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Looking to the Founders: Don't Make Religion the Only Issue

by David Yee, published

Yes, I really did do that -- used "founders" and "religion" in the same sentence. It seems in the current political landscape that this is a mistake that dooms one to attacks and character assassination from the left and right -- both sides seem very eager to "fight it out" on this issue.

It's no surprise we react this way. The Founders almost completely avoided this topic during the formation of the new government, and when they did address it, the words they used were a carefully-constructed and vague compromise that resulted in saying everything and nothing at the same time.

This isn't meant to portray the debate as one of universal consent--the debate over the First Amendment was a particularly fierce one with both well-known and largely-unknown founders arguing the minutest points.

In the end, the founders made it a point to leave us with a framework that allows us to not make religion the issue to fight over--and it would probably benefit us to look at the example they left us.

The Revolution had been hard on American religion. Schisms in several denominations were directly caused by the Revolution -- from the split from the Church of England to dissent among Quakers over pacifism and involvement in the Revolution.

Catholics probably started in the worst position in Colonial America. Most of them lost the right to vote and couldn't hold office, bear arms, or join a militia. The fundamental English distrust of Catholics had affected Colonial laws and practices, and it wasn't until the creation of the state constitutions that most of these rights were restored.

Unlike the happy landscape we like to present, America had come out of the Revolution pretty battered when it came to religious beliefs.

As stated in previous articles in this series, the Constitution was signed by 39 of the 55 delegates, but would not have even passed had they not agreed to add a Bill of Rights. The sequence of these rights has an interesting tell-tale nature of the political landscape.

Issues that were hot-button topics during the Revolution: quartering of British troops, indiscriminate searches and seizures, indefinite detention without trial, lack of bail, and cruel and unusual punishments -- these all took a back burner to religion, which wasn't even an issue in the Revolution.

The fact that religion wasn't an issue in the Revolution can be seen in the Declaration of Independence, which freely invokes God in five different places and yet was still signed by most of those in attendance.

The very first words of the Bill of Rights, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...," is a strong indication that the Founders were really having to make a deliberate statement and compromise, something that was geared toward unifying the delegates and allaying fears about the increasing powers of a federal government.

So what changed?

The simple answer: not much.

The thirteen colonies that had united to fight against the British Empire were suddenly faced with the reality that they weren't as cohesive as they would have liked to portray -- especially on the issue of religion. This was an old problem in the American colonies, one that was finally reaching the point where it had to be addressed.

This isn't an argument of "absence means disapproval" or anything of the sort.

The Founders were, for the most part, a religiously devout group, but they were very diverse in their religious beliefs.

At the Constitutional Convention, there were Episcopalians, Quakers, various Protestants, two Catholics, two Lutherans, Deists, and possibly a few irreligious -- but over half were Episcopal and that was a frightening prospect to some.

Up until the formation of the Constitution, colonial and then state laws could not be infringed or changed by other state's laws -- or a federal government.

While modern history likes to portray the colonies and early United States as a land of religious freedom and liberty, the reality was slightly different. You were free to practice whatever religion was protected in your own state. Proselytizing was, for the most part, not tolerated as evidence by the case of Mary Dyer and others executed for the crimes of heresy and proselytizing.

There was a long history of religious protection being something that was handled at the state level, and a nationally endorsed or supported religion (like the Church of England) was a genuine concern.

Founding father Elbridge Gerry, whose name would later be immortalized by gerrymandering, strongly opposed the Constitution as written at the Convention in 1787. He feared the consolidation of federal power and insisted on a Bill of Rights that included the separation of the federal government and religion.

Gerry's opposition was so strong that he was one of the 16 delegates to vote against the final draft of the Constitution.

Gerry's vocal opposition cost him the chance to be a part of the ratification process of the Constitution in his home state of Massachusetts. While attending the proceedings, he eventually left after a loud shouting match with Francis Dana, the chairman of the convention.

While opposed to the Constitution's ratification, Gerry would be elected to the first House and be fundamental in ensuring the passage of the First Amendment.

Modern "religious" politicians have made religion the issue in the past 25-30 years. And while the subtext of their actions is generally one of "strengthening the Christian faith," the laws always come full circle to be used by those outside of the original audience of public opinion.

Many of these laws, like the Religious Land Use and Institutionalized Persons Act (RLUIPA), are written with such strict scrutiny clauses that it puts the government in a position to prove a compelling state interest when dealing with infringements on religious rights.

Justice Scalia has noted that such a strict scrutiny will have the end result of making "the professed doctrines of religious belief superior to the law of the land, and in effect . . . permit every citizen to become a law unto himself."

When we are too quick to legislate religious "protections" we are only adding one more layer to each person becoming their own law.

Could this have possibly been what the founders had in mind--that everyone held their own moral law, higher than the laws of the land? There's a word for when absolute individual liberty is seen as the ideal--anarchy--and I don't think it was what the founders had in mind.

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