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Can We Have Religious Liberty In Modern America?


The Supreme Court is soon to decide a case that could potentially impose same-sex marriage as a nationwide civil “right.” During one exchange in oral arguments in the case, Obama administration Solicitor General Donald Verrilli was asked by Justice Alito whether a religious school could lose its nonprofit status if it held that marriage is between one man and one woman. Here is the solicitor general’s response: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.”

That certainly sounds like a “yes.” Will it end with religious schools? What about churches? Will Christian churches lose their nonprofit tax status if they hold firm to one of their foundational beliefs—a sacrament of their faith?

It is no exaggeration to say we are at a tipping point of one of the pillars of the American founding: Religious liberty. Can religious liberty be sustained in the America of today which understands itself, and the idea of liberty, in a different way than our forefathers did? John Adams, that venerable founder of our republic, once wrote that we are “a government of laws, not of men.”

To understand this statement, we need to understand what Adams meant when he used it. This idea of the rule of law, or of a government of laws rather than man, goes back to Aristotle. In his Politics, Aristotle makes it clear that law should govern a society, and men, even the good and qualified, should be only “guardians and ministers” of it. We see this idea again in Livy, when he writes, “Imperia legum potentiora fuerunt quam hominum” (roughly translated: government/command of laws is stronger than that of men). Why was this concept—already ancient by the eighteenth century—so important to the founding of our country, and how did they understand this concept?

We Need the Rule of Law Because We Are All Different

The Founders understood certain things when they established our republic. In “A Defense of the Constitutions of Government of the United States of America,” Adams explains the need to have three branches of government, two in the legislature and one in the executive, with a judiciary to check all three. (I am using Adams’ use of the word “branches” here to indicate separate legislative houses as well as the executive, counter to our common contemporary understanding of the three “branches” as including the judiciary.)

Our liberty is a natural right protected via constant tension between all of our branches of government, representing the tensions between all of us as a people.

He defends the need to set up the republic in this way based on this idea of a “government of laws,” and on Machiavelli’s warning in “Discourses on Livy” that “men never do good except out of necessity,” and that “in every republic there are two different tendencies, that of the people and that of the upper class, and that all of the laws which are passed in favour of liberty are born from the rift between the two.”

Laws that preserve and protect liberty, therefore, will arise out of a tension between people. (In our contemporary society, we tend to be more egalitarian and less class driven, but we retain group distinctions in the shape of special-interest groups vying for laws suitable to their specific agenda.) The branches into which our government’s power was separated are supposed to be suited to represent all sorts of majorities and minorities, and to keep and hold this tension as laws are made.

Moreover, these laws are not an end in themselves, nor is liberty found in the laws per se. Adams makes it clear that Livy nowhere “defined liberty to be subjection to the laws only.”  In other words, our liberty as Americans (as the Founders saw it) does not come because we have a government of laws instead of a government of men.

Our liberty is a natural right protected via constant tension between all of our branches of government, representing the tensions between all of us as a people. It is through this tension that we ought to end up with equal and just laws that are good for society as a whole. This tension keeps our liberty from collapsing. This tension, bounded by our Constitution, keeps the individual desires of man in check.

Can the Constitution Still Protect Religious Liberty?

But, before we acquiesce to every possible minority with every possible claim, Adams says something else, something which should give us pause:

We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other. (emphasis added)

As early as 1776, he wrote the following in a letter to his first cousin, Zabdiel Adams:

Statesmen, my dear Sir, may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand. The only foundation of a free Constitution is pure Virtue, and if this cannot be inspired into our People in a greater Measure than they have it now, They may change their Rulers and the forms of Government, but they will not obtain a lasting Liberty. They will only exchange Tyrants and Tyrannies. (emphasis added)

This makes one wonder: If the majority of the people of this republic are no longer constrained by religion or morality, do we have any hope of saving our republic and securing lasting civil and religious liberties? If any minority seeks not to protect its liberty, but to subvert the moral conscience of the majority, does our majority have the conscience and morality to stand?

When the majority has already been steeped in the anti-moral doctrine that, effectively, “all ideas are equal,” the answer to these questions is clearly, “no.” Even if the most competent constitutional lawyers were to run around the country stamping out legal fires like the one in Houston several months back or Indiana recently, or the Supreme Court case just argued; if most people living in these United States no longer hold nor can agree on matters of religion or morality, how long before our Constitution, or “government of law,” collapses?

If most people living in these United States no longer agree on matters of religion or morality, how long before our ‘government of law’ collapses?

Asking this question sheds even more light on this idea of being a people governed by law rather than men: The logical conclusion of a collapsing moral and religious majority automatically collapses the laws of our nation. This is so because those guarding those laws requires men and women willing to uphold them. When the religion and morality intrinsically required to be “guardians and ministers” of our government of laws does not exist within the individual (or is enfeebled), we collapse into a nation governed by the whims of man.

I submit we have for some time been governed by the whims of men. Richard Samuelson wrote eloquently of this in his essay, “How John Adams Helps Explain the American Mind,” particularly in the final section, “Using the Administrative State to Remake America.”

What Is a Christian Response?

I know some Christians think “if we only had Christian laws in this country everything would be okay.” But this has historically been proven untrue, and the Founders knew it. Machiavelli in “Discourses on Livy” says we “must presume that all men are bad by nature; and that they will not fail to shew that natural depravity of heart.” He goes on to say that sooner or later this depravity comes out. Adams adds, “Machiavel’s translator remarks, that although this seems a harsh supposition, does not every Christian daily justify the truth of it, by confessing it before God and the world? And are we not expressly told the same in several passages of the holy scriptures, and in all systems of human philosophy?”

The goal must be to bring, if we can, religion and morality back to our culture so that it is capable of desiring and keeping the patrimony of the Founders.

This may be hard to hear, but if we do not want to be hypocrites we must show our collapsing culture we can be honest even about ourselves, our own tendencies and temptations. We also are men of flesh and blood, and the only thing which tempers us is exactly what Adams said would be our only restraint—our religion and morality. As Thomas West and Douglas Jeffrey say in “The Rise and Fall of Constitutional Government,” “However superior the best among us may be in regard to wisdom and virtue, no creature of flesh and bones is exempt from self-interest. No one can be presumed free from the temptation to abuse power over others.”

Christians must hold in tension our personal desire for liberty, and religious liberty in particular, with the God-given desire to see the culture around us receive spiritual liberty from all the destructive desires which hold it in bondage. The best way we can do this, the best way I believe we can save this fragile and declined republic, is by going back to our founding principles—principles founded on the laws of nature and of nature’s God—even when rogue governors, tyrant judges, and media-enabled shout-downs are encroaching upon us.

Practically, this means in the public square we do our best to hold on to liberties we inherited from our Founding Fathers and keep those in tension with groups opposing us, while in the private sphere doing all we can to spiritually love our culture. The goal must be to bring, if we can, religion and morality back to our culture so that it is capable of desiring and keeping the patrimony of the Founders.

We must prepare for this to take a very long time, and along the way we will encounter setbacks: religious institutions losing tax-exempt status may or may not yet be one of the many we face. Our culture will give us repeated occasions to prove our integrity and sincerity. The fight is on two fronts: civil and spiritual. Both require our energy and commitment. Both require humility and peace-ability.