Americans are deeply divided regarding the importance of religious liberty. Democrats refused to include the protections for religious liberty in the Equality Act, which was ironically designed to protect the rights of minorities. Republicans, in turn, profess to support religious liberty, but fail to understand its purpose.
Religious liberty has become fodder for the partisan bickering that dominates America, a nation in great need of a unifying principle. Americans know little about the origins and purpose of religious liberty specifically and the right of conscience generally. The Annenberg Public Policy Center recently found that only 15 percent of adult Americans know that the First Amendment to the U.S. Constitution protects religious liberty.
James Madison, the principal author of the First Amendment, referred to the right of religious conscience as our most sacred property or soul, a natural right given to every human being by a loving creator. He added that it is “the duty which we owe to our Creator.” According to the Pew Forum more than 75 percent of Americans are religiously affiliated and over 90 percent are religious, with fewer than 10 percent identifying as non-religious.
The Oxford Dictionary also defines “soul” as the “spiritual ... part of a human being” and as the “emotional or intellectual energy or intensity.” “Black American culture or ethnic pride” is included as an example of the broader definition of the soul.
It is surprising that a decreasing number of Americans are genuinely committed to protecting the soul. Indeed, an express premise of the Equality Act is the belief that religious liberty “undermines national progress toward equal treatment regardless of sex, sexual orientation or gender identity.”
Even Justice Scalia, a conservative icon, authored the majority opinion in Employment Division of Oregon v. Smith, which did more to limit religious liberty than any other recent Supreme Court decision. He wrote, “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” For Scalia and a growing number of Americans “the discharge of political responsibilities,” imposed by transient majorities, is more important than one’s soul or duty to God.
Religious exercise, the duties prescribed by God, is often viewed as being divisive rather than unifying, even though 3 out of 4 Americans continue to self-identify as religious. Many Americans clearly fail to understand the value of the right of conscience.
Madison was “vexed” by the tyranny of the majority whenever it directly or indirectly regulated the right of religious conscience. He understood that no just government would take a person’s soul, except when the “interests of the state were manifestly endangered.”
Madison makes the case in two ways. He argues that religious liberty is our “most sacred property.” Virtually all Americans believe government must justly compensate a person for the taking of property, even if that property is taken for some public good. Government, however, cannot compensate an individual for the taking of her soul. Madison believed everyone has a soul, whether they recognize it or not. It is a shared value of the most intimate kind, placing it largely beyond the reach of government power.
Madison also argued that every right protected by the First Amendment — the freedom of the speech, the freedom of the press, the right of assembly (association), and the right to petition one’s government — was designed to protect the soul as well as matters of “emotional or intellectual energy or intensity,” including one’s racial or sexual identity. Madison understood what most contemporary Americans do not — that the First Amendment is designed as a means of exercising one’s conscience. The environmentalist, for example, uses his or her “intellectual ... intensity” to support environmental causes by exercising some or all of rights secured in the First Amendment. LGBTQ advocates also rightfully employ the First Amendment rights to further their interests. The same is true of every minority group.30 comments on this story
We all share equally in the right of conscience, in one form or another. To limit any of those rights, particularly the preeminent right of religious conscience, threatens the exercise of every other right, leaving every individual and minority in jeopardy, at the mercy of a transient majority. That should vex every American, as it did Madison.
The liberty of conscience, as Madison understood it, ought to remain the great unifying American principle, because every minority depends on it. To take such liberty is to take one’s soul, her most intimate and sacred property. If we fail to protect the right of religious conscience and conscience generally, we threaten to deprive all Americans of the very liberties that ought to unite us.