Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, January 16, 2018

Religious Freedom Day, and the Virginia Statute

Today is Religious Freedom Day, and President Trump issued this proclamation:

      Faith is embedded in the history, spirit, and soul of our Nation.  On Religious Freedom Day, we celebrate the many faiths that make up our country, and we commemorate the 232nd anniversary of the passing of a State law that has shaped and secured our cherished legacy of religious liberty.

      Our forefathers, seeking refuge from religious persecution, believed in the eternal truth that freedom is not a gift from the government, but a sacred right from Almighty God.  On the coattails of the American Revolution, on January 16, 1786, the Virginia General Assembly passed the Virginia Statute of Religious Freedom.  This seminal bill, penned by Thomas Jefferson, states that, “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”  Five years later, these principles served as the inspiration for the First Amendment, which affirms our right to choose and exercise faith without government coercion or reprisal.

Is the proclamation accurate? The relationship between the Virginia statute and the First Amendment is complicated. To say that the statute "served as the inspiration" for the Amendment is so overstated that it's wrong. (It tracks the Supreme Court's overbroad assertions in Everson v. Board of Education.) As Steve Smith, Kurt Lash, and others have emphasized, the Amendment also had support from states that did not go as far in recognizing religious freedom or church-state separation--even from New England states that maintained systems compelling taxpayers to support clergy, a practice the Virginia statute forbade. (It said that "no man shall be compelled to frequent or support any religious worship, place, or ministry.") The First Amendment reflected, significantly although not entirely, a "federalism" position confirming that the matter of religion would be outside federal power, left to the states: Virginia and New England could each follow their own policy.

But "not entirely." It is likewise wrong to say the Virginia statute--more precisely, as Trump's proclamation says, its "principles"--had nothing to do with the First Amendment. Talking specifically about "inspiration," there is the connection  through Madison, who led the drives to adopt both the Virginia statute and the First Amendment. The dissenting evangelical groups who pressed (and pressed Madison in particular) for the Amendment advocated for religious freedom as a substantive right, not as a means of protecting Virginia's or other states' discretion to decide all religious-freedom matters however they wished.

Among the principles embodied in the Virginia statute, there was wider consensus across the states on what would typically be called principles of free exercise--i.e. the right to profess and exercise a faith without coercion--than principles solely of non-establishment--e.g. no money in any form to support religious institutions or activities. Even the New England states, with their funding for clergy, simultaneously had provisions guaranteeing free exercise to all faiths. Trump's proclamation quotes a "free exercise" portion of the Virginia statute.

And the Virginia statute had greater influence down the road, as all states eliminated their taxes for clergy by 1833. In that sense, the proclamation is correct that the statute "has shaped and secured our cherished legacy of religious liberty."

(Finally, just what our "legacy of religious liberty" means in all contexts of tax-supported funding is another question. The consensus rejection of  affirmative funding uniquely for clergy does not decide the question whether religious providers of secular services--education, social services, healthcare--can, or even must, be included in general programs of funding that support those services. Principles of religious liberty might disapprove such inclusion--but they might also call for it. That's the issue the Court is working through today.)


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