Religious Liberty as Stated in the First Amendment
The practical and legal ramifications of religious liberty are not difficult to determine, for they follow from the theological implications of the concept of religious liberty. The idea of religious truth, such as defined by the North Carolina state government in 1776 which forbade anyone from serving who denied the truth of the Protestant religion, has no place in a country that holds religious liberty as law. Yet, religious liberty has not always been practiced, as North Carolina and Maryland (which was officially declared an Anglican state in 1692) both show. Today, the first amendment has been ratified to make such claims untenable. Nonetheless, many scholars question whether religious liberty itself is defensible. By acknowledging the right of religions to be exercised publicly, the U.S. constitution sets the stage for a massive fight between various and contending religious beliefs, which can readily be seen today. Liberty reduces the objective nature of religion to the level of subjectivity, which makes an objective standard for what religious cults may or may not do difficult to determine. This paper will examine the limits of religious liberty by looking at the various interpretations of the "free exercise" clause of the First Amendment, from a historical, practical, and legal standpoint.
When Westboro Baptist Church of Topeka, Kansas decided to protest the homosexuality of fallen Marine Matthew Snyder outside his funeral in 2006, it touched off a media firestorm that eventually saw the case of "free exercise" go all the way to the Supreme Court. The Supreme Court ruling given in response to the protest states that "hurtful speech" is protected by the First Amendment. However, not everyone on the bench agreed with the ruling. Justice Samuel Alito gave the dissenting opinion that the First Amendment does not have to tolerate a "vicious verbal assault" (AP, 2011). But despite Alito's words, the fact remains that the First Amendment does have to tolerate it. This was, after all, not a case of religious tolerance -- it was a case of religious liberty. Tolerance implies that an objective standard exists, and that the State will tolerate, up to a point, behavior that does not measure up to that standard. Liberty implies that there exists no standard whatsoever. If no standard exists, Westboro Baptist has every right to do what it did -- even if others are offended -- which is what the Supreme Court essentially stated. Yet, common sense suggests that something is wrong somewhere. And that something has a lot to do with Westboro Baptist, which is, in a sense, what is at the heart of what makes religious liberty such a problematic right: in fact, the legal system of the U.S. upholds the amendment that allows such a problem to persist, despite its uncomfortable ramifications.
The concept of religious liberty essentially grew out of the Peace of Westphalia nearly four hundred years ago in war-ravaged Europe. The Peace offered, in a sense, a diplomatic truce to the fighting sects of Protestantism and Catholicism and the monarchs whose states they inhabited. The one-time official religion of Christendom was now displaced and the Holy Roman Empire was virtually shattered. While Catholicism, Lutheranism, and Calvinism were now to be officially recognized as individual governments saw fit, the Peace was a signal defeat for Catholics and a victory for Protestants. Yet, the Peace only guaranteed religious toleration. It did not establish religious liberty -- not wholly. Religious liberty, however, grew out of the concept that Church and State were to be separate, which the Peace of Westphalia essentially upheld when it was signed without the approval of the Papal Office.
The Peace of Westphalia legitimized the Protestant ethos (politically), and effectively diminished the reign over public interest that the Roman Catholic Church had held throughout the Medieval Age. It also ushered in an era of philosophical inquiry that departed significantly from the orthodoxy of scholasticism found in Thomistic philosophy. What the Peace offered politically was a new model of government that would take hold around the world and continue into our own day. John Elliott notes that Voltaire described the celebrated peace of Westphalia which ended the Thirty Years War as having become 'the basis for all future treaties.' In other words, it marked the beginning of a new international order in which the European state system was henceforth to be regulated on the basis of a set of political arrangements made in the middle years of the seventeenth century and agreed by the leading European powers. (Elliott, 2009, p. 92)
Pope Innocent X lamented these "realities," of course -- for they subverted the truths which the Roman Church strove to propagate -- namely that it was the only one, true religion. By not seeking pontifical approval, the signees of the Peace were resolved to set their differences aside -- differences that, in the eyes of the Pontiff, were not matters over which secular rulers should be acting as absolute judge. Essentially, the Pontiff saw the Peace as a ticking time-bomb that would erupt in the coming era of religious liberty.
Religious liberty not only gives every individual the right to believe as he/she sees fit (regardless of natural law), it also gives every religion the right to declare itself as true. By upholding no religion as true, it virtually upholds all religions as true, and sets the stage for titanic clashes like the one seen in Waco, TX, when the Branch Davidians faced down the FTA in 1993, an incident that resulted in the death of 76 men, women, and children who lived on the Branch Davidian compound. The violent suppression of the sect might never have been necessary had the sect never had the right to form in the first place. But refusing that right would have violated the First Amendment. Thus, the conundrum is written into the Constitution, and interpreting it has become an exercise that mirrors a kind of judgment once reserved for the Holy See.
As far as Waco is concerned, the federal government clearly saw the sect led by David Koresh as a demarcation from religious activity and the beginning of criminal activity (occasioned by the alleged possession of illegal weapons). Obviously, what the federal government stated in 1993 is that when religious liberty threatens national security, its right is denied.
But such an assurance is hardly satisfying, for it leaves unanswered the question of religion itself. If, as Aristotle claims, a government is modeled on the most basic family unit, which in turn consists of individuals who must determine the truth or worth of religion for themselves, why should that truth or worth be limited to the family context and not extend to the fullest national context, ultimately embracing the governing body? Yet, the First Amendment contradicts such an idea by separating Church and State and making religion a personal affair that should (ideally) remain separate from "politics." Is this the case? It is not, as politicians like Sarah Palin make very clear: they see no reason to separate their religious views from their political views. As shocking as it may seem, such reasoning is actually logical -- for in reality there can be no separation between Church and State. Logically speaking, whoever runs the State will run it according to the views (religious or irreligious) from which it draws its perspective. The perspective of America is not one of religious tolerance (upholding one religion as supreme). Its perspective is one of religious liberty (which upholds none, yet often steps in to protect itself against what it deems threatening).
Such a perspective was set in 1683 when the Catholic Governor of New York Thomas Dongan enacted the first law establishing religious liberty in America. As has been stated, it was a perspective which grew out of the Peace of Westphalia. The philosophies that it engendered ranged from that of Immanuel Kant to Jean-Jacques Rousseau to Voltaire and the Marquis de Sade, all of whom took their philosophical underpinnings from the acknowledgement afforded by the Peace of Westphalia that religious liberty was a natural condition of societal concord. What religious liberty actually engendered, however, was the dichotomous nature of the modern era -- the era which would assert that there was no truth, and that that was the truth. Subjectivity would reign and has reigned (philosophically) right into our own time, finding its ultimate expression in the First Amendment of the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." This subjectivity even received the approbation of the very objective Alexis de Tocqueville (1838), who came to America to see first-hand its democratic process:
Upon my arrival in the United States, the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more did I perceive the great political consequences resulting from this state of things, to which I was…