The enduring allure of the right to the free exercise of religion

Free Exercise: Religion, the First Amendment, and the Making of America
Chris Beneke
Oxford University Press
October 2024
256 pages
ISBN: 9780197767023

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In late October, in the dying weeks of the U.S. presidential election campaign, Democratic nominee Kamala Harris told an NBC reporter that no religious exemptions would be granted to the federal abortion laws she was promising under her presidency. Unusually for such a sensitive subject, and inexplicably for a political candidate trying to gather as many votes as possible, Harris flatly declared the matter “non-negotiable”. Harris’ strident and tone-deaf declaration is only the most recent example of Democratic politicians’ encroachment upon the free exercise of religious liberties and conscience. Over a decade ago, the Obama administration saw the Little Sisters of the Poor dragged through the courts by the states of Pennsylvania and California because his 2010 Affordable Care Act compelled religious non-profit groups to cover the provision of contraceptives in their employee health insurance plans. It was not until 2020 that the Supreme Court found in the Little Sisters’ favour, upholding America’s longstanding and sacrosanct principle of free exercise of one’s faith.

“Free exercise” – perhaps today more than ever it is important not to take these two modest words for granted. Published this autumn, and suitably titled Free Exercise, a book by historian Chris Beneke offers a timely and valuable history of this important clause in the U.S. Constitution. Beneke is Professor of History at Bentley University in Massachusetts. His research interests focus on religious history and the history of toleration, particularly in early national America. His latest book insightfully plumbs the historical and cultural contexts of this phrase, now so central to the First Amendment. Early chapters of the book comb through legislative and historical precedents for the term on both sides of the Atlantic, and the process that saw it find its way into the Bill of Rights. Later chapters explore what it meant in practice for women, Catholics, Jews, atheists, and slaves.

In December 1791, when James Madison and the other members of the first U.S. Congress ratified the Bill of Rights (a sort-of appendix of ten amendments to the Constitution), little did they realise that its First Amendment would become one of the most consequential and fiercely defended articles in twentieth and twenty-first century America – or that its influence would resonate so strongly in numerous countries around the world. A somewhat unwieldy statement – in fact an amalgamation of separately drafted amendments – the First Amendment declares: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In recent years, from “hate speech” to baking cakes to the rise of social media platforms, the importance of the First Amendment as a bulwark against censorious and punitive government overreach has never been greater.

The expression “free exercise of religion” had been in use for more than a century before the American Revolution. Maryland’s colonial assembly passed an Act Concerning Religion in 1649 which guaranteed for its residents, as long as they were Christian, freedom from persecution in the “free exercise” of their faith. The words were invoked again in London’s 1689 Toleration Act, drafted in the wake of its own, earlier, revolution. The Toleration Act opened by stating its authors’ intention to offer “some ease to scrupulous consciences in the exercise of religion”.

Even though the phrase was in circulation for over a century preceding its appearance in the First Amendment, however, Beneke notes that its intended meaning often varied, and was not quite as “free” as we take it to be today: “sometimes it was merely an elaboration on ‘exercise’, and not meaning ‘free’ in any sense we would understand today. In these instances, free exercise entailed a grant to a church or denomination to assemble for worship in a particular location and under prescribed conditions”. So while the phrase has an identifiable ancestry, its intended meaning has evolved somewhat through time and place. We can see how limited the phrase could be in Georgia’s founding charter of 1732, which declared that “all such persons, except papists, shall have a free exercise of their religion”. Ouch.

It was Virginia’s James Madison who was most responsible for assembling the list of amendments that became the Bill of Rights. The need for such a bill at all seems to have generated more discussion and resistance than the momentous ideals contained therein. The relative lack of interest in the amendments in Congress has produced a regrettably limited paper trail. Beneke acknowledges that this opaqueness has created “a maddening ambiguity upon America’s most prized freedoms”.

Madison himself was initially unenthusiastic about drawing up such a list of rights. He had good reason to be – his own state of Virginia had drawn up a Statute for Religious Freedom in 1786, but it had proven ineffective. By October 1788, Madison was writing to Thomas Jefferson that Virginia’s “bill of rights [has been] violated in every instance where it has been opposed to a popular current”. Its supposed guarantees represented little more than “parchment barriers”. In the end, however, he was swayed by those who feared that the new Constitution would create an overly powerful central government.

Additionally, from a “free exercise” perspective in particular, some worried that the government might decide to acknowledge a particular form of Christianity, thus establishing or endowing a particular church. From their earliest years the colonies were refuges for those fleeing religious persecution under nations with established churches in Europe. Consequently, guarding the free exercise and liberties of one’s faith was particularly important to those living in British North America. Eventually Madison relented and concluded that Congress ought to “expressly declare the great rights of mankind secured under this Constitution”.

Beneke observes that Madison’s “Congressional allies remained incredulous. Their hesitancy arose from a widely acknowledged fact: Congress had bigger fish to fry. In the House of Representatives, amendment discussions had to compete with a busy legislative schedule.” Congress’s resistance was partly practical and partly principled. The founders’ conception of rights was quite different from the legal positivism of today. Beneke points out that “legislative overload aside, the primary objection to amendments remained the assertion that they were unnecessary – not because the citizenry were undeserving of rights, but because the national government lacked the power to infringe them.” The government did not engage in a top-down “granting” of rights to people. Rather, people already enjoyed these rights – free exercise of religion, free expression, peaceful assembly – and it was not possible for the federal government to arrogate them to itself.

One is reminded of the Democrats’ fatalistic and alarmist discourse in the final weeks of the recent presidential election campaign, in which they suggested that people would have “fewer rights” if they voted for Trump. While their rather schoolmarmish view of rights as rules and permissions dispensed to a docile and obedient class failed to gain traction with the public, it attests to how significantly contemporary understandings of rights have evolved from something natural to our human condition to articles dispensed by an authority.

In the end, the process that produced the Bill of Rights was quite muted. Beneke comments: “Little joy or idealism attended these deliberations. No great speeches were made on behalf of people’s liberties. […] In fact, the whole process proved ‘exceedingly wearisome’ to Madison, who resented all the quibbling”. The First Amendment’s beginnings are particularly anticlimactic. Originally, it was listed as the third amendment submitted to the states for ratification. However, the first two proposed amendments, relating to congressional representation and pay, failed to gain the required support from the states. Thus in a serendipitous turn of events, the draft third amendment muddling its way through state legislatures in 1790 and 1791 was transformed into the iconic First Amendment we esteem so highly today.

Even in the decades that followed, the Bill of Rights remained inconspicuous. “For nearly a century after their ratification”, Beneke writes, “jurists seldom applied any of the Constitution’s first ten amendments”. Perhaps this is indicative of the largely homogeneous political and cultural milieu of eighteenth-century America, where WASPs – white, Anglo-Saxon Protestants – comprised most of the population, and consequently most of its ruling class. It was not until the 1878 Reynolds v. United States case that the Constitution’s free exercise clause was first put to the test. George Reynolds, a Utah Mormon, had married a second wife. His first wife was still alive. Reynolds claimed a right to polygamy under the free exercise clause, but the Supreme Court ruled that it did not meet this standard. Citing Thomas Jefferson’s now famous 1801 phrase describing “a wall of separation between church and state”, the case marked the beginning of an ongoing and uneasy oscillation between these two entities in U.S. jurisprudence. As the Little Sisters of the Poor case shows, the walls and gaps in the Constitution’s free exercise clause continue to be probed and uncovered in courtrooms today.

How did Catholics fare under the First Amendment’s guarantee of “free exercise” of their faith? In some respects they represented the first test of how expansive this clause could really be. The 1790 census recorded a population of just under four million free and enslaved people living in the United States. Of them, roughly 50,000 were Catholic. Historically this was “a group relegated to second-class status in much of British North America”, Beneke writes. During the colonial period, Catholics were denied basic civil rights such as holding civic office or sitting on a jury. Some colonies banned priests, while others banned Catholics altogether.

As with the emergence of the Bill of Rights and First Amendment, a mixture of principles and pragmatism shaped Catholics’ emergent rights under the free exercise clause. Having served at high rates during the revolutionary war, especially in Maryland, there was a growing “need to treat Catholicism as something other than the Antichrist and Catholics as fellow citizens,” writes Beneke. Furthermore, American forces had become increasingly “dependent on the ships, men, and munitions that Catholic France supplied”. As attitudes mellowed, decades-long prejudices and values began to shift too. Boston – “the capital of American puritanism” – opened its first Catholic church in 1788, and the United States’ first Catholic bishop, John Carroll, wrote of the “great civilities” with which he was greeted by Bostonians when he visited the city in 1791.

Reading the book, one is struck by how little fuss was made of the process that gave rise to the First Amendment and Bill of Rights. “Neither Madison nor his legislative contemporaries could appreciate the impact they [i.e. the amendments] would have”, Beneke writes. This contrasts so strongly with the reverence and attention we now grant the text, particularly the First Amendment’s free exercise and freedom of speech clauses. In some respects, the extraordinarily understated manner in which these few terse words materialised over two centuries ago paradoxically adds to their allure and authority today.

“Free exercise” – these two words continue to hold their own, protecting the callings and consciences of millions of Americans. Even those living beyond the U.S., perhaps especially those confined to the over-regulated old continent, should be grateful to Madison and his fellow congressmen for articulating an important principle that is worth defending today.