Natural Rights and Religion:

(Originally Published on Freespace)

One claim that I often hear the religious right make against the concept of the separation of Church & State is that the Establishment Clause was passed simply to forbid the federal government from establishing one dominant national sect, while preserving and encouraging the ability of the states to establish their own (Christian) churches with differing denominations, and to promote religion in other ways. This claim is misleading at best, outright false at worse.

Let me reiterate some of my comments that I made regarding the Founders and state violations of natural rights, because they are relevant to this post as well: Just because the federal government didn’t have the recognized power to prevent the states from doing X, doesn’t mean that the Founders approved of—or thought it was a good thing—that the states did X. The Bill of Rights secures many vital natural rights of mankind (as well as some constitutionally created non-natural positive rights). Natural rights are rights that no government, federal, state, or local may properly infringe. Yet, the federal government originally did not give itself the power to enforce the Bill of Rights against the states. If a state therefore didn’t recognize one or more natural rights of its citizens, we can conclude that the Founders disapproved of such actions, that such actions were in fact anathema to the principles that this nation was founded on, even if the federal government couldn’t stop what was going on.

The father of the Bill of Rights, Madison (and Jefferson and others), thought liberty of conscience in particular to be one of the most important—if not the most important—natural right of mankind (which they learned from Locke). Madison felt so strongly about this that he fought for an additional amendment to the Bill of Rights forbidding the states to “violate the equal rights of conscience.” Yet, this measure failed to pass.

Madison believed that “a perfect separation between ecclesiastical and civil matters” was required in order to fully secure the right of liberty of conscience. Without doing so, history had taught us that religious persecution was all but inevitable. Catholics had used the state to persecute Protestants in Catholic nations. And Protestants did the same to Catholics and to one another in Protestant nations. (This is to say nothing about how the non-Christian sects were treated!)

If you want to take a look at exactly what Madison and Jefferson thought must be done in order secure the natural right of liberty of conscience, check out the Virginia Statute on Religious Freedom, which Jefferson penned and Madison fought tooth and nail for its passage.

That statue disestablished the Anglican Church, forbade religious tests for public office and granted at least as great a degree of religious freedom as did the US Constitution’s religion clauses (I don’t want to say that the statute granted “greater” protection because the exact meaning of those very short religion clauses in the Constitution is up for debate. I personally believe that our religion clauses were modeled after this document, and that the specific provisions in this statute should be regarded as interpretive authority for the meaning of the First Amendment).

And in fact, the statute did much more than that. The entire statute is worth reading, but let me highlight some important passages. It states “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;” and “that no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.”

Notice how the word “opinion” is often used to describe any religious belief. I stress this because it evidences that—far from being founded of “Biblical Christianity” as Roy Moore claims—our country was founded on a Lockean system that solved the religious/political problem that long plagued Western nations by consigning religion, and thereby confining it, to the private sphere. In order to do this, “religious beliefs” were taken from the realm of “Truth” and consigned to the realm of “Opinion.” The net effect of this was to significantly (and rightly, in my opinion) restrict the power that “religion” had on society. As Allan Bloom describes the American Founding and religion, “there was a conscious, if covert, effort to weaken religious belief, partly by assigning—as a result of a great epistemological effort—religion to the realm of opinion as opposed to knowledge. But the right to freedom of religion belonged to the realm of knowledge.” The Closing of the American Mind, p.28. The right to religious freedom is “knowledge” because it is a natural right that belongs to all men at all times and places, regardless of whether governments recognize it or not. And this “knowledge” is ascertainable by Man’s Reason alone, unaided by Biblical Revelation.

And Jefferson’s Statute is clear that these rights belong to more than just the citizens of Virginia. It states “that the rights hereby asserted are of the natural rights of mankind….” The wording of the statute also illustrates my above point—that even though the federal government might not have had the jurisdictional power to secure the natural rights of mankind against the states, they certainly didn’t approve of the states violating their citizens’ natural rights. In fact the Virginia Statute recognizes that it had no power to restrain future Virginia Assemblies from repealing the Statute, but it sternly warned them not to do so. And here is why: “if any act shall be hereafter passed to repeal the present [Virginia Statute] or to narrow its operations, such act will be an infringement of natural right.”

So what about all of those other states that didn’t deal with religion in way that Virginia did? What about those states that had established churches, imposed religious tests for office, used funds to directly aid religion? We can we conclude that the Founders (or at least Jefferson and Madison) thought about these actions? The answer is clear: that they violated the natural rights of the citizens of those states, and were thus dissonant with the principles of the American Founding.