In light of the Supreme Court’s new ruling on gun regulation (New York State Rifle & Pistol Association Inc. v. Bruen) I thought that these articles might be of interest.

1.The first one is an interview with Adam Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America, by the New Yorker magazine’s Isaac Chotiner (“The Historical Cherry-Picking at the Heart of the Supreme Court’s Gun-Rights Expansion: A century-old New York law requiring individuals to prove “proper cause” to carry a handgun has been struck down. Are other gun-safety measures in peril?”)

Here’s an excerpt:

In terms of the decision itself, what was notable about how the Court presented the history of the Second Amendment and guns?

Most notable is that the Court says it is going to look to history and tradition, but then ignores history and tradition. The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers. The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.”

2. A post in Politico does a really great job debunking the Court’s Second Amendment originalist claims: “The Supreme Court’s Faux ‘Originalism’: The conservative Supreme Court’s favorite judicial philosophy requires a very, very firm grasp of history — one that none of the justices seem to possess.”

In the case of the Second Amendment, Congress sought to assuage the concerns of antifederalists who feared the rise of a large standing army that might stamp out Americans’ liberties, much as the British army had done in the 1760s and 1770s. The amendment provided that Congress could never deprive people the right to own firearms in the dispatch of their obligation to fulfill militia service. The right to own a gun for individual self-protection was a different — a matter of common law that, as Scribble Scrabble noted, could be expanded, modified or taken away by legislation.

The distinction between collective rights and obligations to bear arms, and individual rights to gun ownership, was widely understood. In Virginia, Thomas Jefferson attempted to include a specific individual right to bear arms in the state constitution, to complement the existing provision safeguarding militias. His effort failed. Similar efforts failed in other states.

One might argue that early state constitutions were distinct from the federal Constitution approved by convention in 1787. But these early state documents deeply informed the federal effort in Philadelphia. The discussion around their adoption lends an understanding of how Americans thought about rights in the late 18th century.

But to appreciate how the founding generation thought about firearm regulation, we can look at what they did, and not just what they said. James Madison, the author of the Bill of Rights, twice introduced state legislation in Virginia that would impose penalties on any individual who “bear[s] a gun out of his inclosed ground, unless whilst performing military duty.”

You read that right. The author of the Second Amendment drafted statewide legislation that was effectively a forerunner to the New York state law that the Supreme Court just struck down. The bill, which was really aimed at regulating deer hunting, did not pass. But it clearly demonstrated that Madison viewed individual gun ownership as well within the state’s regulatory prerogative.

3. The next two were published in The New York Review of Books:

“Ruling by Fear: The Supreme Court’s conservative justices paint a dark portrait of society, danger lurking in every shadow, to justify overturning a New York gun control law.” by Liza Batkin

Excerpt:

“By enshrining a constitutional “right to carry a handgun for self-defense outside the home,” the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen all but guarantees more guns on streets already bristling with them. It ushers in a world that many people will not be happy to inhabit. But the conservative justices are already living in that world. A dark and cynical view of society runs through their opinions and the questions they asked at oral argument. Danger lurks behind every corner, threatening to lunge at our heels, and the best we can do is arm up. It’s a Wild West worldview in the guise of an originalist, text-bound decision.”

“The Remaking of the Second Amendment: The Supreme Court’s expanding interpretation of the Second Amendment threatens longstanding democratic authority to enact gun safety measures.” by Duncan Hosie and Reva Siegel

Excerpt (reminder of recent “originalist” (not!) case establishing the Second Amendment as an individual right for the first time with emphasis on the 2008 part):

“That changed in 2008, when five Republican-appointed justices on the Supreme Court asserted that they had discovered the “original meaning” of the Second Amendment and used it to invalidate a law restricting handgun possession. The case, District of Columbia v. Heller, involved a challenge to a local law that barred most residents from owning handguns and required that firearms kept at home be unloaded and disassembled or bound by a trigger lock or similar device. The Court’s conservative majority held that the Constitution’s framers ratified the Second Amendment to protect an individual right to keep and bear arms for self-defense, especially in the home, where the need for defense of self, family, and property is “most acute.” This 5-4 decision changed the way most Americans read the Second Amendment. The Court brushed away the Amendment’s first clause—“a well regulated Militia, being necessary to the security of a free State”—as merely “prefatory” and instead emphasized “self-defense” as “the core lawful purpose” of the Second Amendment.”

Did the Champion of Religious Freedom Oppose a Tax for the Support of “Teachers of the Christian Religion” to Protect “the Church”?

The advent of originalism in Constitutional jurisprudence has put the Founders front and center in a battle for the soul of the nation. The desire to enlist them in support of one’s preferred interpretation is irresistible. The result has been a lot of bad history. (1) When it comes to the First Amendment the most sought-after founding ally in the battle over its meaning is James Madison, whose substantial role in drafting the First Amendment makes his views indispensable. On the subject of religious liberty Madison’s views are well known and well documented. There are debates to be had about the exact contours and extent of his commitment to a strict separation of religion and government but the fact that he was devoted to a strong separation is undeniable. This fact has not stopped accommodationist devotees from trying to enlist him in their originialist projects. One of these attempts is the subject of this essay.

Challenging the rights-protecting function of the Establishment Clause the legal scholar Carl H. Esbeck argues that it was instead meant to be a structural mandate which is about “the management of power” between two centers of authority. (2) To justify this interpretation Esbeck turns to history. While he has examined the events at the First Federal Congress which wrote the clause, he has mainly focused on the history of disestablishment in the states to justify his theory on originialist grounds. (3) The history of the struggles to disestablish religion in the states reveals what Esbeck calls the American Settlement. This settlement was not “one of a hermetic separation between church and state in which all things religious are kept at arm’s length from government, its lawmaking, and other public affairs.” Instead, he claims that it was about “a free church and a limited state.” (4) The focus of his research has been on the religious dissenters because they made up the majority of those pushing for disestablishment, and they were doing so, according to Esbeck, not from a rationalist or secular perspective, “they were religious people who sought disestablishment for (as they saw it) biblical reasons.” (5) While acknowledging Madison’s rationalist bone fides he presents him as an exemplar of the American Settlement who was “writ[ing] from the perspective of a Christian.” (6) His interpretation is not based on a broad examination of Madison’s life’s work but is gleaned solely from Madison’s celebrated Memorial & Remonstrance Against Religious Assessments. (7)

This essay will examine Esbeck’s interpretation of Madison’s Memorial as presented in two of his more recent works on disestablishment. (8) A broader analysis of Esbeck’s work on disestablishment deserves attention, but since the goal here is to reveal how Esbeck uses history to support his interpretations of the Constitution a focused analysis is more useful. His approach to historical exegesis in this case is indicative of his approach more broadly.

The first section of this essay is a brief review of Esbeck’s American Settlement and its relationship to his structuralist interpretation of the Establishment Clause. This background sheds light on Esbeck’s otherwise mystifying interpretation of the Memorial. The next section provides a brief overview of the historical context in which Madison wrote his famous petition. The final section examines Esbeck’s interpretation of the Memorial and finds it wanting. Rather than finding support for Esbeck’s structuralist interpretation this essay demonstrates the rights-centric nature of Madison’s anti-establishment views.

Esbeck claims that the American Settlement’ as discerned from the history of disestablishment from 1776 to 1833, can be summed up as “a free church and a limited state.” This arrangement, according to Esbeck, satisfied the goals of the religious dissenters who wanted to protect church autonomy and unify the body politic. The term he uses to define this settlement is “voluntaryism.” Esbeck claims that he is using this “older spelling” “as a reminder that voluntaryism represents a specific package of ideas about religion, the nature of the church, and the limited role of the state.” (9) Both the term and the concept are curious since neither of them can be found in the historical record. Esbeck gives no specific source for this “older spelling” and a search through hundreds of relevant documents turned up nothing. The newer spelling “voluntarism” was frequently used, but it was not being used to convey a “package of ideas.” Whatever its historical merits, it does conveniently correspond with his views of the Establishment Clause.

Esbeck denies that the Establishment Clause has any rights protecting function. Instead, he insists, that the Establishment Clause was set up to serve a structural function which involves “the management of power” between two sovereign authorities. (10) Thus, the clause is about managing power between “the church,” by which he means organized religion, and the state. (11) Each of these two powers has its own competency. The church, accordingly, is designated “a competency centered in religion that is on a plane with that of civil government.” (12)

This arrangement has two purposes, according to Esbeck: “to avoid governmental interactions with religion that cause either a fracturing of the body politic (the civitas) along religious lines, or an undermining of the integrity of religion (religare) or religious organizations (the ekklesia).” As such, the Establishment Clause is meant to limit the government’s power to intervene in the domain that belongs to the church yet allows “the church” to influence the state. (13) In other words, the separation he is advocating for is a one-way street that limits only the state. And thus, he declares that the Establishment Clause “embodies this truism about the autonomy of religious organizations.” (14) Rather than protecting individuals the clause protects “churches,” and thus the Supreme Court’s role “is to police the boundary between government and religion looking to arrest overreaching by government, whether national, state, or local.” (15)

Undertaking that task, according to Esbeck, requires a set definition of “religion” that determines which of its aspects of it are within the bounds of state control. While Esbeck wants to keep the state out of the jurisdiction of religion he also wants to allow religious entities to bring religious morality to bear on government policy. Accordingly, he advocates setting the boundary at “those topics ‘respecting an establishment of religion,’ e.g., ecclesiastical governance, the resolution of doctrine, the composing of prayers, and the teaching of religion.” (16) Thus, leaving religious values and morality within the bounds of the government competency. This rendering of the Establishment Clause radically expands the power of organized religion to influence the state, while at the same time shielding it from governmental oversight.

To justify his two sovereign powers (the church and the state) theory Esbeck points to what he calls the “dual-authority pattern of church-state relations” in the West. He claims that this pattern was established in the fourth century when the Roman emperor Theodosius first established Christianity. This pattern, he insists, is “one of coexisting governmental and religious institutions, the former with authority over the civil and the latter having its province over the spiritual.” (17) This simplistic description of the complex relationship between the Christian Church and the state allows Esbeck to establish a framework that gives the church the same weight and authority as the state, never mind that in this arrangement the church actually lost much of its independence by aligning with the state. More troubling is its disconnect from the views of Madison and his religious allies.

Both the dissenters and Madison explicitly denounced this first establishment of Christianity. To them it marked the loss of Christian freedom and the beginning of ecclesiastical tyranny. They believed that the alliance between the church and the state corrupted religion. When the conservatives first attempted to enact a religious assessment in 1779, the Presbyterian minister John Todd wrote to Jefferson denouncing the establishment: “the experience of all the Churches Since Constantine, shew the absurdity of Establishments. Virtue and pure religion do better without earthly emoluments than with.” (18) (italics in original) In the Memorial Madison wrote in reference to the same period: “it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence.” (19) They wanted to undo the alliance by severing all ties between religion and government, rather than to secure “church autonomy” via a different kind of alliance between church and state.

Esbeck’s voluntaryism/structuralist framework denies any rights-protecting function to the no-establishment provisions in either the state constitutions or the First Amendment. The primary function of these mandates, in Esbeck’s estimation, is to secure church autonomy. This view guides his interpretation of the history of disestablishment and Madison’s Memorial.

Before diving into his interpretation of the document a brief background of the history leading up to its creation is necessary. The year 1776 was a momentous one for Virginia. It decided to join the other colonies in throwing off the yoke of British rule. A Convention assembled for that purpose also embarked on the project of creating a constitution and a bill of rights. The actual task of writing the documents was delegated to the respected statesman George Mason. His draft of the Declaration of Rights met with almost universal approval by the delegates and thus endured only two significant changes. One of those changes was prompted by the young and idealistic James Madison. The article dealing with religion sought only to secure mere toleration rather than true religious freedom. Having recently graduated from the Presbyterian College of New Jersey (Princeton), where he was fully immersed in Enlightenment thought, this offended his sense of justice. From his college years, one of Madison’s lifelong passions was religious liberty.

This obsession is evident in his letters to his friend William Bradford. In response to an incident in which several Baptists were jailed for “publishing their religious Sentiments,” Madison wrote to his friend of this outrage. He indicated that he had “squabbled and scolded abused and ridiculed” about the abuse but with little effect. “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business.” Madison noted indignantly, “This vexes me the most of any thing whatever.” He asked his friend to pity him “and pray for Liberty of Conscience to revive among us.” (20) However, he had little hope of achieving this goal given that his fellow Virginians were “too much devoted to the ecclesiastical establishment to hear of the Toleration of Dissenters.” (21) Two years later he would be in a position to deal a major blow to that establishment.

As a delegate to the Convention of 1776 Madison was intent on going beyond the mere religious toleration George Mason had proposed in his draft. As opposed to equal religious freedom, toleration supposes a hierarchy of beliefs and believers. This was insulting to Madison’s enlightened sensibilities. He was committed to the ideals stated in the first article of Mason’s draft: “That all men are born equally free and independent…” (22) Thus, Madison proposed a substitute which would have ended the privileges of the established Church of England (soon to be the Protestant Episcopal Church) thus officially disestablishing it. This was something his Anglican colleagues were unwilling to do, and thus it was struck down. Determined, Madison made several other attempts until he finally received approval for a less ambitious alteration of the article. The language of toleration was replaced with a commitment to equality: “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” (23) This simple change of language set Virginia on the path to disestablishment and equal religious freedom. Without realizing it, the delegates had agreed to establish religious freedom and unwittingly set Virginia on the path to disestablishment.

Even without the explicit language from his original proposal the change from toleration to equality established the logic necessary to bring down the established church. By requiring equality in the exercise of religion it followed that all religious privileges be abolished. The religious dissenters, mostly Baptists and Presbyterians, understood the implications of the language and as soon as the Declaration was put into effect, they began sending petitions to the House of Delegates requesting not only that the establishment be dismantled but also

“that all laws now in force in this Commonwealth which countenance religious domination, may be speedily repealed—that all, of every religious sect, may be protected in the full exercise of their several modes of worship, and exempted from all taxes for the support of any church whatsoever further than what may be agreeable to their own private choice, or voluntary obligation. This being done, all partial and invidious distinctions will be abolished, to the great honour and interest of the State, and every one be left to stand or fall, according to merit, which can never be the case so long as any one denomination is established in preference to others.” (24)

They insisted “that the only proper objects of civil government are the happiness and protection of men in the present state of existence, the security of the life, liberty and property of the citizens, and to restrain the vicious and encourage the virtuous by wholesome laws, equally extending to every individual.” Eight petitions and two newspaper articles echoed these sentiments. (25)

Armed with the dissenters’ petitions Jefferson, who had recently returned from serving in the Continental Congress, drew up a bill that would have disestablished the Church of England while also “totally and eternally restraining the civil magistrate from all pretentions of interposing his authority or exercise in matters of religion.” (26) The conservatives in the House had other plans and scuttled Jefferson’s bid to disestablish their Church. However, parts of the bill were rescued, most significantly dissenters were relieved of their obligation to support the established church. (27)

Jefferson had been outmaneuvered. The conservatives not only scuttled the attempted disestablishment but were also able to sneak into the bill a troubling recommendation. They proposed a general assessment to support all Protestant denominations for future legislation. Whoever was behind the proposal mistakenly believed that the dissenters would back a broadly inclusive establishment that brought them into the fold. The conservatives understood that the tide of history was against single-denomination establishments and in an attempt to save the principle of establishment they proposed a more inclusive version. What they did not understand is that the dissenters were opposed to the principle, as they soon learned when a new batch of petitions came in again, this time they made sure to clarify their position. A petition from the Hanover Presbytery took aim at the recommendation: “as it is contrary to our principles and interest; and, as we think, subversive of religious liberty, we do again most earnestly entreat that our Legislature would never extend any assessment for religious purposes to us, or to the congregations under our care.” (28) The Baptists similarly denounced the suggestion, insisting that it was “pregnant with various Evils destructive to the Rights and Privileges of religious Society.” If it were to be implemented, they asserted, it would mean the end of the “last Article of the Bill of Rights” and “the free exercise of religion.” (29) Such opposition did not deter the pro-establishment Episcopalians who were just as determined to retain the tradition of establishments as the dissenters were to destroy it. Eight petitions in support of some form of establishment were sent to the legislature in 1777 and 1778.

The petitions were presented to the House of Delegates, but no action was taken until the end of the 1778 session and then only to postpone the matter for another year. During the fall session of 1779 a bill “concerning religion” was drawn up which would have essentially established the Protestant Christian religion by requiring that all participating religious societies to sign on to five articles of faith. The articles were broadly Protestant and would have brought most of the dissenters into the establishment fold. (30) Nevertheless, the bill failed. The lesson drawn by the pro-assessment crowd was that the required articles of faith doomed the project, not that religious assessments were unpopular.

In any case, the Revolutionary War put the issue on the back burner until 1783 when petitions for a general assessment made their way to the House of Delegates. The zealous Patrick Henry was the driving force behind the pro-assessment crusade. His popularity was sure to have persuaded the majority to pass a bill for such a purpose. But before he could get a bill across the finish line, he was conveniently elected Governor. It is widely believed, with good reason, that Madison had a hand in this auspicious affair. (31) If Madison and the anti-establishmentarians were to have any chance of blocking the assessment bill, they had to get rid of Henry. Even then, the bill was well on its way to being enacted when the pro-assessment delegates made a fateful error. The bill’s overconfident supporters agreed to postpone the vote until the next fall session so that the public could weigh in. Copies of the bill were sent out across the state for examination and public debate, most of which took place in 1785.

To the surprise of the pro-assessment faction the response from the public was overwhelmingly negative. There were some pro-establishment petitions, but they were dwarfed by the nearly one hundred anti-establishment memorials. Among them were thirteen copies of Madison’s petition, sent out anonymously, entitled Memorial & Remonstrance Against Religious Assessments. The majority of the petitions were from dissenters, but their arguments were in agreement with those of the Memorial and the dissenting petitions. (32) The lasting legacy of Madison’s petition is not simply a matter of Madison’s stature as a founder, it is also because of the clarity and force of its arguments. In Robert B. Semple’s History of the Rise and Progress of the Baptists in Virginia he praised the document for its “elegance of style, strength of reasoning, and purity of principle, it has, perhaps, seldom been equalled; [sic] certainly never surpassed by any thing in the English language.” (33) He astutely predicted that it would “ever hold a most distinguished place” in history. This praise comes from one of the Baptist leaders who was very much involved in the push to disestablish religion alongside Madison. He held the document in such esteem that he added it as an appendix to his history of the Baptists.

The structure of the Memorial is straight forward. It opens with a brief preamble, followed by fifteen arguments against the proposed bill for a general assessment and more broadly against all religious establishments. Where most people have interpreted the document as a plea for a strict separation of church and state, Esbeck sees it as an exemplar of “voluntaryism” and structuralism. Esbeck’s claim rests on the assumption that free exercise concerns (an individual right) and no-establishment concerns (structure) are separate issues. (34) He insists that the anti-establishment movement and opposition to the bill had nothing to do with “freedom of conscience, freedom of inquiry, or private judgment.” (35) Instead, he claims the goals were to protect the church from government interference and avoid discord among the various sects.

To fit the Memorial into his theory Esbeck needs to demonstrate that Madison wrote it within the dual-authority pattern framework discussed above, thus allowing him to use Madison’s petition as a vindication of his voluntaryism principle. Yet Madison did not speak in terms of two centers of power. Esbeck simply assumes that Madison is operating within this so-called Western church-state framework and makes no attempt to demonstrate that this was indeed how Madison understood the world. With this assumption in hand Esbeck turns to the task of interpretation.

The first two points of the Memorial are rights affirming arguments and as such they pose a serious challenge to Esbeck’s theory. As with all fifteen points, Madison begins his first objection with a “Because” statement: “Because we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’” The quote comes from the very article from the Declaration of Rights that Madison had a hand in altering, which opens with this statement. (36) In other words, the bill violates the right to the free exercise of religion and thus is unconstitutional. It is not a superfluous statement reminding the House that religion cannot be directed by force, it is a direct challenge to the bill. 

To get around this obvious problem Esbeck attempts to obscure its meaning by summarizing the above section as:

“Religion is ‘the duty which we owe to our Creator and the manner of discharging it.’ It ‘can be directed only by reason and conviction, not by force.’ Each man has a right to determine his own religion. This is a right as against other men, but as to God it is a duty. That is why it is unalienable.” (37)

The first thing to notice is that the quoted material is presented as if it were Madison’s own words rather than as a quote taken from the Declaration of Rights. In a footnote, which few readers would likely examine, Esbeck does acknowledge that it is a quote, and even then he misidentifies the source. He claims that it was taken from a 1776 petition penned by the Hanover Presbyterians. (38) While that language is in the Presbyterian petition, it is there because they were also quoting the Declaration of Rights. That document was central to both Madison’s and the dissenters’ case against the proposed bill; thus, Madison frequently quotes from it. It may have simply been an oversight on Esbeck’s part, but if so, it is a convenient oversight. Acknowledging it as the source of the quote would mean acknowledging that Madison’s objection was rights based.

As it is, Esbeck’s version presents the words as Madison’s own. His slight alteration of the quote is also misleading. The quote as presented by Madison reads “That Religion or the duty which we owe to our Creator…,” which accidentally leaves out the comma after “Religion.” It does not say “Religion is ‘the duty…,” as Esbeck presents it. Esbeck clearly wants to highlight the statement concerning one’s duty to “the Creator” and imply that they were Madison’s words, rather than George Mason’s. This helps him present Madison as someone coming from a religious rather than a secular perspective, which in Esbeck’s mind means that he could not possibly have wanted a secular republic. He also omits the phrase “or violence,” which is in both the Declaration and the Memorial, that follows “by force.” This is a minor detail, but it is hardly an accident. He leaves out all such references that associate religion with violence. (39)

Madison followed his opening statement with: “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. This right is in its nature an unalienable right.” Esbeck summarizes this as follows: “Each man has a right to determine his own religion.” Esbeck’s version implies that the right is simply about choosing one’s own religion whether that is Baptist, Catholic, or Hindu. This does not adequately capture Madison’s broader right of conscience. The right to choose one’s religion had existed in Virginia under the established Church of England, but what they did not have was freedom from state coercion in matters of religion. That required that religion be completely outside the realm of government jurisdiction, or as Madison put it, “Religion is wholly exempt from its [Civil Society’s] cognizance.” Hence, Madison’s insistence that it was an inalienable right, not just to determine one’s religion, but to be free from “the dictates of other men” in matters of religion.

Esbeck finds Madison’s second reason for the inalienability of the right more appealing: 

“because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” (40)

Esbeck’s renders this line of reasoning in such a way as to make it seem that Madison was admonishing his colleagues to fulfill their “duty towards the Creator,” or as Esbeck rendered it “duty to God.” The real purpose of this argument should be obvious to anyone familiar with the basic arguments put forward by advocates of toleration. The logic of this argument can be clearly seen in Philip Furneaux’s 1773 Essay On Toleration:

“And from his being thus accountable to God alone, it follows, that as his judging and acting for himself in matters of religion is, with respect to his fellow men, a right which he holds independent of them; so, with respect to God, it is a duty which he owes to him: a duty, which he is bound to discharge, notwithstanding every attempt to induce him to process opinions, which he doth not believe; or adopt practices, which he doth not approve or acknowledge any authority, or any law, in the mere concerns of religion, except the divine authority, and the divine law. Absolute liberty, therefore, in the affair of religion, belongs to us, as reasonable creatures, dependent on, and subject to, the universal Sovereign and Judge. It is a right essential to our nature: whatsoever other rights, therefore, we are supposed to resign on entering into society, this we cannot resign; we cannot do it, if we would; and ought not, if we could.” (41)

In other words, because it is a duty to God alone and not to other men, “[a]bsolute liberty” in religious opinions and practice is required and it cannot be given up to the state. Madison was undoubtably influenced by Furneaux, as well as others, whose pamphlet he requested in 1775. (42) Thus, this line of reasoning is a fundamental argument meant to deny the state any jurisdiction in matters of religion.

Hence Madison’s conclusion “that in matters of Religion, no mans [sic] right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.” Notice that Madison clearly indicates that it is “Civil Society” that has no cognizance over religious matters, and that it is denied this jurisdiction because of an individual unalienable right. To obscure the obvious implications of this, Esbeck summarizes the statement in this way: “Because man’s determination of his religion was never contracted away, indeed is a duty to God and thus not capable of being contracted away, government has no cognizance over religion.” (43) By replacing Madison’s “Civil Society” with “government” Esbeck can more easily fit the argument into his two centers of authority argument. The right that this exemption rests upon is similarly obscured. Where Madison talked about leaving religion “to the conviction and conscience of everyman,” Esbeck frames it as a choice to determine one’s own religion. Where Madison highlights individual rights, Esbeck highlights a duty to God. Where Madison speaks of civil society, Esbeck speaks of government. What had been a strong defense of individual rights thus becomes a modest statement about one’s duty to God and limiting the power of the government.  

In addition to clever summaries Esbeck strategically omits significant sections of Madison’s argument. Here Esbeck notably ignores Madison’s conclusion which indicates “that the majority may trespass on the rights of the minority.” This observation was at the heart of Madison’s thinking about rights protection and thus its absence in Esbeck’s summary is notable. Standard assumptions about threats to rights put the onus on the executive, but what Madison learned in Virginia was that the greatest threat to rights came from majorities who sought to impose their will through the legislature, as he explained to Jefferson in a letter:

“Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience it is well known that a religious establishment wd. have taken place in that State, if the legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. [The Statute for Establishing Religious Freedom] Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” (44)

This insight famously led Madison to recommend that the problem be solved by delegating rights protection to federal oversight where the existence of the diversity of sects would make it more difficult for a majority to form. (45) Thus, he twice proposed to give the federal government “a negative in all cases whatsoever on the legislative acts of the States,” which he believed would prevent “the aggressions of interested majorities on the rights of minorities and of individuals.” (46) He failed to convince his colleagues of this measure, nevertheless it was an important element of his thinking about rights, and religious rights above all.

The problem for Esbeck is that it contradicts his structuralist claims. In reference to the Establishment Clause he insists that the goal “is not to protect people from other people. Nor is it to protect minority religions from majority religions. Nor is it to protect the nonreligious from the religious. Nor is it to protect the government from the church…” (47) This interpretation does not square with Madison’s, nor the dissenters’, views about establishments, and thus he simply ignores Madison’s statement about majorities. In the Memorial Madison had not yet fully fleshed out what would become the core principle of his thinking on rights. (48) This came after this fight over the general assessment as Madison prepared for the Constitutional Convention of 1787. And there can be no doubt that this was about establishments of religion. The attempted establishment that Madison was fighting against was the result of “overbearing majorities” attempting to impose their wills through the legislative body despite the prohibition against doing so in the Declaration of Rights. Writing years later about the Memorial and the defeat of the assessment bill, Madison boasted “under the influence of the public sentiment thus manifested the celebrated bill ‘Establishing Religious Freedom’ enacted into a permanent barrier against Future attempts on the rights of conscience as declared in the Great Charter prefixed to the Constitution of the State [The Declaration of Rights].” (49) To write religion into law is an establishment that  privileges the religion of some above others in violation of their rights of conscience. The source of this problem was majorities, and thus not trusting majorities to engage in forbearance he sought a solution that would not rely on their good will, hence his solution that relied on a multiplicity of sects to prevent majorities from forming.

The second section of the Memorial is a logical extension of the first section which opens with: “Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body.” This is so because legislative bodies are necessarily “creatures” of society, Madison explains, and thus have the same limits and boundaries as those placed on civil society. Once again Esbeck’s summary replaces “Society” with “government.” From here Madison’s explanation lends itself to Esbeck’s ends. (50) Rather than simply saying that the powers of the legislature are derived from and limited by the people as well as being limited by the other branches of government Madison says,

“Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments [i.e., the executive and judicial branches], more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people.”

In other words, the separation of powers is one way to preserve a free government, but another way is through “the great Barrier which defends the rights of the people” (i.e., the Declaration of Rights). Even though Madison is mentioning the other branches of government only to illustrate one of the ways the legislature is limited, Esbeck seizes on that language as evidence that Madison is making a structuralist argument.

Thus, Esbeck summarizes Madison’s argument as: “Not only is separation of powers among government’s three departments essential to limiting government, but the departments must not ‘overleap the great Barrier’ that limits all government.” Notice that the subtle differences in language shifts the focus to limiting government. To fit it into his “two centers of authority” concept he asserts in his commentary, “There is a center of authority that exists apart from the government, an authority over religious matters.” (51) This authority in Esbeck’s theory is, of course, the church. There is nothing in Madison’s statements, nor in any of his writings, that justifies imposing this perspective on Madison, but Esbeck needs to do so in order to make Madison a disciple of voluntaryism.

More troubling is Esbeck’s explication of the meaning of “the great Barrier.”  The “great Barrier” is actually a reference to the Declaration of Rights, but Esbeck turns it into a barrier that limits government from overleaping into the domain of another authority (the church) whose jurisdiction is religion. (52) To come to this conclusion Esbeck has to ignore the obvious clues that indicate that Madison was referring to the Declaration of Rights. The first major clue is the fact that he refers to it as something “which defends the rights of the people,” which is conveniently absent in Esbeck’s summary. In addition, the Declaration is the foundation on which Madison challenged the legitimacy of the bill, and references to it are found throughout the Memorial. Thus, Madison is accusing the legislature of overleaping the barrier meant to protect “the rights of the people”: The Declaration of Rights.

Beyond the document itself, ample other evidence for this interpretation can be found. Madison frequently used the word “barrier” to refer to bills of rights. In a famous letter to Jefferson in 1788, Madison tried to defend the federal constitution’s lack of bill of rights by explaining,

“experience proves the inefficacy of a bill or rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.” (53) (italics mine)

It was his experience dealing with the repeated attempts to enact a religious assessment in Virginia that taught him that bills of rights were “parchment barriers” rather than “great Barriers,” but “barriers” nevertheless. This profusion of evidence contrasts with the lack of evidence for Esbeck’s interpretation. Nevertheless, Esbeck uses the phrase to align Madison’s goals with his own.

Having determined that the barrier is a limit on government preventing it from stepping into the domain of the church, he explains that there is a need to determine “the proper location of this ‘great Barrier’ between government and those aspects of religion outside the reach of government.” (54) Because Madison obviously does not provide an answer to this, Esbeck wonders how Madison would have “parse[d] the meaning of ‘religion’ beyond its being a duty to God.” (55) Rather than looking to Madison’s life for potential answers, Esbeck speculates how Madison must have thought about it. Because Esbeck does not believe that Madison could have possibly meant all religion, he contends that Madison did not mean to exclude all religion from the jurisdiction of the state. (56) Esbeck clearly believes that religious principles should guide civil law and he speculates that Madison would have seen matters similarly because Madison could not possibly have meant to exclude “the many ill behaviors of our common life…such as on stealing, lying, neglect of one’s children, and murder” from the realm of government control. It is only “explicitly religious matters (for example, religious doctrine)” that, according to Esbeck, belong outside the state’s jurisdiction. (57)

The problem with Esbeck’s broad conception of religion is that he equates morality and crimes with religion. It is easy to see why Esbeck wants to frame the issue in this way. It leaves the door open for religion or religious groups to shape public policy, for which he has long advocated. The issue for him then is about whose morality will prevail. Esbeck suggests that competition “in the market-place of ideas, as well as the better organizational acumen to promote it,” something that often relies on the size of one’s group and the wealth that it possesses, should decide. (58) Thus, if a majority of people want traditional marriage to be the law of the land, so be it. Never mind that this is the dogma of a particular religion and if enforced by law it would bind others of a different persuasion to the religion of another. This kind of religious domination is exactly what Madison, and the dissenters were trying to prevent.

And it is doubtful that Madison would have conceived of the relationship between morality, crime, and religion in the same way as Esbeck. Like many of his contemporaries, Madison would have believed that religion fostered morality, but he did not conflate the two concepts. Morality and religion are not one and the same, even though some moral precepts are derived from religious traditions. It is important to distinguish between moral principles that are incorporated into religious systems because they are universal moral principles that make human societies possible, such as cheating or lying, and those that are unique to a particular religion or religious tradition. Moral doctrines that are derived from particular religions or denominations fall in the realm of religion and as such are religious dogmas and thus would be outside government’s jurisdiction in Madison’s system.

This distinction was often made in the tolerationist literature that Madison drew from and likely reflected his own views. Sins are moral principles that are specifically tied to the dogmas of a particular religion. While some believed that the state should punish these sins, most advocates of religious toleration did not since they did not harm one’s neighbors or civil society. John Locke explains this distinction:

“For it does not belong unto the magistrate to make use of his sword in punishing everything, indifferently, that he takes to be a sin against God. Covetousness, uncharitableness, idleness, and many other things are sins by the consent of men, which yet no man ever said were to be punished by the magistrate. The reason is because they are not prejudicial to other men’s rights, nor do they break the public peace of societies. Nay, even the sins of lying and perjury are nowhere punishable by laws; unless, in certain cases, in which the real turpitude of the thing and the offence against God are not considered, but only the injury done unto men’s neighbours and to the commonwealth.” (59)

Only civil concerns (“life, liberty, health, and indolency of body; and the possession of outward things”), not religious morality, should be within the jurisdiction of the state.

The same goes for crimes. No one would be foolish enough to believe that the state has no power to enact laws against crimes (harms to others or society), but most people would not equate crimes with religion even if most religions have prohibitions against certain crimes as part of their religious teachings. Religions condemn crimes because they make civil society impossible, not the other way around. In other words, crimes (harms of man against man) exist outside of religion, not because of religion. They are civil matters not religious ones. The best description of this view comes from one of Madison’s allies in the fight to disestablish religion, the fiery Baptist leader John Leland:

“What leads legislators into this error [religious establishments], is confounding sins and crimes together-making no difference between moral evil and state rebellion: not considering that a man may be infected with moral evil, and yet be guilty of no crime, punishable by law. If a man worships one God, three Gods, twenty Gods, or no God-if he pays adoration one day in a week, seven days, or no day-wherein does he injure the life, liberty or property of another? Let any or all these actions be supposed to be religious evils of an enormous size, yet they are not crimes to be punished by the laws of state, which extend no further, in justice, than to punish the man who works ill to his neighbor.” (60)

Crimes of man against man are within the jurisdiction of the civil state. Thus, there is no need for “further refinement” of Madison’s definition of religion. He meant what he said, “Religion is wholly exempt from its [civil society’s] cognizance.” (italics mine) Neither Madison’s nor the dissenters’ position support the originalist implications Esbeck has asserted for it.

There is evidence that Madison would have rejected Esbeck’s demarcation that allows government funding for “social welfare” programs to be carried into effect by religious bodies. (61) As president Madison vetoed a bill that would have incorporated the Episcopal Church in Alexander in part because it would have given it the “authority to provide for the support of the poor and the education of poor children of the same, and authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty.” (62) Thus, Madison would not be in favor of social welfare programs that provide funds to religious organizations to carry out what he sees as a public duty. In the Memorial Madison denounces the use of religion “as an engine of Civil policy.” (63)

A major part of Esbeck’s mission is to find support for his church autonomy doctrine, hence his assertion that motive to disestablish religion was driven by the desire to “protect the churches from the state,” but not the other way around. (64) This doctrine, Esbeck insists, is important, otherwise “civil society will lose organized religion as a check and limit on the pretensions of Caesar. And that would surely lead to a more authoritarian state.” (65) This seems to be more of an article of faith on Esbeck’s part than an empirically verified fact. There is ample evidence on the other hand that the influence of organized religion on governments has led to ecclesiastical tyranny, which is exactly why Madison and the religious dissenters wanted to sever the ties between religion and the government rather than simply preventing the state from intruding into the sphere of the church. In addition to protecting rights, the goal was to protect both religion and government from the corrupting influences that inevitably arise the more they mix together. Madison raises this issue in the Memorial: “What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.” (66) During his retirement Madison even warned about “the danger of encroachment by Ecclesiastical Bodies” as could been seen in precedents already established. Troublingly this had occurred even granting the fact that “the separation between Religion & Govt. in the Constitution of the United States” is “[s]trongly guarded.” (67) In a letter to Robert Walsh, Madison reflected on the disestablishment of religion in Virginia and reports, “The Civil Govt, tho’ bereft of everything like an associated hierarchy, possesses the requisite stability and performs its functions with complete success, Whilst the number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” (68)

In the Memorial, Madison never mentions churches, much less church autonomy. But we do know that he believed that they should be free to govern themselves, but that is a far cry from the church autonomy doctrine advocated by Esbeck which sees “the church” as an independent center of power on par with the state. Esbeck wants to free religious organizations from regulatory oversight even while receiving public funds. (69) He was after all, as Lew Daly has noted, the “brainchild” of the Charitable Choices program that sought to increase the share of funding from federal welfare programs for religious entities while minimizing government oversight of those entities. (70) In support of this practice he has argued that the “no-aid” principle of strict separation is “misguided” and incompatible with “historic separation” (i.e. structural separation). (71) To bar religious bodies would, according to Esbeck, be a sign of “hostility” toward religion. This refrain about hostility to religion is common on the right, but it is an imaginary slight born of modern political strategies and belied by the very history that Esbeck relies on for his work. Those who fought so doggedly to separate religion from government were pious religious dissenters who sought to maintain the purity of religion. They understood the corrupting influence of state support, as this Baptist petition against religious assessments explains: “The consequence of this is, that those whom the State employs in its service, it has a right to regulate and dictate to; it may judge and determine who shall preach, where they shall preach, and what they must preach.” (72) Madison agreed. Years later, after observing the fruits of his efforts in Virginia, he noted, “it is impossible to deny that Religion prevails with more zeal, and a more exemplary priesthood than it ever did when established and patronized by Public authority…[and] that Religion flourishes in greater purity, without than with the aid of Govt.” (73) It is about the purity of religion, not hostility to it.

Esbeck thinks he can get around Madison’s obvious “no-aid” principle by claiming that Madison objected to the proposed assessment only because it was “a special tax earmarked for religion, [and] nothing more.” By tying the tax to “the monetary support of religion,” Esbeck explains, it created a “causal link” between the taxpayer and support for religion thus making it a burden on the taxpayers’ conscience. The only evidence that he presents in support of this conclusion is an out of context quote which states, “the same ‘authority which can force a citizen to contribute three pence only of his property for the support of any one establishment,’ may force him to conform to any other establishment in all other cases.” (74) (the internal quotation marks enclose the portion quoted by Esbeck) The point Madison was making was that if the assessment was enacted it would set a precedent that could then be used to create any establishment. He queried, “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” The statement is a warning about setting bad precedents in violation of a principle, not a statement about special ear-marked taxes. The claim is made even more absurd by the fact that there is no evidence anywhere to support it.

While Madison did not specifically address the issue of churches, or organized religion, it is clear that they needed to maintain their independence by forgoing all ties from the state including public funding. But Madison did not support anything like Esbeck’s church autonomy doctrine which envisions organized religion as an authority on par with the state, but without the limitations on its reach. Madison understood that protecting religious rights required a full disestablishment that limited both church and state from intruding into the others sphere. To allow churches to influence the state is to invite the type of majoritarian tyranny that he was fighting against. In his retirement he explicitly warned against “[t]he danger of silent accumulations & encroachments by Ecclesiastical bodies” that were already evident in his day. (75) And if the civil authorities are barred from legislating on the subject of religion, then religious bodies must be denied the opportunity to use the law for religious ends.

The idea of limiting the church was shared by others including Locke who wrote that since the authority of the clergy “is ecclesiastical, it ought to be confined within the bounds of the church, nor can it in any manner be extended to civil affairs; because the church itself is a thing absolutely separate and distinct from the commonwealth.” (76) This view was shared by religious dissenters. In his sermon pleading for the separation of religion and government, the Baptist elder Samuel Stillman asserted: “This kingdom [Christianity] does not in any respects interfere with civil government…” (77)

Esbeck’s church centric claim also ignores the fact that those opposed to establishments were just as concerned about the integrity of the state, which had often been corrupted by the church, as this anti-establishment petition highlights: “[t]he Church and the State are two societies, and in their natures and designs, as different as Heaven and earth. And to unite them in one, is greatly to injure, if not utterly to ruin both together.” (78) Madison also warned of such consequences in the Memorial where he noted that established clergy had often been “convenient auxiliaries” for “[r]ulers who wished to subvert the public liberty.” He repeated similar refrains throughout his life: “Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst… Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.” (79) This view in not compatible with Esbeck’s voluntaryism.

Esbeck’s interpretation, having been built upon a foundation of obfuscation, omission, and rhetorical slights of hand, has been found wanting. Instead, a different focus emerges from the Memorial, namely that establishments of any kind are incompatible with the rights of conscience. This view was shared by the dissenters whose position is best expressed by the Baptist David Barrow: “That all religious tests, and ecclesiastical establishments, are oppressive, and infringe on the rights of conscience.” (80) To bracket off “the free exercise of religion” from the no-establishment principle is to misunderstand how the anti-establishmentarians saw the relationship between the two. Establishments stood in opposition to the free exercise of religion, thus they had to go.

Foundational to Madison’s rights-focused anti-establishment views was the principle of equality. It was, after all, Madison’s equality language that made the sixteenth article of the Declaration of Rights a mandate for disestablishment. This change, according to Madison, transformed the article into a statement “declar[ing] the freedom of conscience to be a natural and absolute right.” (81) And as a natural right it belongs to everyone equally, thus this principle underpins much of the Memorial.

While references to “equal and compleat liberty” are sprinkled throughout the document, the main focus of Madison’s fourth objection is that “the Bill violates that equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached.” Referencing Article 1 of the Declaration of Rights, Madison continues, “If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights.” (82) This article further reinforces the demand for equality found in Article 16, which Madison also quotes: “Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’” (italics in original) Note that Madison’s slightly altered rendition of the article emphasizes “equal.” Given that the assessment bill did not live up to this standard it was unconstitutional.  

Without equal enjoyment of the right of free exercise, the majority will be able to impose its dogmas on others. In pleading for equality, Madison invoked a version of the Golden Rule: “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.” The tendency to see one’s own beliefs as superior and attempt to secure those beliefs via the power of the state, even in republics, was the driving force of ecclesiastical tyranny. Hence Madison’s concern with “overbearing majorities.” Madison was trying to convince his colleagues that they should grant others the same right that they themselves cherished.

The bill also violated the principle of equality in two main ways. First it violates this principle “by subjecting some to peculiar burdens,” namely those who would be excluded (i.e. non-Christians). But also, those whose consciences objected to coerced support for religion, even their own. Madison did not explicitly explain this in the Memorial, but he did object to all state-mandated support of religion. The dissenters, borrowing from Jefferson’s Statute for Religious Freedom, were more explicit. They insisted, “That to Compel a Man to furnish Contributions of money for the Propagation of opinions which he disbelieves and abhors is Sinful & Tyrannical; That even the forcing him to Support this or that Teacher of his own religious persuasion is depriving him of the Comfortable Liberty of giving his contributions to the Particular pastor whose morals he would make his Pattern. (83)

The bill also violated the principle of equality by “granting to others peculiar exemptions.” Those who drafted the legislation were keen to gain broad support for the bill and thus sought to accommodate Quakers and Mennonites. This complaint peaked the ire of the dissenters as well as this Baptists petition illustrates: 

“That the indulgence grants to Quakers, and Menonists, is a partiality which our [?] cannot be well accounted for. It is an open offense; and in its native tendency will if imposed on this state, prove injurious to the peace, and tranquility of a people, who justly respect the enjoyment of equal privileges, according to the Bill of Rights, which we still esteem as the Basis of any present happy constitution.” (84)

The same appeal to equality underpins their objection to the exemption. Madison similarly decried the “extraordinary privileges” these sects were to be given. It gave them an unfair advantage by giving them a tool to “entice” others to join their sects. As expected, the Quakers denounced the bill on the grounds that it was contrary to their religion and “an infringement of Religious and Civil Liberty established by the bill of Rights.” (85) They all agreed, the proposed assessment was a clear breach of the equal religious rights laid down in the Declaration of Rights.

Madison’s concluding objection brings home the message that the bill was a threat to the rights that Virginians were entitled to. He once again quotes the key section of Article 16 along with a slightly altered quote from the preamble of the Declaration to conclude that “if we consult the ‘Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of Government’” we will find that the right of free exercise is “enumerated with equal solemnity” as all of the other rights in it. (86) Always concerned about precedents, he feared that if they could downgrade this right they could then “sweep away all our fundamental rights.” Thus, he begged them to “leave this particular right untouched and sacred.” He reminded his colleagues that they “have no authority to enact into law the Bill under consideration,” and that they, the “Subscribers” of the petition, were opposed to “so dangerous an usurpation.” The fight against the religious establishment in Virginia demonstrates that the free exercise of religion is not divorced from establishment concerns, but rather its protection demands that the state be barred from legislating on the subject of religion (i.e., establishing religion by law). (87)

Esbeck’s interpretation is compelling only if one forgoes reading the document. There is no getting around the fact that Madison’s main objection to the proposed establishment was its threat to the equal rights of all citizens. During his retirement Madison reflected on these events and the passage of Jefferson’s Bill for Establishing Religious Freedom in the wake of their victory against the assessment bill. He wrote that Jefferson’s statute “enacted into a permanent barrier against Future attempts on the rights of conscience as declared in the Great Charter prefixed to the Constitution of the State [i.e. the Declaration of Rights].” (88) (italics mine) Protecting those rights requires that religion be “wholly exempt from its [civil society’s] cognizance.” This is also how he understood the First Amendment. To him, it was meant to guard “the separation between Religion & Govt,” which he viewed as necessary in order to protect the rights of conscience. (89)

Esbeck’s Madison is the result of shoddy scholarship, which characterizes much of the originalist history written by legal scholars. Whether Esbeck knowingly distorted the historical record or not is debatable, but there is no doubt that he did so. Many legal scholars take history more seriously and make a serious effort to get the history right, but the temptation to create a politically useful past is great and the abundance of such scholarship gives advocates and Supreme Court justices intellectual respectability for politically motivated interpretations of the Constitution. Originalism was supposed to constrain justices from injecting their own biases and opinions into their decisions. Instead, it has encouraged personal preferences to guide interpretation, all while pretending to be objective actors who are simply declaring historical truths. As legal scholar Eric Berger observes “originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty.” (90) The “illusion” is compelling, especially for those who want to believe it, but it is simply that an illusion. We can have reasonable debates about how strict Madison’s strict separationism is, but he cannot be made into something he clearly was not: a proponent of Esbeck’s voluntaryism. If he wants to advocate for that idea as a better church-state settlement he will have to do it without the help of Madison.

Works Cited

1) Robert Post & Reva Siegel, “Originalism as Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006): 573; Andrew Koppelman, “Phony Originalism and the Establishment Clause,” Northwestern University Law Review 103, no. 2 (2009): 729.

2) Carl H. Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power,” Iowa Law Review 84 (1998): 3.

3) Carl H. Esbeck and J. Den Hartog, eds., Disestablishment and Religious Dissent: Church-State Relations in the New American States 1776-1833 (Columbia, 2019); Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004): 1384-1592; “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” Georgetown Journal of Law & Public Policy 7 (2009): 51-103. For his originalist take on the First Federal Congress see Carl H. Esbeck, “The First Federal Congress and the Formation of the Establishment Clause of the First Amendment,” 208-251 in T. Jeremy Gunn & John Witte, Jr., eds., No Establishment of Religion: America’s Original Contribution to Religious Liberty (New York, 2012), 208-251.

4) Esbeck, “Dissent and Disestablishment,” 1393 and 1396.

5) Esbeck, “Dissent and Disestablishment,” 1590.

6) Esbeck and Hartog, eds., Disestablishment and Religious Dissent, 154.

7) For a list showing the extent of the influence of Jefferson’s Statute of Religious Freedom and Madison’s Memorial and Remonstrance see John Ragosta, Religious Freedom: Jefferson’s Legacy America’s Creed (Charlottesville, 2013), 256-258n12.

8) Esbeck and J. Den Hartog, eds., Disestablishment and Religious Dissent; Esbeck, “Dissent and Disestablishment.”

9) Esbeck, “Dissent and Disestablishment,” 1395.

10) Carl H. Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power,” Iowa Law Review 84 (1998): 1-113 (quotation on 3).

11) Esbeck, “Protestant Dissent,” 54n8.

12) Esbeck, “The Establishment Clause,” 10-11.

13) Esbeck, “The Establishment Clause,” 13 and 9.

14) Esbeck, “Dissent and Disestablishment,” 1398.

15) Esbeck, “The Establishment Clause,” 12.

16) Esbeck, “The Establishment Clause,” 10-11.

17) Esbeck, “Dissent and Disestablishment,” 1589.

18) “To Thomas Jefferson from Rev. John Todd, 16 August 1779,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-03-02-0077. [Original source: The Papers of Thomas Jefferson, vol. 3, 18 June 1779 – 30 September 1780, ed. Julian P. Boyd. Princeton: Princeton University Press, 1951, pp. 68–69.]

19) James Madison, “Memorial and Remonstrance against Religious Assessments, [ca. 20 June] 1785,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-08-02-0163. [Original source: The Papers of James Madison, vol. 8, 10 March 1784 – 28 March 1786, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1973, pp. 295–306.]

20) “From James Madison to William Bradford, 24 January 1774,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0029. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 104–108.]

21) “From James Madison to William Bradford, 1 April 1774,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0031. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 111–114.]

22) “The Virginia Declaration of Rights,” National Archives online, June 12, 1776.  The Virginia Declaration of Rights | National Archives

23) “Madison’s Amendments to the Declaration of Rights, [29 May–12 June 1776],” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0054-0003. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 174–175.]

24) Memorial of the Hanover Presbytery, October 24, 1776, Library of Virginia: Digital Collections. 

25) The petitions can be accessed through the Library of Virginia’s Digital Collections, Virginia Memory – Legislative Petitions Digital Collection; hereinafter cited as Virginia Memory. “Queries on the subject of religious establishments,” Virginia Gazette Purdie (November 8, 1776), 1; “The sentiments of the several companies of militia and freeholders of Augulla, in Virginia..,” Virginia Gazette Purdie (October 18, 1776), 1, Virginia Gazettes | The Colonial Williamsburg Official History & Citizenship Site.

26) Thomas Jefferson, “Rough Draft of Jefferson’s Resolutions for Disestablishing the Church of England and for Repealing Laws Interfering with Freedom of Worship,” (written between October 11 and November 19, 1776), quoted in The Papers of Thomas Jefferson Digital Edition, vol. I, ed. Barbara B. Oberg and J. Jefferson Looney (Charlottesville: University of Virginia Press, Rotunda, 2008-2014), 530.

27) Ragosta, Religious Freedom, 65.

28) Hanover Presbytery petition, Timber Ridge (presented to the House June 3, 1777), Virginia Memory.

29) “Declaration of the Virginia Association of Baptists, [25 December 1776],” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-01-02-0249. [Original source: The Papers of Thomas Jefferson, vol. 1, 1760–1776, ed. Julian P. Boyd. Princeton: Princeton University Press, 1950, pp. 660–661.] This petition was published in the Virginia Gazette (Dixon & Hunter) on March 28, 1777.

30) “A Bill concerning Religion” (1779) reprinted in Thomas E. Buckley, S.J., Church and State in Revolutionary Virginia 1776-1787 (Charlottesville, 1977), Appendix I: 186.

31) Buckley, Church and State, 100-1.

32) Madison’s Memorial garnered 1,552 signatures. The most popular petition boasted twenty-nine copies with 4,899 signatures (Founders Online “Memorial,” editorial note).

33) Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond, 1810), 33.

34) Esbeck maintains that the Free Exercise Clause is “regarded as a right vesting in each individual the ability to resist many government-imposed burdens on his religion,” and that the Establishment Clause is “regarded as an aspect of the Constitution’s overall structure of limited government, policing the boundary between civil authorities and organized religion.” (“Dissent and Disestablishment,” 1389)

35) Esbeck, “Protestant Dissent,” 53.

36) “Madison’s Amendments to the Declaration of Rights.”

37) Esbeck, “Protestant Dissent,” 82; Disestablishment and Religious Dissent, 154.

38) Esbeck, “Protestant Dissent,” 82n134.

39) In his summary of Madison’s eleventh point Esbeck also ignores this passage: “Torrents of blood have been split [sic] in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.”

40) Madison, Memorial & Remonstrance.

41) Phillip Furneaux, An Essay on Toleration: With a particular View to the Late Application of the Protestant Dissenting Ministers to Parliament, for Amending, and rendering Effectual, the Act of the first of William and Mary, commonly called the Act of Toleration (London: 1773), 12-13.

42) “From James Madison to William Bradford, 28 July 1775,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-01-02-0050. [Original source: The Papers of James Madison, vol. 1, 16 March 1751 – 16 December 1779, ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 159–162.]

43) Esbeck, Disestablishment and Religious Dissent, 154.

44) “From James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218. [Original source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 295–300.]

45) “Vices of the Political System of the United States, April 1787,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-09-02-0187. [Original source: The Papers of James Madison, vol. 9, 9 April 1786 – 24 May 1787 and supplement 1781–1784, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1975, pp. 345–358.]

46) “From James Madison to George Washington, 16 April 1787,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-09-02-0208. [Original source: The Papers of James Madison, vol. 9, 9 April 1786 – 24 May 1787 and supplement 1781–1784, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1975, pp. 382–387.]

47) Carl H. Esbeck, “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999): 303n55.

48) For Madison’s more developed ideas on the role of majorities see his “Vices of the Political System of the United States” (April 1787).

49)“James Madison to George Mason, 14 July 1826,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/99-02-02-0705. [This is an Early Access document from The Papers of James Madison. It is not an authoritative final version.]

50) Esbeck, Disestablishment and Religious Dissent,155.

51) Ibid.

52) Ibid.

53) “From James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218. [Original source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 295–300.]

54) Esbeck, Disestablishment and Religious Dissent, 155.

55) Esbeck, Protestant Dissent, 82.

56) When it comes to the Establishment Clause of the First Amendment Esbeck suggests that “any definition for no-establishment purposes has to be narrow in order not to overturn social welfare and moral-based legislation.” (“The Establishment Clause,” 9)

57) Esbeck, Disestablishment and Religious Dissent, 155.

58)  Esbeck, “The Establishment Clause,” 113.

59) John Locke, A Letter Concerning Toleration (1689 version, Buffalo, 1990), 51.

60) John Leland, “The Yankee Spy: Calculated for the Religious Meridian of Massachusetts, But will Answer for New Hampshire, Connecticut, and Vermont, without any Material Alterations,” in John Leland and L.F. Greene, The Writings of the Late Elder John Leland: Including Some Events in His Life (New York, 1835), 215-229 (quotation on 221). See also Isaac Backus, A Door Opened For Equal Christian Liberty, And no Man can shut it (Boston, 1783), 14: “Reason and revelation agree, in determining that the end of civil government is the good of the governed, by defending them against all such as would work ill to their neighbours; and in limiting the power of rulers there. And those who invade their religious rights of others, are selfcondemed, which of all things is the most opposite to happiness, the great end of government…”

61) Esbeck, “The Establishment Clause,” 9.

62) “From James Madison to the House of Representatives, 21 February 1811,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/03-03-02-0233. [Original source: The Papers of James Madison, Presidential Series, vol. 3, 3 November 1810–4 November 1811, ed. J. C. A. Stagg, Jeanne Kerr Cross, and Susan Holbrook Perdue. Charlottesville: University Press of Virginia, 1996, pp. 176–177.]

63) Madison, Memorial & Remonstrance, point # 5.

64) Esbeck, “Protestant Dissent,” 53.

65) Ibid., 103.

66) Madison, Memorial & Remonstrance, point # 8.

67) In Elizabeth Fleet, “Detached Memoranda,” The William and Mary Quarterly, Third Series, Vol. 3, No. 4 (October 1946), 555.

68) “From James Madison to Robert Walsh Jr., 2 March 1819,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/04-01-02-0378. [Original source: The Papers of James Madison, Retirement Series, vol. 1, 4 March 1817 – 31 January 1820, ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Anne Mandeville Colony. Charlottesville: University of Virginia Press, 2009, pp. 427–432.]

69) Esbeck, “Myths, Miscues, and Misconceptions,” 305.

70) Lew Daly, God’s Economy: Faith-Based Initiatives & the Caring State (Chicago, 2009), 53.

71) Esbeck, “Myths, Miscues, and Misconceptions,” 288n13.

72) “Declaration of the Virginia Association of Baptists, [25 December 1776],” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-01-02-0249. [Original source: The Papers of Thomas Jefferson, vol. 1, 1760–1776, ed. Julian P. Boyd. Princeton: Princeton University Press, 1950, pp. 660–661.] Also published in the Virginia Gazette, Dixon & Hunter (March 28, 1777).

73) “From James Madison to Edward Livingston, 10 July 1822,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/04-02-02-0471. [Original source: The Papers of James Madison, Retirement Series, vol. 2, 1 February 1820 – 26 February 1823, ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Anne Mandeville Colony. Charlottesville: University of Virginia Press, 2013, pp. 542–545.]

74) Esbeck, “Protestant Dissent,” 90.

75) Elizabeth Fleet. “Detached Memoranda,” The William and Mary Quarterly 3, no. 4 (October 1946): 534-568 (quotation on 554).

76) Locke, Letter Concerning Toleration, 32.

77) Samuel Stillman, A Sermon Preached Before the Honorable Council, and the Honorable House of Representatives of the State of Massachusetts-Bay… May 26, 1779 (Boston, 1779), 27.

78) Quoted in Buckley, Church and State, 75. Other examples include: The Baptist minister Caleb Blood who disagreed with to “those, who wish for religious establishments by law; which never fail of pernicious consequences both to church and state.” Caleb Blood, A Sermon Preached Before the Honorable Legislature of the State of Vermont…October 11th, 1792 (1792), 27; and inGeorgia the attempt to enact a tax for the support of religion encountered opposition from Baptists who feared that “the late Act for the regular establishment and support of religion will be so far from subserving the interests of the Church or State, as perhaps, the framers might design that it will, if carried into execution, be injurious to both.” (Petition from the Baptist Association who “met at the Kiokee meeting house, the 16th of May, 1785, quoted in History of the Baptists Denomination in Georgia… [Atlanta, 1881], 262.)

79) “From James Madison to Edward Livingston, 10 July 1822.”

80) David Barrow, “Circular Letter, Southampton County, Virginia; February 14, 1798” printed in Carlos R. Allen, Jr., “David Barrow’s Circular Letter of 1798,” The William and Mary Quarterly 20, no. 3 (July 1963): 440-451 (quotation on 448).

81) “James Madison: Autobiographical notes, December 1830,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/99-02-02-2230. [This is an Early Access document from The Papers of James Madison. It is not an authoritative final version.]

82) Madison, Memorial & Remonstrance, point # 4.

83) Petition of the Powhatan, Baptist Association meeting of August 13, 1785; and the petitioners of the county of Northumberland, November 28, 1785 at Virginia Memory.

84) November 17, 1785, Orange, Baptist Association meeting on September 17, 1785, against assessment bill.

85) Petition of the Virginia Quakers, November 14, 1785 (two petitions. almost identical) at Virginia Memory.

86) The original reads: “A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to us, and our posterity, as the basis and foundation of government.” (“The Virginia Declaration of Rights”)

87) See also Debra Neill, “The Disestablishment of Religion in Virginia: Dissenters, Individual Rights, and the Separation of Church and State,” Virginia Magazine of History & Biography 127, no. 1 (2019); Ellis M. West, The Free Exercise of Religion in America: Its Original Constitutional Meaning (2019); and John A. Ragosta, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution & Secured Religious Liberty (Oxford University Press, 2010).

88) “James Madison to George Mason, 14 July 1826,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/99-02-02-0705. [This is an Early Access document from The Papers of James Madison. It is not an authoritative final version.]

89) Madison, “Detached Memoranda,” 555.

90) Eric Berger, “Originalism’s Pretenses,” University of Pennsylvania. Journal of Constitutional Law 16, no. 2 (2013-2014): 329-368 (quotation on 331).

Can those engaged in “expressive” endeavors such as making cakes be exempted from anti-discrimination laws which run contrary to their sincerely held religious beliefs? The Supreme Court failed to address the fundamental constitutional issues raised by this question in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The baker in this case, Jack Phillips, claimed that to force him to bake a cake for a same-sex couple violated his right to free speech and the free exercise of his religion. These claims were never addressed by the Court. Justice Anthony Kennedy, as the swing vote was in a bind. If he voted in favor of Phillips, he would have endorsed religiously-motivated discrimination. But if he ruled against Phillips he would have dealt a blow to religion, as he saw it. So, instead he sidestepped the core issue and charged Colorado’s Civil Rights Commission with violating Phillips’ rights by failing to act in accordance “with the State’s obligation of religious neutrality.” (1) While not the ruling Phillips and his supporters were hoping for, they nevertheless celebrated the decision. This celebratory reaction was more than a simple display of confidence; there were actually good reasons to declare victory. Having failed to address Phillips’ constitutional claims, the Court left the door open to bring them up for review once again, possibly in more favorable conditions (i.e. a new Supreme Court justice more favorable to their case). In addition, Kennedy’s ruling gave the religious a weapon to further erode the barriers that divide religion and government. In other words, the seemingly tempered ruling actually established a precedent that could potentially have far reaching consequences. It also reveals more troubling trends in First Amendment jurisprudence that are posed to further erode the barriers which actually protect the equal religious liberty that we so cherish.

Relieved that the Court punted on the issue of religiously-motivated discrimination, many on the left failed to see the radical implications of this “kick the can down the road” decision. The implications were not lost on everyone, however. The constitutional scholars Douglas Laycock and Thomas Berg immediately recognized the significance of Kennedy’s reasoning:

The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise. (2)

The implications of this “ideal” are troubling. Any hint of “hostility” in the creation or enforcement of generally applicable laws could be used to invalidate laws and/or their enforcement. This is not the first time the charge of hostility has been used to discredit laws, and even constitutional principles such as separation, as breaches of constitutionally required neutrality. A review of the Masterpiece ruling reveals some of the problems with the application of the neutrality principle as well as other troubling trends in First Amendment jurisprudence. The barriers that were erected to protect religious liberty are being slowly being dismantled by a conservative court bent on tearing down those prudent barriers.

The 5-4 decision in Masterpiece rests on a breach of neutrality by Colorado’s Civil Rights Commission when first determining whether or not Jack Phillips violated the state’s anti-discrimination law. Kennedy relies on two lines of evidence to make his case. The most substantial piece of evidence comes from a series of other baker-related rulings made by the Commission. In contrast to Phillips, the Commission ruled in favor of the bakers in three other similar cases, which according to Kennedy prove that the Commission was biased against Phillips and his beliefs. Critics of the decision have pointed out the important distinctions between these cases that make them invalid as points of comparison. (3) Having focused on this more substantial line of evidence, few have examined the statements from the member(s) of the Commission which supposedly confirm that the Commission failed to treat Phillips with the neutrality required by the Free Exercise Clause. In terms of evidence these statements seem trivial, which is why the focus has been on the comparison between the bakers’ cases. Most critiques dismiss the statements as irrelevant since they were a few comments made by at most two individuals in a much broader enterprise that involved many other “independent decisionmak[ers].” (4) This in and of itself should have invalidated the use of the comments, but having used them as evidence of hostility towards religion in a Supreme Court decision, their content matters. They have become examples of impermissible “hostility” towards religion. They are also exemplary of broader trends in First Amendment jurisprudence that rest on the abuse of history and language, therefore a review of the substance of these statements is a worthwhile endeavor.

Kennedy included three statements that supposedly expose the Commission’s hostility towards religion in general and Phillips’ religious beliefs in particular. The first two statements were made at a public hearing held on May 30, 2014, and, according to Kennedy, they show that the “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” (5) This damning conclusion is hard to square with the modest statements made by a particular commissioner.

This is Kennedy’s rendering of the first comment: “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” (5) Compare this to the full recorded statement:

I don’t think the act [Anti-Discrimination Act] necessarily prevents Mr. Phillips from believing what he wants to believe. And – but if he decides to do business in the state, he’s got to follow (inaudible). And I don’t think the Act is overreaching to the extent that it prevents him from exercising his free speech. (6)

The inaudible section is most certainly “the law” as is consistent with his earlier statements (e.g. “any person that chooses to do business in the state of Colorado has to recognize that they have to conduct business in an ethical and law-abiding way.”). (7) Notice how Kennedy’s addition of the phrase “but cannot act on his religious beliefs” takes the innocuous statement and turns it into something more menacing. It implies that this particular commissioner was broadly opposed to religion in the public square, rather than just opposition to actions that are against the law. To express support for the idea that businesses and their employees should follow the law, even when they disagree with it, is not controversial and it is certainly not an expression of hostility towards religion. If there is any hostility in the statement it is towards breaking the law.

The second statement made by the same commissioner is similarly mischaracterized by Kennedy. The full statement is longer and more nuanced than the first, but rather than quoting the statement in full, as would have been appropriate in this case, Kennedy pulls out a single sentence: “‘[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.’” (5) Maybe “compromise” was not the best word to describe the forbearance required in a religiously diverse society that supposedly respects the rights of everyone equally, but the idea he is conveying is not controversial, which is why, to Kennedy’s consternation, neither the other commissioners nor the “later state-court ruling” disavowed the statements. (5) Looking at the above quote in context we can see that this statement was an attempted paraphrase of Justice Chavez’s ruling in “the New Mexico case” (8) (i.e. Elane Photography v. Willock, 2013). This commissioner was saying nothing more than what the Justice from the New Mexico Supreme Court stated, even if he articulated the Justice’s ideas unartfully. In other words, whatever their personal religious beliefs, businesses serving the public must follow the law.

Recognizing that his interpretation of these statements is a bit of a stretch, Kennedy concedes that they “might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” (5) But he ultimately rejects this obvious and commonsense interpretation in favor of an interpretation that presents them as “inappropriate and dismissive comments showing lack of due consideration for Philips’ free exercise rights and the dilemma he faced.” (5) A comment made at a July 25 meeting convinced Kennedy that these statements were not innocent expressions of the logic behind anti-discrimination laws.

This is the statement that Kennedy portrays as “disparaging Phillips’ beliefs”:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others. (5)

Kennedy follows this with this assertion: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” (5) Notice how Kennedy reframed the statement as one “describe[ing] a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use.’” This commissioner, said no such thing. Instead, he was making the point that religion has all too frequently been used as an excuse to engage in horrible acts. History is littered with such examples. And it was this history that galvanized the movement toward toleration and eventually religious liberty. It was not faith in general but the use of religion to harm others that this commissioner found despicable. Whether or not the commissioner believed that Phillips’ religious claim was “merely rhetorical” is beside the point since he was speaking in general and he had no way of knowing whether or not the beliefs were sincerely held or not.

It is hard to see how the above statements demonstrate impermissible hostility towards religion in general, or Phillips’ religious beliefs in particular. The use of an ill-defined standard such as “hostility” is a formula for abuse. It is questionable whether or not hostility (as opposed to actual discrimination) is forbidden by the Constitution, but before turning to this question let’s review how this standard has been used, and abused, in First Amendment jurisprudence.

The use of the rhetoric of “hostility” is a byproduct of what is known as the neutrality principle, which holds that government cannot favor one religion over another, religion over non-religion, or vice versa. There is a case to be made against the neutrality principle in general, or at least in the way it has been applied, but here I want to focus only on two aspects of its application. First, is the application of the “hostility” standard. Second, the conflation of religion in general with specific religions. This conflation is significant since it has allowed the Court to bypass the Establishment Clause’s mandate to treat religion differently.

The language of hostility arose in conjunction with the so-called neutrality principle, first deployed in a significant way in several cases in the 1960s. (9) The neutrality principle has been championed by those who see it as more accommodating to religion than the principle of separation. For example, in Allegheny v. ACLU (1989) Justice Kennedy dissented against the majority that found a holiday display at the county court house in Pittsburg unconstitutional, arguing that their “view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding.” (10) Several years later in Rosenberger v. University of Virginia, he ruled that the University of Virginia violated the free speech rights of a student publication when it denied them funds from the Student Activities Fund because of their Christian “viewpoint.” Notice how he reframed the issue by identifying the group not as religious but as just another viewpoint protected speech under the Free Exercise Clause. But he still had to get around the Establishment Clause’s ban on public funding of religion. Here’s where the neutrality principle came in handy. He argued that a denial of funds to those simply presenting a religious viewpoint “risk[ed] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.” (11) (italics mine) While clever, it is a betrayal of the founders’ rights-protecting scheme.

The religious dissenters who fought so hard to disestablish religion during and after the Revolution would be shocked to hear of such a claim. In the fight against a proposed religious assessment in support of teachers of the Christian religion, several dissenters’ petitions repeated Jefferson’s phrase: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” (12) The assessment was soundly defeated, and Jefferson’s Statute for Establishing Religious Freedom was passed in its stead. It was this spirit of disestablishment that lead to the creation and enactment of the Religious Clauses of the First Amendment. To single out religion for special treatment is what makes religious freedom possible. To call this special treatment “hostility” is a betrayal of the legacies of those who fought so hard to disestablish religion and the religious liberty that it was meant to protect.

In a scathing critique of the Courts decision, Winnifred Fallers Sullivan mockingly pointed out that “’[p]reaching the word’ is not speech. It is religion.” He continued, “To treat religion as speech was a clever lawyer’s ploy, and it carried the day in Rosenberger. But something was lost in the process. To efface the difference is to forget history. The dissenters in Rosenberger want to hold onto the difference that religion makes. For them, our public language and our historic commitment to the difference that religion makes is enshrined in the First Amendment.” (13)

This same specious reasoning has become pervasive in conservative constitutional law circles, usually aimed at the principle of separation. Carl H. Esbeck’s statement is typical: “A separation of government from all that is arguably religious (or arguably has a religious foundation) would result in a secular public square, one that is hostile rather than neutral to the influence of religion on society.” (14) A demand for neutrality and equal treatment for religion has already done great harm to the protections established in the First Amendment meant to protect religious freedom, but another devastating blow to the wall of separation is already in the works. After Zelman v. Simmons-Harris (2002) opened the doors to public funding of religious institutions at the federal level as long as money goes to the individual first, the only real obstacle blocking school vouchers has been what are called “Baby Blaines” (state constitutional provisions that ban public funding of religious institutions). Hence there has been a concerted effort to destroy them. (15)

This effort got a big boost last year in Trinity Lutheran v. Comer. In 2012 Missouri’s Department of Natural Resources denied Trinity Lutheran’s Child Learning Center funding as part of their grant program because the state’s constitution banned transfers of public funds to religious entities. Having lost in the lower courts, the church appealed to the Supreme Court, where those rulings were overturned. Chief Justice John Roberts writing for the majority charged the state of Missouri with “discrimination” because it denied the church public funds “solely because it is a church.” (16) To pull this off Roberts had to elide important distinctions of language. Roberts did not use the language of “hostility” to describe the treatment of the church, instead he called it “discrimination.”

The first deceptive maneuver was to use one form of unconstitutional “discrimination” (treating a particular group differently out of prejudice) to declare a constitutional type of “discrimination” (discerning things that belong in the category religion) unconstitutional. Roberts’ argument also rests on another casual use of language. The Missouri Constitution bans public funding “directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such.” In other words, it bans public monies to religious entities (i.e. all religion). But the precedent he turned to (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) involves the discriminatory treatment against members of a particular religion (Santeria). Conveniently, Kennedy in Lukumi made this conflation possible. He worded the ruling in such a way that it failed to distinguish between religion in general and a particular religion:

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights its secures. …Legislators may not devise mechanism, overt or disguised, designed to persecute or oppress a religion or its practices. (17) (italics mine)

In this scheme, there is no difference between singling out religion as a category from the religious groups that belong to that category. Once this distinction disappears it is easy to declare Missouri’s constitutional mandate to treat all things religious differently as unconstitutional discrimination. A ban meant to bar discriminatory treatment of particular religions or religious denominations, has now become a weapon to get around the barriers in the federal and state constitutions that separate religion from government. (for more detail on this ruling see The Battle for the Wall of Separation) This ruling is supposedly limited to this single situation, however, not all justices in the majority signed on to this limitation.

The stage has now been set to invalidate all state “Baby Blaines,” which is further attached as product of anti-Catholic animus and as such are in violation Establishment Clause’s neutrality principle. (18) Never mind that the principle of no-aid existed long before these little Blaines were enacted, or the fact that not all state bans on public funding of religion were born of anti-Catholic sentiment. (19) The purpose of this attack on these amendments is clear, as Marc D. Stern explains, it “is to invert the traditional church-state debate over aid to religious institutions. In this country, that debate always had been whether a particular form of aid was permissible or forbidden. Under the new approach, the question is whether aid is forbidden as an establishment of religion or mandatory to avoid discrimination against religion.” (20) Both the anti-Catholic and the “discrimination” against religion are likely to be deployed in the next challenge to these state prohibitions, and given the existing precedents and the conservative makeup of the Court, they are likely to succeed in achieving their aims. The Establishment Clause will be reduced to insignificance, a process that began over a decade ago, on the basis of a dubious constitutional principle.

What about the neutrality principle’s companion “hostility”? Does it have any validity as a constitutional principle? Discrimination against particular religious groups such as the Santeria religion are most certainly unconstitutional. This kind of discrimination was one of the primary reasons for the disestablishment of religion. Reflecting on his time in Virginia fighting for religious liberty, the popular Baptist preacher John Leland insisted that “government should protect every man in thinking and speaking freely, and see that one does not abuse another. The liberty I contend for is more than toleration. The very idea of toleration is despicable; it supposes that some have a pre-eminence above the rest to grant indulgence, whereas all should be equally free, Jews, Turks, Pagans and Christians.” (21) To make laws that privilege some over others because of their religious opinions is contrary to the principles of religious liberty, but not toleration. Hence this kind of discrimination should not be tolerated.

But to make hostility, in and of itself, a standard of constitutionality seems absurd. It abridges no one’s ability to practice their religion, and it asks government officials to be robots. In the Lukumi case, if city officials had simply expressed disgust and disapproval of the Santeria religion, but did nothing, or enacted truly generally applicable laws for the purposes of public health, rather than specifically targeting their Church then there would be no breach of the Constitution. Or, conversely, had they said nothing demeaning about that religion but passed ordinances meant to punish the members of that religion it would have been unconstitutional. Statements can be useful, as they were in the Lukumi case, to determine whether or not the ordinances were truly neutral, but the hostile statements themselves should not be unconstitutional. To ask everyone associated with the government to refrain from expressing opinions about certain religions or religious practices is unreasonable and such comments, as horrible as some of them are, are not incompatible with religious liberty. Can you imagine declaring Thomas Jefferson’s Statute for Establishing Religious Freedom null and void because it was born of animosity towards religion? One of the main reasons Jefferson fought so hard to “establish religious freedom” was so that he could say whatever he wanted about religion, most of which was hostile towards it.

Linda Greenhouse’s fear “that the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion” seem well founded. (22) While insignificant in many ways, the Masterpiece ruling reveals a Court gone astray from the principles and purposes of the First Amendment. The dissenters who fought tirelessly to disestablish religion knew all too well the dangers of mixing politics and religion. Their goal of separating religion and government was not a project born of hostility towards religion, but out of a desire to protect religion, as well as the state. After learning of Madison’s veto of a bill providing a land grant to a Baptist Church in the territory of Mississippi on grounds that the support violated the Establishment Clause, two North Carolina Baptist Churches wrote in support of Madison’s decision:

Considering the said affair as proceeding from Some of our Religious Connections and that the Same is not Consistent with the Spiritual Interest of Religion and that the tendency of Such a procedure if perpetuated would inevitably give to Religious Societies an undue weight and Corrupt influence in public affairs at large and diminish Religious enlargement impairing our Civil and Religious liberties and in fine Contaminate our national morals we therefore desire to assure you that we entertain a high Sense of and Confidence in Your Illustrious objection against the Bill wherein we humbly conceive as eminent an Instance of patriotism have displayed as in any occurrence of the kind. (23)

Madison responded in appreciation: “Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself.” (24) It is to this alliance between pious religious dissenters and rationalists like Madison that we owe our legacy of religious freedom to. Knowing all too well the history of religious tyranny, they tirelessly fought to separate religion and government. Their hard work is slowly being undone by those who would ignore the lessons of history. We ignore this history at our peril.

1) Masterpiece Cakeshop v. Colorado Civil Rights Commission, Opinion of the Court, 2.

2) Douglas Laycock and Thomas C. Berg, “Symposium: Masterpiece Cakeshop – not as narrow as may first appear” SCOTUS blog.

3) Masterpiece, Justice Ginsburg’s dissenting opinion (see link above). See also John Corvino, “Drawing a Line in the ‘Gay Wedding Cake’ Case,” The New York Times, (November 27, 2017)

4) Masterpiece, Ginsburg, 7.

5) Masterpiece, Opinion of the Court, 12-14.

6) Joint appendix filed (August 31, 2017), 205.

7) Ibid., 202.

8) Ibid., 207.

9) Arnold H. Loewy, “The Positive Reality and Normative Virtues of a ‘Neutral’ Establishment Clause,” Brandeis Law Journal 41 (2003), 536.

10) Allegheny County v. Greater Pittsburgh ACLU (1989)

11) Rosenberger v University of Virginia (1995)

12) Nansemond County (October 27, 1785) and Northunberland County (November 28, 1785). Library of Virginia: Digital Collection

13) Winnifred Fallers Sullivan, “The difference religion makes: Reflections on Rosenberger,” The Christian Century (March 13, 1996), 294 and 295.

14) Carl H. Esbeck, “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999), 309-10.

15) See Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).

16) Trinity Lutheran v. Comer, Opinion of the Court, 11.

17) Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993.

18) For example see Philip Hamburger, “Prejudice and the Blaine Amendments,” First Things.

19) For a review of this history see Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).

20) Marc D. Stern, “Blaine Amendments, Anti-Catholicism, and Catholic Dogma,” First Amendment Law Review 2 (2004), 153.

21) John Leland, “A Chronicle of His Time in Virginia,” in L.F. Greene, ed. The Writings of the Late Elder John Leland: Including Some Events in His Life (New York: G. W. Wood, 1845, Public Domain Reprint), 118.

22) Linda Greenhouse, “How the Supreme Court Avoided the Cake Case’s Tough Issues,” The New York Times (June 7, 2018)

23) To James Madison from Jesse Jones and Others, 27 April 1811: From Jesse Jones and Others (April 27—1811). Founders Online

24) Madison to the Baptist Churches in Neal’s Creek and on the Black Creek, North Carolina (June 3, 1811). Founders Online