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Recovering The Religious Liberty Of The Founders


The state of religious liberty in America is increasingly disconcerting, and two recent books bring a great deal of light to our current cultural moment.

Free to Believe: The Battle Over Religious Liberty in America is by Luke Goodrich, an attorney with the Becket Fund for Religious Liberty, where he represented and won significant Supreme Court victories for the Little Sisters of the Poor and Hobby Lobby. Did America Have a Christian Founding?: Separating Modern Myth from Historical Truth is by Mark David Hall, the Herbert Hoover distinguished professor of politics and faculty fellow in the William Penn Honors Program at George Fox University.

The answer Hall gives to his title-question is a resounding yes. And Goodrich demonstrates that despite many recent setbacks there is still a great deal of freedom in our land to believe.

The Founders’ Attitudes Toward Religion

Hall presents a refreshing overview of the faith of the founding fathers in a highly accessible format. Thoroughly refuting common claims that most of the founders were deists and heavily influenced by the Enlightenment, Hall systematically walks through the distinctively biblical and Christian commitments, principles, and references littered throughout the founding documents and structures.

Turning to the lives of perhaps the most unorthodox of the founding fathers, Thomas Jefferson and James Madison, Hall deflates the typical secular fanboy fervor handily by demonstrating that even Jefferson and Madison were not nearly as militant against Christianity or religion as modern secularists wish. Even as jumpy or perhaps as heretical as those two men were regarding official tenets of Christianity, they still involved themselves in calls to Christian prayer, support of Christian chaplains, and other general encouragements of Christian worship and education as elected officials.

In fact, this becomes something of a theme: The founding fathers, including Jefferson and Madison, repeatedly “recommend” attending Christian worship and issue invitations to join in prayers of supplication for wisdom and blessing and confession of sin to the Christian God.

Hall is at his best when exposing the ridiculous judicial path our courts have chosen over the last 75 years, relying heavily on unofficial correspondence from Jefferson and Madison, while studiously avoiding the many other men who played just as significant a role (and sometimes more) in the founding, who were clearly orthodox and robust in their Christian faith. Jefferson wasn’t even involved in drafting the First Amendment, and Hall proves that Madison’s influence is frequently exaggerated. The selective and preferential treatment of Jefferson and Madison with virtually no historical defense for doing so is really quite astonishing.

The courts have frequently relied on rather random lines of informal or unpublished communication from these two founders, while almost universally ignoring the input, involvement, and vast paper trail of many other members of the founding congresses and congressional committees, particularly in their interpretation of the First Amendment. Perhaps the most glaring omission is the work of Roger Sherman, the only founding father to have been involved in every single one of the most significant documents related to the birth of our nation.

Finally, Hall explains the distinction between disestablishment and encouraging or promoting Christian faith and practice in general. Most of the founding fathers were opposed to an established Christian church at the federal level, but those same founding fathers robustly encouraged the Christian faith formally and informally. The founders resisted the establishment of churches primarily out of concern that establishments tended to hurt churches and pastors rather than actually help them. Thus, even the determination to not have an established church was almost universally rooted in the concern for the health and integrity of churches.

An established church at the federal level would have also been incredibly divisive since nine of the 13 states had established churches when the Constitution was ratified – proving that the First Amendment did not say anything at all about states having established churches. Hall demonstrates that the deeper philosophical skepticism toward establishment was actually rooted in explicitly Christian premises, committed to the “sacred right of conscience” found at the heart of religious liberty. Moreover, Hall traces the Protestant distinctives of Sola Scriptura and the priesthood of all believers as playing just as heavily in the constitutional conventions, if not more, than John Locke’s social compact theory.

The Golden Rule

Whereas Mark David Hall’s work is primarily historical, only finally landing in the modern-day debates in his last chapter, Luke Goodrich is concerned to bring modern Christians up to speed on the current legal lay of the land. Goodrich shows his cards early in the book, distinguishing between three dominant views of Christian involvement in the public square.

He labels these viewpoints as “pilgrims” (America is a Christian nation in some sense), “martyrs” (Christians should not be particularly concerned with politics and should expect persecution), and “beginners” (people who care about religious freedom but are unsure what to think). Goodrich then offers what he calls “a better way,” a view he suggests is rooted in the nature of God and man, and therefore primarily seeks to protect religious freedom without government coercion.

Goodrich plunges into the center of the issues modern Christians face. He begins with an overview of scriptural themes and principles, while arguing that Christians are most persuasive to non-believers when they avail themselves of arguments drawn from natural law, history, constitutional law, and common sense.

What is particularly helpful about Goodrich’s book is how he weaves together political theory and practical questions with actual court cases he is very familiar with or has been personally involved in. It can be easy for enthusiastic bloggers to issue all manner of pronouncements about what they would do if they were king, a supreme court justice, governor, or the president for a day.

But reality is almost always more complicated. At the very least, if Christians are to speak intelligently into the public square and into public policy, they ought to do so with an accurate grasp of where we actually are.

Most conservative Christians are aware of Roe v. Wade, claiming the right to abortion, and the more recent Obergefell v. Hodges decision, claiming to legalize homosexual marriage, but these two appalling decisions did not happen in a vacuum. However, many other pieces of legislation and court decisions have affected the current state of religious liberty.

Goodrich insightfully educates his readers on the Religious Freedom Restoration Act (RFRA), reviews the impact and subsequent history of the Civil Rights Act, as well as the Religious Land Use and Institutionalized Persons Act, while walking through various court decisions, surrounding questions of hiring/firing practices, zoning laws, abortion, homosexuality, service industries (bakers/florists/photographers), and how Christians should view Islam politically.

Goodrich demonstrates the real and present threats to modern Christians, without drama or hysterics. He ultimately argues that what Christians should be working for is compromise on all of these issues, freedom to believe and educate and live by Christian principles according to the dictates of our consciences, while leaving secular America free to do whatever they want.

He writes, “My thesis is simple. The government shouldn’t promote religion in the public square. Neither should it scrub religion from the public square. Instead, it should treat religion as a natural part of the public square” (emphasis original). Elsewhere, he gives an example of what he means: “In short, in a society that is deeply divided over human sexuality, the abortion model does the best job of respecting both sides. Same-sex couples are free to live according to their views; religious people are free to live according to theirs. The government doesn’t force either side to violate their deeply held beliefs about human sexuality. Why would anyone object to this kind of compromise?”

Before offering an answer to Goodrich’s question, let me return to Hall just to demonstrate that he lands roughly in the same place as Goodrich on this question. After walking through examples from early American public life, which trended toward granting religious exemptions on oaths and military service, he cites modern examples of religious exemptions with Jehovah’s Witnesses, Muslim prisoners, a New Mexico cult, and Amish families.

He concludes, “The argument here is not that America’s founders would have protected each of these minorities in these cases. It is that protecting the religious liberty of all citizens whenever possible is the logical application of their commitment to religious liberty… The moment we start picking which convictions we choose to protect and which we do not, is the moment we abandon the founders’ commitment to defending ‘the sacred rights of conscience.’”

What Goodrich argues for throughout his book and what Hall concludes in his final chapter is what many would call a principled pluralism. It attempts to not grant any privilege to one religion or another or any religion at all, but it seeks to guard the principle of freedom of conscience.

And freedom of conscience inherently rejects all coercion. It cannot be a free conscience that is required to pay homage to any particular god or virtue or philosophy. A significant part of the argument is that whatever can be coerced from one perspective can be coerced from another. Don’t do to others what you wouldn’t have them do to you, golden rule and all that.

Acknowledging Protestant Particulars

In answer to Goodrich’s question about why anyone would object to the kind of compromise he suggests, my own answer keys off of Hall’s admission that what he is arguing for is not exactly what the founders would have argued for, but what he believes is the outworking of their logic.

Hall quotes from another of his books in passing, arguing that the founders understood that at least at the federal level, lack of an explicitly Christian oath meant their system could “permit ‘a Papist or Infidel’ or ‘pagan, deists, and Mahometans’” to participate in the American system, but Hall does not develop that claim in any detail. Following Hall’s scholarly lead, I would want to know which founding fathers granted that and what their thinking was.

Regardless, while much of what Hall and Goodrich offer us is extremely valuable, and Goodrich’s legal work has no doubt done tremendous good in slowing the hemorrhaging of religious liberty, I maintain that both fall short of the founding fathers’ vision. Put simply, the argument that Hall puts forth is so convincing that it undermines where he and Goodrich want to land.

Moreover, I specifically question what he says is the “logic” of the founders. Rather, the robust Protestantism that undergirded the principles of religious freedom and freedom of conscience are, as Hall himself even grants, present in the Constitution, even lacking a requirement for elected officials to affirm a Christian oath. The Constitution recognizes Sunday as a day of Christian sabbath by granting the president the day off from considering bills presented to him by Congress, and the Constitution somewhat elaborately dates the founding of our nation from the birth of “Our Lord.”

Far from being a principled pluralistic document, the Constitution itself was a principled Protestant document. Precisely because that is the case, the principles it embodied protected the freedom of conscience and God-given freedoms of every man, across the Christian denominational landscape, and even those of non-Christians and non-believers. The problem with where Hall and Goodrich land (and other conservative Christians like them) is that they want certain benefits that only a Protestant Christianity will grant but without acknowledging any explicit dependence on Protestant Christianity.

Protestant Christianity, while far from perfect, is the movement that most earnestly urged religious freedom on the world. From the Peace of Westphalia to the Elizabethan settlement to the American experiment, Protestantism – failures, flaws, and all – called for the freedom of conscience. But it did so in the name of Jesus, under the authority of Scripture, recognizing man’s fallen nature and propensity to tyranny and oppression.

While I happily grant that the category Goodrich calls “pilgrims” have sometimes made overwrought claims and overreacted to encroachments, Hall decisively proves that America did have a Christian founding, and an overwhelmingly Reformed and Protestant founding at that. While many practical and pressing questions remain, the path of the founding fathers seems wise.

An established church is indeed unhelpful, unpractical, and tends toward coercion. However, a return to openly acknowledging the Triune God in the public square, as well as encouraging and commending worship and prayer in His name is the only lasting moral foundation for a truly liberal order that protects all religious freedom.