Religion, Liberty, And The First Amendment

What happens when a republic that relies on moral character also forbids any national church? We dig into the founding design for religious liberty, starting with the First Amendment’s twin protections—no establishment and free exercise—and the earlier Article VI commitments to oaths or affirmations and a flat ban on religious tests. By reading the text aloud and then setting it against the historical record, we show how the framers treated faith as a civic good while refusing to let the federal government command belief.

We walk through the Declaration’s appeals to a higher source of rights and George Washington’s Farewell Address, where religion and morality are called “indispensable supports” of political prosperity. From inaugural practices and “so help me God” to Washington’s letters promising “to bigotry no sanction, to persecution no assistance,” the early republic paired esteem for faith with equal citizenship for every creed. We contrast Jefferson’s “wall of separation” with Tocqueville’s observation that Americans separated institutions without severing religion from civic life, and we use public customs like Thanksgiving proclamations to illustrate acknowledgment without establishment.

Finally, we fast-forward to the Fourteenth Amendment and incorporation, where state policies on schools, welfare, and public life meet the religion clauses in court. The terrain is messier now, but the compass still points to the same balance: protect free exercise, avoid coercion and favoritism, and don’t let neutrality become hostility. If you‘re curious about how the founders’ framework guides today’s hardest questions—and what’s coming next in our deep dives on free exercise and establishment—hit play, subscribe, and tell us where you see the line between respect and rule.

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Chapters

• 0:00 Setting The Stage: Religion Clauses
• 2:33 Reading The First Amendment
• 3:31 Article VI And No Religious Tests
• 6:48 Are The Clauses In Tension?
• 11:31 Federal Powers vs State Police Powers
• 13:08 The Founding’s Paradox Of Religion
• 14:41 Declaration References To Divinity
• 16:06 Washington’s Farewell On Religion And Morality
• 18:56 Oaths, “So Help Me God,” And Practice
• 21:11 Liberty For All Faiths: Washington’s Letters
• 23:01 Jefferson’s Wall And Tocqueville’s Insight

Transcript

SPEAKER_00: 0:48

Welcome back to Civics in a year. Today, Dr. Paul Careese is going to talk with us about some clauses in the First Amendment, specifically the freedom of religion, the freedom of exercise, kind of giving us a broad overview, and then we're going to go deeply into the establishment of religion as well as the free exercise in subsequent podcast episodes. So, Dr. Caris, what is the freedom of religion? And how do the establishment clause and the free exercise clause work? Because they seem to be in contradiction to each other.

SPEAKER_02: 1:27

Well, thank you, Liz. Another very important question. And as usual, I'm going to ask us to start with the text of the First Amendment. So if you would read at least the first few clauses in the First Amendment, and then I'll try and talk about what we learn about freedom of religion.

SPEAKER_00: 1:46

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 of the right of the people to peaceably assemble and to petition the government for a redress of grievances?

SPEAKER_02: 2:05

Okay, great. And for our topic, just notice that the two clauses about religion are first before we get to obviously very important topics of freedom of speech and freedom of press. So let's start there. Why would freedom of religion be the first two topics for liberty protected in the in the Bill of Rights and the First Amendment? Well, one important thing to notice is that freedom of religion was already protected in the 1787 Constitution, before amendment, in Article VI. So better have your pocket constitutions out, folks. So at the end of Article VI, it talks about the third clause of Article VI talks about the fact that all people who hold offices under the federal government and in the state legislatures and all federal and all judges, federal and state, will have to be bound by oath of affirmation to support this constitution. And we might think that really doesn't have anything to do with religious liberty. But the choice of the phrase oath or affirmation, capital O oath, capital A affirmation, is a religious liberty issue. Among the Protestant community in America at the time of the founding, there were those who thought that an oath was a kind of idol worship. If you were taking an oath to a government or to a law, that was violating your first duty to believe in God. It was like worshiping a false God, right? So oath or affirmation, allowing affirmation is a religious liberty principle. Then there's an explicit religious liberty principle that follows that closes out Article VI of the Constitution, and we don't notice it as a religious liberty issue. So the end, and no, so all anyone who serves in any offices, federal state, has to take an oath or affirmation to support the Constitution. But, says the final clause, but no religious test, capital T, shall ever be required as a qualification to any office or public trust under the United States. There you go, religious liberty. But also notice it's a matter of public record at the time that the Constitution is proposed in 1787, ratified in 1788, that there are established religions in the states. And the Constitution's got nothing to do with that. If a state has an established religion or it doesn't, that's their business in the states. But for the federal government to hold federal office, no religious test, meaning you can believe anything or nothing about religion. It has nothing to do with whether you're qualified to hold office. Okay. So that's a religious liberty principle. Now you that that suggests to me, between the Article Six, two Article Six clauses and the first two clauses of the First Amendment being about religion, that suggests to me freedom of religion is the single most important liberty or right in the American mind for the framers and the ratifiers. Now, someone might say, wait a minute, Professor Carese, you went back into the 1787 Constitution. Aren't there rights protected in earlier in the Constitution? Fair point. So back in Article I in Section 9, it is true there's a kind of mini Bill of Rights. This is one of the arguments that the Anti-Federals made against ratifying the Constitution. Hey, wait a minute. Don't don't give us this phony baloney, Hamilton and Federalist number 84, or others. We don't need a bill of rights because there are just very few enumerated federal powers, and we don't need to get into a list of all the things the government can't do because the government, the federal government can't do very much. Okay, that's the argument. Well, wait a minute. In Article 1, Section 9, say the Antifederal Senate, you've got, you know, in the in the second clause, the privilege of the writ of habeas corpus shall not be suspended, right? Except in case of rebellion or invasion. Then no bill of attainder or ex post facto law shall be passed. Okay. Those are classic common law rights in the English common law. They're in the state constitutions, and there they are. Okay. But those are general, my response would be those are general liberty protections about criminal law, protection against arbitrary criminal arrest or punishment by the federal government. Okay. Fine. That's important for the framers in terms of political civil liberty generally. But in terms of a specific liberty, a particular topic of political controversy, I still think it's important that when framers are thinking about rights to liberty and the pursuit of happiness for the Declaration of Independence, they're thinking religious liberty. That's that's number one. That's why it's in Article Six twice, and then the first two clauses of the First Amendment. So I think you you phrased the question the right way. The two religion clauses in the First Amendment, and if you go back to Article VI, really two other religious clauses there, they are protecting religious liberty. And so then I think the next question to ask would it make sense to the drafters and then the ratifiers out in the state conventions of the Constitution and the First Amendment that there's some necessary conflict between, let's just take what I'll call the two negative clauses no religious test and non-establishment. Federal government can't require religious tests, federal government can't establish religion, and the positive protection of free exercise of religion. Does it make sense if it was so important that they would just have made an over oversight? You know, oh gee, we forgot. We were sloppy. I don't buy it. I think they would have thought very carefully in the drafting and then in the ratification debates, they would have discussed this. They don't see a necessary tension between the two religion clauses in the First Amendment, let alone the no religious test clause in Article VI. So that that needs a little more explanation. Tensions between them, okay. That's true of all the that's true of the entire constitution, you know, different clauses in the constitution. For goodness sakes, we have Article I and Article II and Article III, right? It's a principle of the American mind that there's more than one principle that's important in in terms of rights and liberty and Republican government. We got to figure out how to have the right balance between them. There might be tensions between them, but there's not a necessary contradiction between them. And of course, different branches of government. So, yes, there might be tensions between a non-establishment of religion for the federal government alone, right? That's the First Amendment as proposed and ratified, only restricts the federal government initially. Is there some necessary tension between non-establishment of religion and free exercise of religion? That I don't see a necessary tension. There might be some tough calls in particular cases, but I think the burden of argument falls on anybody who says, oh, you know, there's a real problem here, contradiction. And again, notice two negative protections, no religious test, no federal establishment religion, and a positive one. Freedom to exercise your religious beliefs, freedom of worship, freedom and practice. So I'll close this first very long answer by suggesting I think really we could say all three or four of these clauses are positive about religion. Religious belief is set up here as a good element of American political life, preventing the federal government from taking any action to restrict religious beliefs or practices, to require any particular religious beliefs, to ensure freedom of religious belief and practice, all that is a good positive thing.

SPEAKER_00: 10:31

So why did the founders then believe that religion is essential, right, to sustaining a free republic and maybe even beneficial, but it also maintains that the federal government can't impose or endorse specific religious beliefs. Isn't that in itself contradictory?

SPEAKER_02: 10:50

Fair question. I mean, the general answer is that the federal government restricts itself to the enumerated powers agreed to in bargaining in the federal convention of 1787. These are the necessary national and international powers needed. And everything else, not enumerated, not delegated up to the new federal government is left to the police powers of the states, the plenary powers in the states for health, safety, welfare, and morals. That's religion, one of them, right? So the uh the the main area about religion has to be left to the states. But there is gonna be this statement, you know, both negative and positive protections for liberty because it's important. And then a second answer is why is it important? Well, we're gonna I'm gonna mention some phrases in the Declaration of Independence. But the paradox of religion for the late 18th-century American mind is that religion has been such a source of controversy, of war, of, of, of killing, uh of political persecution. We're gonna have this principle that it's important, but it has to be carefully managed, anything in relation to government or politics. I'm gonna make the argument there's not an absolute negative stance toward religion in connection to government or politics. Thomas Jefferson's view is to call this the separation of church and state. I don't think that's the predominant view among the framers. But this is a paradox. It's so important, but can be so contentious that we're gonna be quite careful, complicated in how we say it's a good thing, but the federal government's not gonna take strong directive action about religious beliefs. Okay. So again, why important? Well, think back to the Declaration. There are four references to a divinity in the Declaration. First is the laws of nature and nature's God, the source of these ideas of rights and justice that follow in the document and other grounds for separation from Britain. A creator endows us with these unalienable rights, but also in the final uh paragraph, two uh appeals to invocations of an active providential divinity protecting justice and liberty. So there we are at the beginning of the founding, so to speak, 1776, references to divinity, to at least the topic of religion, religious belief, very broadly couched. Then I'll go to the close of the founding, as I would consider it, 1796, George Washington's farewell address. I think that's really the you know, the successful conclusion of the American founding when Washington can step down, the government is built, but also this important set of constitutional lessons that Washington offers. So after saying he's not going to run for office, be a candidate to stand for office as president, he's basically retiring from public life a second time. Uh, and lessons he wants to give about supporting the Constitution and the Union and beware of parties and factions and things, there's a clause, still fairly widely cited, you know, 200 years later, and it goes as following another one of his counsels and lessons. Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. I'm just going to read on two further points. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, right? Religion and morality, these firmest props of the duties of men and citizens. And I'll just skip the phrase, right? Where is the security for property, for reputation, for life, if the sense of religious obligation should desert the oaths which are the instruments of investigation in courts of justice? He's got other phrases, but note that, right? It's sort of a religion is a great pillar of human happiness on the high end, but on the kind of low end, Washington speaking for a widely held view that we to have the rule of law and and to really make oaths worth something, we need a sense of religious duty and religious belief and to support ideas of religious conscience. So those are just a couple of indications from 1776 from 1796 of how important religion is. A couple of other I guess I'll just mention one more. George Washington, when he's inaugurated in 1789, adds to the presidential oath of office the phrase, after he's completed the part in Article II that's in quotation marks, right? The official executive oath, he adds, so help me God, and he takes the whole oath holding his hand on a Bible. That was a standard practice in in state governments, you know, courts of law, things like that. He adds that. Nobody questions it. Every president, I believe, except one, for 230 some odd years, has done that. Right? Bible, so help me God. And by the way, after that, he gives his personal address, and then the House and the Senate, and the president and the vice president, they go to a religious church service in in New York. Okay. So this is just a sense of how important religious was religion was in the fabric of the American founding, and yet religious liberty was indispensable. I'm gonna I'm gonna make one more quotation here about Washington, right? The indispensable man, the most important founder, in my view, just one last point about religion's important, but religious liberty. So one of the extraordinary things about Washington's presidency is that he writes letters to religious congregations who have written to him to congratulate him on being elected as first president of the United States under the new constitution. He writes letters to religious minorities in particular, Baptists, Roman Catholics, Jews. He writes letters to two Jewish congregations. Okay. So this is, and this is everything he does as a matter of public record, right? Immediately and he knows later in history. So this is just a phrase from the letter to the Hebrew congregation in Newport, Rhode Island, 1790. Okay, just this one phrase. Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy worthy of imitation that all possess alike liberty of conscience and immunities of citizenship. Next paragraph. For happily, Washington writes, the government of the United States, which gives to bigotry no sanction, to persecution no assistance about religion, right? Our government requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support. Boom. Right? This is before the First Amendment is proposed. Just saying religious liberty is a fundamental principle for me as president of the United States, and he knows a bit about predominant American news at the time. So religion's important, but religious liberty in the American mind is crucial. The government is not going to compel, like federal government is not going to compel any particular religious beliefs.

SPEAKER_00: 18:30

Dr. Crace, you brought up Thomas Jefferson. Are you pointing to his letter from the Danbury Baptist where he talks about the separation of church and state?

SPEAKER_02: 18:39

Yes, I am.

SPEAKER_00: 18:40

Okay.

SPEAKER_02: 18:41

Just wanted to double check. Yeah. So you go ahead.

SPEAKER_00: 18:48

I was I was gonna ask the last question, but if you have something to add, please.

SPEAKER_02: 18:52

No, no, go ahead. Go ahead. Yep.

SPEAKER_00: 18:54

So you're suggesting then that these clauses in the constitution and the first amendment about religious liberty are really summarized as the philosophy of freedom for religious belief as opposed to freedom from religion, correct?

SPEAKER_02: 19:10

Yes, yes. And that's why the reference to Jefferson and his phrase from the Danbury Baptist letter, 1803, when he's president, of separation of church and state, which takes a mostly negative view, freedom from religion. That's what the religion clause is in Article 6 and the First Amendment stand for. So I'll invoke here not only what I've just mentioned from Washington, but 40 years later, the outside expert view of Alexis de Tocqueville in Democracy in America, who says, yes, on the one hand, the Americans have, and the and the state governments, now most of them by by 18, I think 1833 is the last disestablishment of a state religion. Tocqueville says, you know, the Americans have this principle of separation of church and state. No government's going to require religious beliefs, state or federal, by the time Washington is right, by the time Tocqueville is writing. But he says the Americans do not separate religion and politics. He says this in multiple ways in Democracy America, and it's a very good thing. He says religious belief is the first political institution of the American Democratic Republic. They rely on it to undergird ideas of civic duty and civic virtue and self-government and the entire American political culture. So I think that affirms the Washingtonian view is still predominant 40 years later when Tocqueville's writing in the 1830s. And you know, there's just an enormous amount of evidence of this from the founding period. I could talk about the Thanksgiving proclamations that presidents still issue 230 years later, but George Washington was the first. Why? Because Congress requested a day, a proclamation about a day of Thanksgiving, fasting and prayer in 1789. That Thanksgiving is a national holiday. That doesn't happen until Lincoln's presidency, but still it's a it's a practice that begins as a national presidential proclamation back in 1789. Christmas becomes a federal holiday. So, you know, the the the this this paradox, yes, this sort of tension, this complexity in American politics that religion is important, but religious liberty also is important. And the government is not going to directly require any particular religious views. So I'll finish by saying, you know, this gets quite complicated as American history goes on, partly because we become more pluralistic about religious beliefs and people from different cultures and civilizations coming here over 240 years, but but also because of the 14th Amendment. So I'm sure Sean Beyenberg will talk about this in the two episodes you've got scheduled on, you know, first the non-establishment clause, then the free exercise clause, right? Once the 14th Amendment is ratified, it's interpreted as pulling the protections of the Bill of Rights up under the 14th Amendment and applying them against the state governments. And so federal courts are now arenas where people in the states can say, hey, my state government has got a law or a practice or something that violates non-establishment or violates free exercise. So it gets more complicated because the states, again, are the arena of the plenary police powers, health, safety, welfare, morals. And that means they're also in charge of schooling. So we get to these questions about presence of religion in schools and all kinds of other questions and tests and court cases that are rising. But I don't think in all of that we should lose the founding orientation, the founding principle that religion is seen positively and religious liberty, religious freedom is to be protected. But it it is a complicated question and a sort of complicated set of principles to be held together.

SPEAKER_00: 23:10

And our next episode is going to be with Dr. Beinberg on the free exercise clause, and then the one after that will be on the establishment clause. And I think that Dr. Cariz just volunteered himself for our Thanksgiving episode, too, because we are going to talk about presidential proclamation. So it's fun as you bring these things. I'm like, oh, we're going to have a podcast on this and this. And so, Dr. Caris, thank you so much for giving us a foundation for religious liberty and what the Constitution says. And we're going to dig in more in upcoming episodes. Thank you.

SPEAKER_02: 23:44

Great. Thank you, Liz.