“Religious liberty is not something you get from the First Amendment; it is something this country recognizes people have by birthright.”
— Charles C. Haynes

In order to grasp the meaning of the First Amendment, it is important to understand the logic and philosophy behind it.

Embedded in the First Amendment's guarantee of religious liberty are fundamental values and rights that are considered universal and “inalienable.”

“Most people forget or never understood that religious liberty is not something you get from the First Amendment; it is something this country recognizes people have by birthright,” said Charles C. Haynes, senior scholar at the First Amendment Center.

In other words, religious liberty is not the result of a governmental action creating it, tolerating it or “allowing it”; but religious liberty is a pre-existing human right that should be free from government intrusion. In terminology of formal logic, religious liberty is a necessary condition that stands on its own, and governmental action is not sufficient to make it exist. The government's primary role is to ensure that this basic right is not infringed.

In the lead-up to the drafting of the Bill of Rights, James Madison discussed the rationale behind religious liberty in his landmark “Memorial and Remonstrance Against Religious Assessments” (1785). In his analysis, Madison places the civil society and the church into two separate realms: “In matters of religion, no man's right is abridged by the institution of Civil Society, and that religion is wholly exempt from its cognizance.”

Therefore, by extension, civil governments should not intrude in matters “respecting” religion, and vice versa: “Because religion be exempt from the authority of the society at large, still less can it be subject to that of the legislative body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents,” Madison wrote.

Recognizing the right of conscience

“The framers thought we should take these claims seriously precisely because they believed freedom of conscience is an inalienable right.”
— Charles C. Haynes

Underlying religious liberty is the right of conscience. In Memorial and Remonstrance, Madison cited the right of conscience as a fundamental value behind the right of religious liberty:

“The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right,” Madison wrote.

Later, in the drafting of the Bill of Rights, Madison attempted to include the word “conscience” in the First Amendment. His original draft read as follows:

“The civil rights 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.”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”
— First Amendment religious liberty clauses

In the course of revising the Amendment, the Senate dropped any mention of conscience, most likely, because “conscience” was too broad a concept to codify. With no record of the Senate debates, the exact reason for the wording changes is unknown. Nonetheless, freedom of conscience is still recognized as an important concept behind religious liberty.

“As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual’s freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience,” Supreme Court Justice John Paul Stevens wrote in Wallace v. Jaffree (1985).

Respecting the right of conscience

“Many of the Framers believed there was a higher authority in their lives than the state; and the state's role is to protect the rights of individuals to follow the dictates of their conscience as far as possible. ... This may be the greatest contribution the United States has made to civilization.”
— Charles Haynes

Issues of conscience are behind many claims and conflicts involving religion. For example, Haynes cited school dress codes prohibiting head covering or hoods might be interpreted overbroadly to prohibit religious head covering.

“What does the school do about the Orthodox Jewish child or the Muslim girl – members of religious groups that require head cover?” Haynes posited. “Who would say, ‘I'm sorry, you have to take it off. Choose between the obligation to your God or the state?’”

Conscious objection to war is another instance of the same concept playing out in a different way. For example, Quakers and members of other “peace churches” may refuse to register for the draft because their religion opposes war. As Haynes explained, “It's not because they don't want to put on a uniform or they want to be annoying, but God forbids them to go to war. What is the higher authority – the United States or God?”

In all such cases, regardless of the outcome, claims of conscience are taken seriously in this country. “The framers thought we should take these claims seriously precisely because they believed freedom of conscience is an inalienable right,” Haynes said.

Respecting ‘Free exercise’

‘Hobson’s choice’ ruled out

Decided in 1963, the case of Sherbert v. Verner involved a Seventh Day Adventist who was denied unemployment benefits because she refused to work on Saturday – recognized as the Sabbath by Jews and Adventists.
The Supreme Court ruled that the state could not put one of its citizens to the cruel choice of having to give up either her government benefits or her religious convictions.

“Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship,” Justice William Brennan wrote in the majority opinion.

The Court also applied a standard of “compelling state interest,” whereby the state would have prevailed if its case met “an interest of the highest order” and involved paramount concerns for public health and safety. But the Court determined that there was no compelling state interest in the South Carolina statute that justified “the substantial infringement of appellant's right to religious freedom under the First Amendment.”

Just say ‘No’ to peyote

Decided in 1990, Employment Division v. Smith involved two Native Americans who were denied unemployment benefits because of their use of peyote in a ceremonial ritual. The court upheld the state law prohibiting peyote use for whatever purpose – religious or otherwise. The court said the state law would only be unconstitutional if it sought to ban peyote use solely on the basis of religious motivation.

Haynes said this case rolled back some of the rights established in Sherbert: “After Smith, it will be a tough day in court for people of any religious stripe to win on free exercise claims, such as the right of a family member to refuse an autopsy on religious grounds,” Haynes said.

Haynes said the case did not stir up much controversy among the public and the media because most people viewed it as a case of Native Americans using drugs rather than an issue of religious conscience.

A jealously guarded power

In response to Smith, Congress passed the Religious Freedom Restoration Act in 1993. But in 1997, the Supreme Court struck down the act in City of Boerne v. Flores. In that case, the Court ruled that Congress had overstepped its bounds by mandating that states provide more protection of religious liberty than the First Amendment itself.

By attempting to force states and local governments to prove their “compelling interest” in any law that might “substantially burden” free exercise of religion, the Court said Congress was actually changing the meaning of the First Amendment by adding additional conditions upon which “free exercise” is judged. In so doing, Congress stepped on the judiciary’s toes by attempting to dictate the means by which the Free Exercise Clause is interpreted, something the Supreme Court guards for itself.