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Thomas Jefferson, the First Amendment, and Why We Can't Stop Fighting About Religous Freedom

By Valerie Tarico ~

Thomas JeffersonIn 1878, the Supreme Court of the United States wrestled with a religious freedom case focused on Mormons and polygamy. In the written decision, Chief Justice Morrison Waite explained the court’s attempt to discern the intent of the First Amendment. He turned to someone who had been in the room when the Amendment was written—Thomas Jefferson:

Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." (emphasis mine).

Waite took Jefferson’s words to be definitive: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

In other words, the Constitution guarantees a right to religious opinion, not behavior, and specifically not behavior that violates civic responsibilities. Lest we think freedom of thought is too trivial to have been the concern of America’s founders, we need only look at how Muslim theocracies are attempting today to insert anti-blasphemy laws into the United Nations or how sanctions against blasphemers have recently been strengthened in places ranging from Russia to Pakistan to Ireland.

Based on this understanding of the U.S. Constitution, the Waite Court ruled that civil authorities had the right to regulate marriage, and that religious conscience claims offered no exemption. Twelve years later, bowing to legal and cultural pressures, the Latter Day Saints Church reversed its support for polygamy. But in the long run, neither Waite nor Jefferson himself has provided a satisfactory solution to American battles over religion in public life.

That is because the line between freedom of opinion and freedom of action is not nearly as clear as it sounds. As a psychologist, I would argue that belief dictates behavior, and strong belief is a strong dictator. If you step through my front door, how I respond depends on why I think you are there. If you come as a friend, I’m likely to be friendly. But if I believe strongly that you are there to rape and kill my daughter, I am likely to shoot you.

A sense of divine mission, if anything, lowers barriers between belief and behavior. Religious belief can be humble and hopeful, but often it is instead backed by righteous certitude that can trump social norms and even humanity’s deepest ethical intuitions.

I once wrote an article entitled, “Why Good Christians Do Bad Things to Win Converts.” The short answer to the title question is that religious beliefs can co-opt and redirect moral intuitions even in otherwise decent people. For example, earnest volunteer missionaries in Child Evangelism Fellowship feel driven to save kids from hell, and if this requires telling kindergartners they were born bad and deserve eternal torture, so be it. Hell-belief creates an imperative in which the end (salvation from torture) justifies deception, manipulation and fear induction. If I myself believed kindergarteners were slated for torture, I too might be willing to risk causing religious trauma syndrome.

Belief dictates behavior. It is impossible to disentangle creed and deed.

And so we are left with a tangle.

The dividing line drawn in the U.S. Constitution, clarified by Jefferson and reiterated by Waite, may allow civil law and religious pluralism to coexist, but it is inherently unsatisfying. It offers only the most abstract outline for addressing questions about religious freedom: yes to the right of individuals to formulate God and goodness according to the dictates of their own minds; yes to the right of the collective to constrain individual behavior for the sake of coherent civil society and the common good. From day one, lawmakers, the priesthood, corporate bodies, and individual citizens have been wrestling with how to make this work. And despite over 200 years of effort, we have failed to reach agreement on how to balance these competing demands.

The problem—Americans hate to admit this—is that we cannot have it all.

Pretending that we can grant deference to “sincerely held” religious belief while still sustaining a thriving pluralistic democracy—is an exercise in self-deception.By their very nature religions make truth claims and behavioral demands that are at odds with the goals and methods of civil society. Religion seeks to optimize wellbeing in some afterlife; civil society seeks to optimize wellbeing here on earth. Those two goals don’t always align. Religion asserts rules for living based on appeals to authority. Ideally, social science proposes rules for living based in evidence and reason.

To further complicate the matter, the truth claims and behavioral demands of many religions are mutually exclusive. Christianity alone has fragmented into over 34,000 different denominations and non-denominations because Christians disagree emphatically about God’s priorities and experience these differences as irreconcilable. And though Christianity in one form or another may be the majority spiritual worldview in America, it certainly isn’t the only one.

Our religious and spiritual differences put us at odds about the most sacred aspects of our lives: whether we bring a child into the world, how we view the moral standing of other species, who we are willing to kill, and how we die. Furthermore, sincerely held religious belief can oblige believers to control other people and religious institutions to control outsiders. When religious believers are prevented from acting on these obligations, they feel violated, even persecuted.

By definition, religious orthodoxy seeks conformity. This means that increasing one person’s religious freedom decreases the religious freedom of another. Giving religious rights to institutions limits the rights of individuals and vice versa.

Secular rules and responsibilities, including basic criminal codes and child protections, not infrequently countermand religious rules and responsibilities as understood by individual believers. American Evangelicals and conservative Catholics keep telling us this, loud and clear, and we should listen to them. Religion is whatever the believer says it is, and no secular or ecclesiastical authority has the power to say otherwise. Enabling a woman to prevent pregnancy, complying with anti-discrimination laws, stopping parents from whipping their children, allowing a cancer patient to manage his own dying process—these really do violate some people’s religions.

Pretending that this isn’t the case—pretending that we can grant deference to “sincerely held” religious belief while still sustaining a thriving pluralistic democracy—is an exercise in self-deception.

The best we can do is struggle to find balance points that respect individual autonomy while limiting the religious freedom to do harm to either America’s democracy or citizens. The First Amendment, as interpreted by Jefferson, grants our government broad latitude to promote the general welfare in cases where religion might dictate otherwise. The 1993 Religious Freedom Restoration Act, basis for the recent Hobby Lobby case, reverses the order of priority, granting sincere believers exemption from otherwise universal responsibilities and rules. The Freedom From Religion Foundation, a church-state watchdog, is calling for legislation that would overturn RFRA altogether and revert to earlier standards, which are summarized in Ruth Ginsberg’s Hobby Lobby dissent. Constitutional scholars Marci Hamilton and Leslie Griffin instead propose congress should adopt 10 exemptions from the blanket privilege RFRA grants to believers. As they put it, “There are some actions no law should permit even if the person says he was acting out of religious motivation.” Their list includes child sex trafficking, terrorist acts, gender discrimination, housing discrimination, illegal drug use, endangering species at risk, and financial fraud but sidesteps current controversies like female genital mutilation and the right of religiously motivated parents to beat children or deny them education. Senators Mark Udall and Patty Murray introduced even narrower legislation to stop employers from interfering in an employee’s family planning decisions.

Regardless of how broad or narrow the constraints on religion may be—no matter how compelling the evidence that limiting a given religious behavior promotes public health, child wellbeing, human rights, tax fairness, broad sustainable prosperity, or global relations—lawmakers can be assured that some people of faith will resist. Their sincerely held beliefs oblige them to do so. Religions cannot self-regulate any more than corporations can. That is why it is up to those on the outside to make our own best judgments about what is real and right and to set limits that honor universal ethical principles and wellbeing.

Valerie Tarico is a psychologist and writer in Seattle, Washington. She is the author of Trusting Doubt: A Former Evangelical Looks at Old Beliefs in a New Light and Deas and Other Imaginings, and the founder of Subscribe to her articles at