We celebrate today as Religious Freedom Day because of a law that the Virginia Legislature adopted 232 years ago. The law informed the First Amendment and embodies a bedrock principle of the American Experiment: religious freedom. Today, that principle is in danger. A case involving a gay wedding and a pious baker, which the Supreme Court is considering, could forever redefine the nature of religious freedom in America.
Thomas Jefferson penned the Virginia Statute for Religious Freedom nine years before it was actually passed in 1786, and we celebrate the law each year on Jan. 16, the anniversary of its adoption. The heart of the statute is now replicated in more than 30 state constitutions. At the time, Jefferson was our minister in France and James Madison actually introduced and shepherded the landmark law through the General Assembly. The rich history of the law — it is one of only three accomplishments that Jefferson wanted on his grave — is still relevant today, especially in the debates about the interplay between religion and government, on all manner of issues, including FEMA funding the repair of churches and, yes, even wedding cakes. Especially wedding cakes.
The gay wedding cake case, Masterpiece Cakeshop, is being litigated by a Christian who owns a Colorado bakery and refused to sell a wedding cake to a gay couple. He’s arguing freedom of speech, but also that he has a right to freely exercise his religion and that this right includes discrimination.
The Virginia Statute is still relevant today.
Of the major principles embedded in the Virginia statute, two inform this case. First, that the surest way to protect the freedom of religion is a government free from religion. The Virginians lampooned “the impious presumption of legislators and rulers, civil as well as ecclesiastical” for “setting up their own opinions and modes of thinking as the only true and infallible, and … endeavoring to impose them on others.”
This was not just profane, but oppressive. Because “to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain” heretical ideas “destroys all religious liberty.”
This principle is also relevant to the current controversy over FEMA granting taxpayer money to repair churches. According to the Virginia rule, “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever,” because “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” Sinful and tyrannical may seem a bit much if you’re a Christian thinking about a church being repaired. But imagine your taxes funding the repair of a flooded mosque or a Scientology high rise damaged by a California wildfire and Jefferson’s assessment becomes spot on.
After hammering the civil and religious leaders who enacted what Orwell would later label thoughtcrime, Jefferson summed up this first principle nicely: “Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”
The discriminating baker might believe this is a point in his favor, but nobody, including the state of Colorado, is telling him what to believe. He can believe, as he claimed, that “Jesus was a carpenter” and that he would not “have made a bed for their wedding.” The issue is not his belief, but his action. He discriminated against a gay couple.
Religious belief may be absolute, religious actions are not.
Which brings us to the Virginia statute’s second applicable principle. In the law, Jefferson and Madison explain that religious freedom is not absolute. After defending the freedom of thought, the Virginians clarify that the government can step in when opinions become action: “It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”
The freedom of belief is absolute. The freedom to act on those beliefs is not. Religious conduct can and must be burdened by civil laws, especially those that protect the rights of others.
That statute heavily influenced another landmark piece of legislation that Madison is largely responsible for: the First Amendment. The six rights protected in the First Amendment — a secular government, free exercise of religion, free speech, free press, assembly, and the right to petition our government — all seek to protect the freedom of conscience. That is the one and only absolute right we have under the Constitution. Every other right can and should be limited in certain circumstances, including the free exercise of religion.
The First Amendment’s language makes this clear. The Free Exercise Clause prevents the government from “prohibiting the free exercise” of religion; it does not prevent the government from regulating conduct that happens to be motivated by religious belief. Free exercise can be burdened, encumbered, hampered, impeded, strained, hindered and obstructed — it cannot be prohibited.
The principle that government can regulate action, even when religiously motivated, is essential to civilization. The Supreme Court used a straightforward example to explain this point nearly 150 years ago: human sacrifice.
Individuals who, like Abraham, the father of the world’s three major religions, hear a god ordering them to kill their child do not have a right to do so. Religious freedom is quite irrelevant at that point. Somewhere on the spectrum of religiously motivated action, the civil law can step in.
It’s not always clear where we should draw that line between religious action the government can and cannot regulate, but there are plenty of instances where the line is obvious. The line can always be drawn where the rights of others begin. As Jefferson said elsewhere, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” If religion mandates picking pockets and breaking legs, however, it comes under the purview of our secular law. And no belief, no matter how fervent, should change that. There is no right to infringe the rights of others.
This is how American courts have interpreted our right to religious freedom since the states united. Our freedom of thought and belief are absolute; our freedom of exercise and action are not.
If the U.S. Supreme Court decides the baker has a religious right to violate secular law and discriminate, it will have redefined religious freedom, turning its back on true religious freedom as we celebrate it today. The impact will be as earth-shattering as the Virginia law, but will not be celebrated centuries from now. Instead, such a decision will eventually rank alongside Plessy v. Ferguson, Korematsu v. U.S. and the other catastrophic missteps of the court.
Looking back, law students would wonder how the court got it wrong with the baker in 2018, but right in 1879 when it asked and answered the question at the heart of the case:
“Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Let’s hope this Supreme Court doesn’t redefine this sacred right.