since you are pleased to inquire what are my thoughts about the mutual toleration of Christians in their different professions of religion, I must needs answer you freely, that I esteem that toleration to be the chief characteristical mark of the true church…

… If the gospel and the apostles may be credited, no man can be a christian without charity, and without that faith which works, not by force, but by love. Now I appeal to the consciences of those that persecute, torment, destroy, and kill other men upon pretence of religion, whether they do it out of friendship and kindness towards them … when I shall see those fiery zealots … express their love and desire of the salvation of their souls, by the infliction of torments, and exercise of all manner of cruelties. For if it be out of a principle of charity, as they pretend, and love to men’s souls, that they deprive them of their estates, maim them with corporal punishments, starve and torment them in noisome prisons, and in the end even take away their lives; I say, if all this be done merely to make men christians, and procure their salvation, why then do they suffer “whoredom, fraud, malice, and such like enormities,” which, according to the apostle, manifestly relish of heathenish corruption, to predominate so much and abound amongst their flocks and people? … Why then does this burning zeal for God, for the church, and for the salvation of souls; burning, I say literally, with fire and faggot; pass by those moral vices and wickednesses, without any chastisement, which are acknowledged by all men to be diametrically opposite to the profession of Christianity …

That any man should think fit to cause another man, whose salvation he heartily desires, to expire in torments, and that even in an unconverted state, would, I confess, seem very strange to me, and, I think, to any other also… If, like the captain of our salvation, they sincerely desired the good of souls, they would tread in the steps and follow the perfect example of that prince of peace, who sent out his soldiers to the subduing of nations, and gathering them into his church, not armed with the sword, or other instruments of force, but prepared with the gospel of peace, and with the exemplary holiness of their conversation…

The toleration of those that differ from others in matters of religion, is so agreeable to the gospel of Jesus Christ, and to the genuine reason of mankind, that it seems monstrous for men to be so blind, as not to perceive the necessity and advantage of it, in so clear a light…

… I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have, or at least pretend to have, on the one side, a concernment for the interest of men’s souls, and, on the other side, a care of the commonwealth.

The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests. Civil interest I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.

It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all the people in general, and to every one of his subjects in particular, the just possession of these things belonging to this life…

Now that the whole jurisdiction of the magistrate reaches only to these civil concernments; and that all civil power, right, and dominion, is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls; these following considerations seem unto me abundantly to demonstrate.

First, Because the care of souls is not committed to the civil magistrate, any more than to other men. It is not committed unto him, I say, by God; because it appears not that God has ever given any such authority to one man over another, as to compel any one to his religion… All the life and power of true religion consists in the inward and full persuasion of the mind; and faith is not faith, without believing. Whatever profession we make, to whatever outward worship we conform, if we are not fully satisfied in our own mind that the one is true, and the other well-pleasing unto God, such profession and such practice, far from being any furtherance, are indeed great obstacles to our salvation…

In the second place, The care of souls cannot belong to the civil magistrate, because his power consists only in outward force: but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of any thing by outward force… Every man has commission to admonish, exhort, convince another of errour, and by reasoning to draw him into truth: but to give laws, receive obedience, and compel with the sword, belongs to none but the magistrate. And upon this ground I affirm, that the magistrate’s power extends not to the establishing of any article of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties, and penalties in this case are absolutely impertinent; because they are not proper to convince the mind…

Let us now consider what a church is. A church then I take to be a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God, in such a manner as they judge acceptable to him, and effectual to the salvation of their souls. I say, it is a free and voluntary society. Nobody is born a member of any church … No man by nature is bound unto any particular church or sect, but every one joins himself voluntarily to that society in which he believes he has found that profession and worship which is truly acceptable to God… A church then is a society of members voluntarily uniting to this end.

It follows now that we consider what is the power of this church, and unto what laws it is subject… But since the joining together of several members into this church-society, as has already been demonstrated, is absolutely free and spontaneous, it necessarily follows, that the right of making its laws can belong to none but the society itself…

The end of a religious society, as has already been said, is the public worship of God, and by means thereof the acquisition of eternal life. All discipline ought therefore to tend to that end, and all ecclesiastical laws to be thereunto confined. Nothing ought, nor can be transacted in this society, relating to the possession of civil and worldly goods. No force is here to be made use of, upon any occasion whatsoever: for force belongs wholly to the civil magistrate, and the possession of all outward goods is subject to his jurisdiction.

… The arms by which the members of this society are to be kept within their duty, are exhortations, admonitions, and advice. If by these means the offenders will not be reclaimed, and the erroneous convinced, there remains nothing farther to be done, but that such stubborn and obstinate persons, who give no ground to hope for their reformation, should be cast out and separated from the society. This is the last and utmost force of ecclesiastical authority: no other punishment can thereby be inflicted, than that the relation ceasing between the body and the member which is cut off, the person so condemned ceases to be a part of that church.

These things being thus determined, let us inquire in the next place, how far the duty of Toleration extends, and what is required from every one by it.

And first, I hold, that no church is bound by the duty of Toleration to retain any such person in her bosom, as after admonition continues obstinately to offend against the laws of the society…

Secondly: no private person has any right in any manner to prejudice another person in his civil enjoyments, because he is of another church or religion. All the rights and franchises that belong to him as a man, or as a denison, are inviolably to be preserved to him. These are not the business of religion. No violence nor injury is to be offered him, whether he be christian or pagan. Nay, we must not content ourselves with the narrow measures of bare justice: charity, bounty, and liberality must be added to it. This the Gospel enjoins, this reason directs, and this that natural fellowship we are born into requires of us. If any man err from the right way, it is his own misfortune, no injury to thee: nor therefore art thou to punish him in the things of this life, because thou supposest he will be miserable in that which is to come.

What I say concerning the mutual toleration of private persons differing from one another in religion, I understand also of particular churches; which stand as it were in the same relation to each other as private persons among themselves; nor has any one of them any manner of jurisdiction over any other, no not even when the civil magistrate, as it sometimes happens, comes to be of this or the other communion…

In the third place: Let us see what the duty of toleration requires from those who are distinguished from the rest of mankind, from the laity, as they please to call us, by some ecclesiastical character and office; whether they be bishops, priests, presbyters, ministers, or however else dignified or distinguished… whencesoever their authority be sprung, since it is ecclesiastical, it ought to be confined within the bounds of the church, nor can it in any manner be extended to civil affairs; because the church itself is a thing absolutely separate and distinct from the commonwealth…

We have already proved that the care of souls does not belong to the magistrate: not a magisterial care, I mean, if I may so call it, which consists in prescribing by laws, and compelling by punishments. But a charitable care, which consists in teaching, admonishing, and persuading, cannot be denied unto any man. The care therefore of every man’s soul belongs unto himself, and is to be left unto himself. But what if he neglect the care of his soul? I answer, what if he neglect the care of his health, or of his estate; which things are nearlier related to the government of the magistrate than the other? Will the magistrate provide by an express law, that such an one shall not become poor or sick? Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud or violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves. No man can be forced to be rich or healthful, whether he will or no…

But after all, the principal consideration, and which absolutely determines this controversy, is this: Although the magistrate’s opinion in religion be sound, and the way that he appoints be truly evangelical, yet if I be not thoroughly persuaded thereof in my own mind, there will be no safety for me in following it. No way whatsoever that I shall walk in against the dictates of my conscience, will ever bring me to the mansions of the blessed. I may grow rich by an art that I take not delight in; I may be cured of some disease by remedies that I have not faith in; but I cannot be saved by a religion that I distrust, and by a worship that I abhor…

Having thus at length freed men from all dominion over one another in matters of religion, let us now consider what they are to do. All men know and acknowledge that God ought to be publicly worshipped. Why otherwise do they compel one another unto the public assemblies? Men therefore constituted in this liberty are to enter into some religious society, that they may meet together, not only for mutual edification, but to own to the world that they worship God, and offer unto his divine majesty such service as they themselves are not ashamed of … These religious societies I call churches: and these I say the magistrate ought to tolerate. For the business of these assemblies of the people is nothing but what is lawful for every man in particular to take care of; I mean the salvation of their souls: nor in this case is there any difference between the national church, and other separated congregations.

But as in every church there are two things especially to be considered; the outward form and rites of worship, and the doctrines and articles of faith; these things must be handled each distinctly, that so the whole matter of toleration may the more clearly be understood. Concerning outward worship, I say, in the first place, that the magistrate has no power to enforce by law either in his own church, or much less in another, the use of any rites or ceremonies whatsoever in the worship of God… To impose such things therefore upon any people, contrary to their own judgment, is in effect to command them to offend God; which, considering that the end of all religion is to please him, and that liberty is essentially necessary to that end, appears to be absurd beyond expression…

In the next place: As the magistrate has no power to impose by his laws the use of any rites and ceremonies in any church, so neither has he any power to forbid the use of such rites and ceremonies as are already received, approved, and practised by any church: because if he did so, he would destroy the church itself; the end of whose institution is only to worship God with freedom, after its own manner.

You will say, by this rule, if some congregations should have a mind to sacrifice infants, or, as the primitive christians were falsely accused, lustfully pollute themselves in promiscuous uncleanness, or practise any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer, No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. But indeed if any people congregated upon account of religion, should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law… whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man’s goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God or no, it is their part to consider that do it.—The part of the magistrate is only to take care that the commonwealth receive no prejudice, and that there be no injury done to any man either in life or estate. And thus what may be spent on a feast may be spent on a sacrifice…

By this we see what difference there is between the church and the commonwealth. Whatsoever is lawful in the commonwealth, cannot be prohibited by the magistrate in the church. Whatsoever is permitted unto any of his subjects for their ordinary use, neither can nor ought to be forbidden by him to any sect of people for their religious uses. If any man may lawfully take bread or wine, either sitting or kneeling, in his own house, the law ought not to abridge him of the same liberty in his religious worship; though in the church the use of bread and wine be very different, and be there applied to the mysteries of faith, and rites of divine worship. But those things that are prejudicial to the commonwealth of a people in their ordinary use, and are therefore forbidden by laws, those things ought not to be permitted to churches in their sacred rites. Only the magistrate ought always to be very careful that he do not misuse his authority, to the oppression of any church under pretence of public good…

Further, The magistrate ought not to forbid the preaching or professing of any speculative opinions in any church, because they have no manner of relation to the civil rights of the subjects. If a roman catholic believe that to be really the body of Christ, which another man calls bread, he does no injury thereby to his neighbour. If a jew does not believe the New Testament to be the word of God, he does not thereby alter any thing in men’s civil rights. If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen. The power of the magistrate, and the estates of the people, may be equally secure, whether any man believe these things or no. I readily grant, that these opinions are false and absurd. But the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth, and of every particular man’s goods and person…

But some may ask, “What if the magistrate should enjoin any thing by his authority, that appears unlawful to the conscience of a private person?” I answer, that if government be faithfully administered, and the counsels of the magistrate be indeed directed to the public good, this will seldom happen. But if perhaps it do so fall out, I say, that such a private person is to abstain from the actions that he judges unlawful; and he is to undergo the punishment, which is not unlawful for him to bear; for the private judgment of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor deserve a dispensation…

But to come to particulars. I say, First, No opinions contrary to human society, or to those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate. But of those indeed examples in any church are rare. For no sect can easily arrive to such a degree of madness, as that it should think fit to teach, for doctrines of religion, such things as manifestly undermine the foundations of society, and are therefore condemned by the judgment of all mankind: because their own interest, peace, reputation, every thing would be thereby endangered…

Lastly, Those are not at all to be tolerated who deny the being of God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all. Besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration. As for other practical opinions, though not absolutely free from all errour, yet if they do not tend to establish domination over others, or civil impunity to the church in which they are taught, there can be no reason why they should not be tolerated…

… You will say, that “assemblies and meetings endanger the public peace, and threaten the commonwealth.” I answer: if this be so, why are there daily such numerous meetings in markets, and courts of judicature? Why are crowds upon the Exchange, and a concourse of people in cities suffered? You will reply; these are civil assemblies, but those we object against are ecclesiastical. I answer: it is a likely thing indeed, that such assemblies as are altogether remote from civil affairs, should be most apt to embroil them… Again; you will say, that religious communion does exceedingly unite men’s minds and affections to one another, and is therefore the more dangerous. But if this be so, why is not the magistrate afraid of his own church; and why does he not forbid their assemblies, as things dangerous to his government? You will say, because he himself is a part, and even the head of them. As if he were not also a part of the commonwealth, and the head of the whole people.

Let us therefore deal plainly. The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other. These he treats like children, and indulges them even to wantonness. Those he uses as slaves; and how blamelessly soever they demean themselves, recompences them no otherwise than by gallies, prisons, confiscations, and death. These he cherishes and defends: those he continually scourges and oppresses. Let him turn the tables: or let those dissenters enjoy but the same privileges in civils as his other subjects, and he will quickly find that these religious meetings will be no longer dangerous…

That we may draw towards a conclusion. “The sum of all we drive at is, that every man enjoy the same rights that are granted to others.” Is it permitted to worship God in the Roman manner? Let it be permitted to do it in the Geneva form also. Is it permitted to speak Latin in the market place? Let those that have a mind to it, be permitted to do it also in the church. Is it lawful for any man in his own house to kneel, stand, sit, or use any other posture; and cloath himself in white or black, in short, or in long garments? Let it not be made unlawful to eat himself in white or black, in short, or in long garments? Let it not be made unlawful to eat bread, drink wine, or wash with water in the church. In a word: whatsoever things are left free by law in the common occasions of life, let them remain free unto every church in divine worship. Let no man’s life, or body, or house, or estate, suffer any manner of prejudice upon these accounts…

Locke’s letter can be seen as an endorsement both of religious freedom and some degree of separation between church and state, arguing, for example, that religion and politics have different ends. Though not always honored in practice, the principle that it is not the government’s role to dictate proper religious belief or custom remains a core of Free Exercise jurisprudence. Instead, the government should regulate its proper (secular) ends, such as safety, health, and welfare, and do so without purposefully discriminating against particular faiths.