Many were drawn to the on-line symposium The First Amendment and Religious Liberty, featuring chapters from the just published Cambridge Companion of the same name. I especially benefited from essays by Donald Drakeman and Marc DeGirolami. But missing was a chapter on the big event coming this autumn in the U.S. Supreme Court, when the justices will hear argument in Fulton v. City of Philadelphia. The question presented is a reconsideration of Employment Division v. Smith (1990). Smith held that the Free Exercise Clause of the First Amendment does not provide protection from general legislation that does not specifically single out religion, notwithstanding that the law’s impact is to burden the religious practices of a few.
In Smith, Oregon had a list of drugs, the use of which was a felony. On the list was peyote, a naturally occurring hallucinogenic ingested during a sacramental ceremony by men of the Native American Church. As a consequence, the criminalization of peyote came down heavily on a religious observance by those of this sect. Breaking with precedent, the 6 to 3 Court in Smith held this factual setting did not even give rise to a free-exercise claim. The majority did not deny that the claimants suffered religious hardship, but because the state did not set out to cause any such harm, there was no relief under the First Amendment. In Fulton, the City of Philadelphia funds several social-service agencies to help in locating homes for foster children. When authorities learned that Catholic Social Services did not certify homes headed by same-sex couples, the funding was suspended citing the municipality’s nondiscrimination ordinance. A nondiscrimination ordinance is a general law that does not facially target religion for adverse treatment. Still, Catholic Services feels the law’s sting given its faithful adherence to tenets of Catholicism opposing same-sex marriage.
As an interpretive principle applicable to the First Amendment, religious traditionalists have long urged that the Supreme Court be guided by the original intent at the American founding. The problem is that the task of lawmaking is the work of many hands, involving multiple deliberative bodies, and spanning a period of months if not years. Often there were multiple and differing motives depending on which founder is the subject of focus. Just who’s intent matters, or matters most? So, the search for original intent is now dubbed Old Originalism and pushed aside as unworkable.
New Originalism starts with the plain text and asks: what is the ordinary meaning of these words to the literate public at the time of the law’s inception? The inquiry is largely objective. Dictionaries of the period are consulted, along with other documents from the law’s effective date to determine how these same words were being used. The newest thing is “corpus linguistic,” a computer search of massive digital collections of newspapers, sermons, letters, and treatises from the founding period. Still, this interpretive approach is a far narrower slice of history because context is sought only insofar as it gives meaning to the law’s text. The focus in seeking original meaning is on just a few words, not on multiple lawmakers and their deliberative bodies, and certainly not on select statesmen and legal philosophers.
With New Originalism, whether the religious practice at issue in Fulton is protected reduces to the original meaning of the Free Exercise Clause: “Congress shall make no law… prohibiting the free exercise [of religion].” Concerning the text, the first thing that leaps out is that the right is literally absolute. There is no balancing of the claimant’s right over against the conflicting interests of one’s neighbor or the common good.
The term “free” means without restraint. The term “exercise” entails observance as well as belief. Thus, religiously motivated conduct is protected, not just convictions held in one’s head. Defining “religion” can be tricky, but the Fulton parties do not contest that Catholic Services is, well, Catholic. Finally, contrary to Smith, the text makes no distinction between the city intending to “prohibit” religious exercise and the consequential “prohibit[ion]” of it. “[N]o law” is no law, intended or not.
Going back to the first point above: taken literally, the ordinary meaning of the text in 1789 was to completely dis-empower Congress. Can that be taken seriously? With New Originalism, it is proper to look to the immediate context that gave rise to this choice of words.
I. The Constitution’s Ratification Turns into a Rally for a Bill of Rights
As convention delegates met in Philadelphia in 1787, both religion and religious liberty were sensitive matters. But they were manageable if left to the states. The Congregational church was still established in all New England except Rhode Island, and South Carolina and Maryland were still working toward disestablishment of an Anglican hold on the state. If the Constitution had granted federal power over religion in any plenary sense, that could have prevented agreement in Philadelphia, and certainly would have stirred enough trouble to prevent ratification of the Constitution by the minimum of nine states.
Between December 1787 and July 1788, eleven of the thirteen states did ratify (N.C. and R.I. declined). Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut quickly did so. Momentum slowed with Massachusetts. Eventually the Bay State did narrowly ratify, as did Maryland, South Carolina, New Hampshire, Virginia, and finally New York. However, to secure these votes James Madison and others were forced (starting with Massachusetts) to promise that the federal government would adopt a bill of rights.
In anticipation of such a bill of rights, seven states drafted amendments to recommend to the forthcoming Congress. The vote on these recommendations proceeded first in Pennsylvania, and then Massachusetts, Maryland, New Hampshire, Virginia, New York, and lastly North Carolina. A few proposals, like in Pennsylvania, were defeated, not because the majority disagreed with them but because the Federalists wanted to appear unwavering on the Constitution’s overall merits.
Typical of these state-drafted recommendations was New Hampshire: “Congress shall make no laws touching religion, or to infringe the rights of conscience.” These amendments were all, without fail, unconditional—as opposed to religious liberty rights limited by breaches of peace, acts of licentiousness, and the like. This was no coincidence. If it was the federal government that was to be limited, the restraint was absolute. Each of these recommendations were drafted in 1788. That is probative because next year Congress produced the text of the Free Exercise Clause. New Originalism does not stop here, as there is more context confirming the original meaning of “prohibiting the free exercise [of religion].”
II. The Free Exercise Clause in Congress, June to September 1789
Throughout the ratification of the Constitution, Federalists insisted that a bill of rights was unnecessary and that the fears of Anti-federalists were overblown. James Wilson, a convention delegate from Pennsylvania, argued early in the ratification period that the proposed government simply was not delegated the power to disturb unalienable rights. This was a government of limited, enumerated powers, he insisted. Come April 1789, that was still the position of Federalists as the First Congress assembled at its temporary capital in New York City.
Madison’s position had shifted. He still did not concede that a bill of rights was needed to thwart future abuses by the national government. Nevertheless, Madison urged the adoption of a bill of rights to blunt Anti-federalist calls for a second constitutional convention, to fulfill the demands of states that ratified the Constitution on the promise of a bill of rights, and to entice North Carolina and Rhode Island to join the Union.
The First Amendment, along with other provisions of the bill of rights, was to be binding only on the federal government. States were already subject to a Declaration of Rights in their own constitutions, which in these post-Revolutionary times Americans thought sufficient. The objective was to put new restraints on the new government.
In introducing amendments, Madison said they were “to limit and qualify the powers of the Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” So, starting out the undertaking was made feasible because the effort was not to agree on a comprehensive list of Lockean, unalienable rights. Rather, it was the modest task of agreeing on what powers were not vested in the national government by the 1787 Constitution. Thus, the amendments would be stating negatives, that is, identifying what the federal government had no power to do. This tack was further borne out by Madison seeking to interlineate the amendments into Article I, Section 9, which is where denials on national power are cataloged.
There are those—including some with chapters in the Cambridge Companion—that make out the First Amendment as embodying natural rights. There is no truth in this claim. This is not to disparage natural rights, a belief held by many founders and acknowledged in the Declaration of Rights adopted in the states. However, Americans were sharply divided on church-state relations, as witnessed by the vast differences from state to state concerning establishmentarianism. If Congress had tried to codify a plenary protection of religious freedom, it would have foundered in discord. Thus, they set about what was achievable: saying what the federal government had no power to do.
To pronounce this task feasible is not to say that Congress proceeded with ease in deciding how best to compose what we now refer to as the Establishment and Free Exercise Clauses. By the time the final amendment (numbered “Third Article”) was adopted and sent to the states for ratification, the House and Senate had considered no fewer than twenty-six different versions—more than for any other provision in the bill of rights. Then, as now, how best to organize relations between religion and government was a sensitive topic and hard work.
On June 8, Madison introduced his amendments in the House. He dealt separately with religious pacifists and military service, as well as religious conscience and the states. Neither effort survived in the Senate. But Madison’s central proposal stated:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
The first and last phrases are about religious liberty, whereas the words “nor shall any national religion be established” are about church-government relations. On July 21, matters were referred to a Select Committee. On July 28, the Committee proposed: [N]o religion shall be established by law, nor shall the equal rights of conscience be infringed.
During floor debate on August 15, Madison was asked to say what the words meant. He began by admitting that the bill of rights was in response to the demands of state ratification conventions who feared that the federal government had implied powers. Accordingly, these words were intended to deny that the federal government had power to “infringe the rights of conscience” or “establish a national religion.”
Benjamin Huntington of Connecticut was confused about the amendment being binding on only the federal government. That led to a revised text (“Congress shall make no laws touching religion . . .”) making it clear that the amendment was not binding on states.
Peter Silvester of New York feared that the words “equal rights of conscience” might tend to “abolish religion.” By protecting the conscience of believers and unbelievers equally, Silvester envisioned the amendment as protecting free-thinkers or atheists—hence the remark “abolish religion.” Huntington agreed, saying that to the extent the text protected equal conscience (i.e., believer and unbeliever) it patronized those who professed no religion. This objection would find favor in the Senate. At the end of day, the amendment read, “The Congress shall make no laws touching religion, or infringing the rights of conscience.”
On August 20, Fisher Ames, a Federalist from Massachusetts, suggested trimming the impossibly broad “laws touching religion” to “no law establishing religion.” He also introduced the term of “free exercise.” The latter’s meaning was unexplained. Both features passed without any discussion. The amendment now read: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” On August 24 this wording passed the House and went to the Senate.
The Senate met in secret, so the motions and amendments from the Senate Journal are available, but not the debate. On September 3, numerous proposals were entertained bearing on both religious liberty and no-establishment. The first struck the “free exercise” phrase but kept “rights of conscience.” The next motion defeated a proposal that would have restored “free exercise.” A motion followed restoring “free exercise” but striking the conscience phrase. The provision now read: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof.”
On September 9, the Senate narrowed the no-establishment text to read: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” This formulation passed the Senate.
Because the House and Senate versions differed, the matter went to a Committee of Conference. No record of committee negotiations exists. House members agreed to all of the Senate’s amendments, except for those pertaining to religion and the right to a jury when accused of a crime. The amendment took on its final form: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
With respect to no-establishment, something close to the broader-in-scope House version had prevailed. However, the Committee favored the Senate in adopting the stand-alone “free exercise” text rather than the broader House protection for both “free exercise” and “rights of conscience.” This aligned with the August 15 objection by Silvester backed by Huntington. Neither chamber had been using the terms “free exercise” and “rights of conscience” as interchangeable. Rather, the final cut-down text (“. . . prohibiting the free exercise [of religion]”) requires a claimant to have a religion. Madison’s hope to safeguard the conscience of the nonreligious was lost, but in return for broader scope to what constitutes a forbidden “establishment.”
These changes passed the House 37 to 14 on September 24. The Senate concurred September 25. Two-thirds of both chambers had now agreed, as required by the Constitution’s amendment process.
On September 29, a Preamble explaining the impetus behind the amendments was inserted into the Senate Journal. It reinforced that the amendments vested no new powers in the federal government. On the contrary, the amendments were to reassure Americans that the powers delegated to the national government in the 1787 Constitution were not to be misconstrued by imputing powers never delegated.
When it came to religious liberty the Federalists and Anti-federalists sought the same end, but for different reasons. The end was to make it explicit that the federal government had no power to prohibit religious exercise, leaving such a sensitive matter to continue to reside with state authorities. The members of Congress could never have reached an agreement on the substance of religious liberty and church-government relations, but they could agree that no authority lay with the federal government. The Free Exercise Clause vested no new powers in the federal government. If anything, it did away with any powers implied by the 1787 Constitution. The dis-empowering is unqualified. Could this not lead to religious excesses? As we see in Part III, the states had a long history of regulating religion and dealing with religious abuses.
III. Comparison with State Constitutions Adopted 1775 to 1784
Going back to late 1775, New Hampshire and South Carolina openly broke with Great Britain, declared themselves republics, and adopted written constitutions. In 1776, Virginia, New Jersey, Delaware, Pennsylvania, Maryland, and North Carolina followed their sister states and adopted their first written constitutions. Georgia and New York followed in 1777. South Carolina adopted its second constitution in 1778, Massachusetts followed with its first in 1780, and New Hampshire ratified a second constitution in 1784.
All these state constitutions protected religious liberty. However, unlike the unconditional wording of the Free Exercise Clause, the state protections reflected “unalienable rights” limited by the rights of others. The text typically stated religious liberty could be limited if the claimant’s religious practices disturbed the peace or invaded the rights of others. Georgia’s constitutional provision was typical: “All persons whatever shall have the free exercise of their religion: provided it be not repugnant to the peace and safety of the State.” The revolutionary states had a long history as colonies regulating religion, and it was in the colonies—now new republics—where most all of the interaction between government and the people’s religious practices took place.
These state declarations on the right to religious liberty, when compared to the Free Exercise Clause, are suggestive concerning the meaning of the latter. The pattern is that when states were declaring their own citizens’ right to religious liberty it was conditional, whereas when states were addressing the federal government the right of religious liberty was unconditional.
The popular way of thinking about the Free Exercise Clause is as a right expanding religious liberty. Less common is to view the Free Exercise Clause as a carve-out from the federal government’s enumerated powers. Both are correct, but it is the latter point of view that was on the minds of the Federalists as well as Anti-federalists shortly before and during the First Congress. This contrasted with the states’ Declaration of Rights protecting religious liberty. Reflecting their origin in social contract theory, the latter had contingencies such as not breaching the peace or engaging in licentious acts.
New Originalism insists that the Supreme Court give the same meaning to the Free Exercise Clause that its words held at the time of the First Federal Congress. In Cantwell v. Connecticut (1940), the Free Exercise Clause was incorporated through the Fourteenth Amendment as a fundamental right. From the perspective of New Originalism, that turned a tacit acknowledge that states had sole authority over religious exercise into a limit on state power. But there is no chance that the Supreme Court will undo Cantwell given the eighty-year reliance on that precedent. Additionally, just this term the Court reaffirmed in Ramos v. Louisiana that it does not water down fundamental rights when applying them to state and local officials. As with other unqualified First Amendment rights, such as “make no law . . . abridging the freedom of speech, or of the press,” out of necessity the judiciary has long applied strict scrutiny—the Court’s most stringent standard of review. In Fulton, that would leave a rigorous Free Exercise Clause restraining the City of Philadelphia. It would follow that under the influence of New Originalism Smith would be overruled.
Carl H. Esbeck is the R.B. Price Emeritus Professor of Law at the University of Missouri, where he teaches classes in constitutional law and federal civil rights litigation. He is also co-editor of Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776 – 1833 (Univ. of Missouri Press, 2019).