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Michael W. McConnell: Is religion special?

Michael W. McConnell

Published: Sunday, Nov. 20 2011 1:16 a.m. MST

Amish children head to school in Lancaster County, Pa. The Amish and other religious minorities sometimes seek legal exemption for their religious practices.

William Thomas Cain, Getty Images

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The framers of our Bill of Rights thought that religious freedom deserved double-barreled protection. Americans would have the right of "free exercise" of their chosen faith, and government was forbidden to foster or control religion by means of an "establishment of religion." Today, an increasing number of scholars and activists say that religion is not so special after all. Churches are just another charity, faith is just another ideology and worship is just another weekend activity.

All Americans — believers and nonbelievers alike — should resist this argument because our society would be less free if it were adopted.

The religion clauses of the Constitution were the culmination of centuries of theological and political debate over the proper relationship between spiritual and temporal authority.

Some, like John Locke, doubted that a magistrate could be a competent judge of religious matters. Others, like Thomas Hobbes, believed that a sovereign could ill-afford to ignore them.

Religion, unlike any other form of belief or commitment of conscience, challenged the reach of governmental power.

The Framers followed Locke, banning any establishment of religion and protecting the free exercise of religious belief. The alternative — to give the government control over the religious lives of its citizens, the way it has control over commerce or foreign affairs — would have been antithetical to the new nation's commitment to "Life, Liberty and the pursuit of Happiness," especially liberty.

After all, state-sponsored churches espoused state-serving doctrines. It was an Article of Faith in the Church of England that the king was sovereign over all matters civil and spiritual. These made obedience to the king a religious obligation. It is no coincidence that many of the leading Loyalists of the Revolution were Anglican ministers.

James Madison argued that religion was "a duty towards the Creator" that preceded "the claims of Civil Society." What happened when society demanded what the faithful could not give?

In one early case, Jonas Phillips, a friend of George Washington and founder of one of America's oldest synagogues, was subpoenaed to testify on his Sabbath (Pennsylvania courts operated on Saturdays in 1793). He refused, and the court fined him.

Those who argue against special protection for religion would force Phillips to make a choice: either follow the laws of your God and suffer civil penalty, or follow the laws of your state and suffer divine punishment. A society that respects religious liberty sees that choice as unnecessary. Why force Phillips to choose between God and country when you can reschedule the testimony?

But if we reschedule for Phillips, who else should we accommodate? The father with a little league game to attend? The environmentalist with a rally to organize? The firefighter with a shift to work? As a community, we may oblige everyone's concerns, but we must respect Phillips'?

The state is no judge of religious truth. Because it must be mute on matters of faith, the state cannot decide the relative importance of religious practices. But it must necessarily make decisions among competing views of the family, the environment and the public welfare and it does so all the time.

Unlike Phillips, who cannot seek state support of his religion, the father can lobby for sports funding, the environmentalist for new regulations and the firefighter for extra vacation time. Faith alone has been singled out for special disability and special protection. Religion has been unique from the beginning of our constitutional experiment. But in a world swirling with competing ideologies and secular analogs, why does it remain so today?

Religion is an institution, a worldview, a set of personal loyalties and a locus of community, an aspect of identity and a connection to the transcendent. Other parts of human life may serve one or more of these functions, but none other serves them all.

To believers, the right to worship God in accordance with conscience is the most important of our rights. To nonbelievers, it is scarcely less important to be free of governmental imposition of a religion they do not accept.

And as we know from the sad history of early modern Europe, and of Iraq and much of the Middle East today, a guarantee that the government will not wield its sword in favor of particular religious sects is fundamental to civic peace, as well as spiritual liberty.

Editor's note: Michael W. McConnell, a member of the Deseret News Editorial Advisory Board, is the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School. Previously, McConnell served as a judge on the U.S. Court of Appeals for the 10th Circuit in Salt Lake City. His influential scholarship on constitutional law has been widely published. This commentary derives from remarks shared at the launch of the American Religious Freedom Program, a new initiative at the Ethics and Public Policy Center in Washington, D.C.

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