In colonial Virginia, colonists were required to pay taxes to the Church of England — even if they disagreed with or opposed the church’s teachings. Shortly after the Commonwealth of Virginia was established, Thomas Jefferson drafted the Virginia Statute for Religious Freedom, and nearly a decade later on January 16, 1786, James Madison engineered its passage in the state’s general assembly. Today, we celebrate National Religious Freedom Day to commemorate this historic and consequential act.
As the father of the Constitution, James Madison fought tirelessly to ensure each individual’s right to religious freedom. An early draft of the Virginia state constitution stated, “All men should enjoy the fullest toleration in the exercise of religion.” Madison opposed this wording and fought successfully to replace “toleration in the exercise” with “free exercise.” While this difference in language may seem insignificant to most of us, Madison recognized the underlying implications. “Toleration” implied that the exercise of religion was a right granted by government, while “free exercise” recognized that such a right came from a higher power — and is therefore inalienable.
Our fourth president made sure to protect not only our freedom of religion, but also our freedom of conscience. Madison noted, “The Religion then 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.” Furthermore, such “free exercise” meant more than expressing one’s beliefs in private — Madison fought for the right of everyone to have the “freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin.”
While we celebrate our nation’s great legacy, let’s take a score card of the past year. The same inalienable rights that were threatened in colonial Virginia are being trampled upon by our federal government today. Take, for instance, the HHS mandate. The mandate, which requires employers and institutions to pay for drugs and services in violation of their consciences, is nothing short of what Jefferson warned as “an infringement of natural right.” It is precisely what the statute we are commemorating today sought to protect us from more than two centuries ago.
President Obama issued a Religious Freedom Day proclamation this morning, but unfortunately it makes no mention of the HHS mandate. In the first paragraph of his proclamation, the president uses the phrase “freedom of worship,” which may explain the inconsistency between his words and policies — our inalienable right to religious freedom extends far beyond weekly worship services. No wonder there are currently dozens of lawsuits filed on behalf of both for-profits and non-profits.
Despite this setback, the courts have granted some significant victories this past year protecting our inalienable right to free exercise of religion. In Illinois, a pharmacy’s right to refuse to provide abortifacient drugs violating the owner’s conscience was upheld. A similar case in Washington also received a favorable ruling. In Texas, a Jewish prisoner who was being denied kosher food won his case. In Tennessee, a federal judge upheld the right of a Muslim group to construct an Islamic center. In the education realm, the right of students enrolled in public schools to take off-campus religious instruction courses for elective credits was upheld. And, in Massachusetts, a court upheld the constitutionality of including the words “under God” in the Pledge of Allegiance once again. Last, and certainly not least, The Becket Fund scored a landmark victory in Hosanna-Tabor, with the Supreme Court ruling 9-0 that religious organizations have the right to select their own ministers.
In all of these cases — and the broader struggle for religious freedom — people of various religions united to defend religious liberty for all, despite obvious theological differences. Madison recognized the importance of such unity and argued, “We cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.” The free exercise clause was brilliantly designed to offer equal protection to believers, non-believers, and everyone in between. While Madison would be disappointed at the present government intrusion on religious liberty, he would undoubtedly be proud of those standing firm for religious liberty for all.
While we celebrate our freedom on this day, we honor our fourth president by carrying on his legacy of protecting religious liberty — for people of all faiths, and for future generations. Significantly, Stanford Law School launched the nation’s first law school clinic dedicated exclusively to religious liberty issues on Monday. This clinic, which was made possible in part through the work of The Becket Fund, will give students firsthand experience defending religious liberty.
Madison once said, “Conscience is the most sacred of all property.” On this National Religious Freedom Day, let us not merely celebrate our first freedom, but equally important, let us continue to stand firm for this inalienable right.
Kristina Arriaga is the executive director of The Becket Fund for Religious Liberty.