Freedom of Religion: America’s Greatest Invention

Editor's Note: Steven Waldman is one of our most articulate thinkers on the subject of religion. He was National Editor of US News & World Report and founded the multifaith religion website Beliefnet.com. He has also published several books including  Sacred Liberty: America's Long, Bloody, and Ongoing Struggle for Religious Freedom and Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty. Waldman currently runs Report for America, a nonprofit dedicated to strengthening our democracy through local journalism.  
     —The Editors

The Reverend John Waller was preaching in Caroline County, Virginia, in 1771 when an Anglican minister strode up to the pulpit and jammed the butt end of a horse whip into his mouth. Waller was dragged outside, where a local sheriff beat him bloody. He spent 113 days in jail—for the crime of being a Baptist preacher. When the Reverend James Ireland was jailed in nearby Culpeper County, he continued to preach through his cell’s barred windows. To stop him, Anglican church leaders galloped horses through the crowd, and hecklers urinated in his face. The Reverend David Thomas’s services were disrupted by protesters who hurled live snakes and a hornet’s nest into the room. 

These were among 150 major attacks against Baptists in Virginia between 1760 and 1778, many of them carried out by leaders of local Anglican churches — and, significantly, many of them within a horse ride of a young James Madison. 

“This vexes me the most of any thing,” Madison, then twenty-three, complained to his friend William Bradford in 1774. He told Bradford that five or six “well-meaning” Baptist ministers were at that moment imprisoned in neighboring Culpeper County for what he considered an absurd charge—preaching the gospel and “publishing their religious Sentiments.” In the two years since Madison returned home from college in New Jersey, he had “squabbled and scolded” about the abuse of the Baptists but to little avail: “That diabolical, Hell-conceived principle of persecution rages.” 

As alien as these kinds of attacks seem today — Anglican ministers brutalizing Baptist ministers on the eve of the American Revolution? — they were much more common in our history than we like to admit. Those who demand religious rights have too often been mocked and murdered, tarred and feathered.

The same nation that boasts of its commitment to religious liberty also allowed for the following injustices 

• In the seventeenth century, Massachusetts hanged people for being Quakers.

• When the Declaration of Independence was  signed, nine of the thirteen colonies barred Catholics and Jews from holding office. 

• In 1838, the governor of Missouri issued Executive Order 44, calling for the “extermination” of the Mormons.

• Protestant mobs burned convents, sacked churches, and collected the teeth of deceased nuns as souvenirs during anti-Catholic riots in the 1830s — just one of the many spasms of “anti-papism” that roiled America from the colonial era until well into the twentieth century. 

• Hundreds of thousands of Africans were stripped of not only their liberty but also their religions when they were brought to America, in what one historian called “a spiritual holocaust.” 

• After the Civil War, the United States government banned many Native American spiritual practices while coercing indigenous children to convert to Christianity. 

• Before and during World War II, Jehovah’s Witnesses were imprisoned, beaten, and even castrated for refusing, as a matter of conscience, to salute the American flag. 

Yet today we enjoy such robust religious freedom that this litany of persecutions is horrifying. Proof of how far we have come was on display in 2016 when the United States Supreme Court began its session by seating six Catholics and three Jews as justices. Men and women who would not have been allowed to hold office in early America would pass judgment on paramount questions of state, including religious liberty. Progress can also be seen each time Congress convenes, with invocations offered by every flavor of Christian clergy as well as by Muslim imams, Hindu priests, and Jewish rabbis.

Or consider the story of Parley Pratt, one of the original “twelve apostles” who helped found the Church of Jesus Christ of Latter-day Saints. Pratt was imprisoned in 1838 with Mormonism’s founder, Joseph Smith, and driven out of Missouri by mobs of angry Protestants. Pratt had twelve wives and was later murdered by the estranged former husband of one of them. His relatives fled to Mexico to avoid prosecution for polygamy. Yet in 2012, the Republican Party — which had earlier led the drive to ban Mormonism — chose as its nominee Parley Pratt’s great-great-grandson Mitt Romney.

The strength of America’s approach may be judged not just in the relative absence of persecution but in the nation’s spiritual vibrancy — three hundred sixty thousand houses of worship, from Adventist to Zoroastrian, from urban storefront churches that seat a dozen to Christian mega-churches that hold forty thousand. Spiritual practice thrives even more in the privacy of our homes: 76 percent of Americans pray regularly. Notably, affluence has not dampened our religiosity as it has in other countries.

The Pew Research Center recently mapped the relationship between wealth and religious practice. On the upper left of the chart is a cluster of countries that are religious but poor — Afghanistan, Nigeria, Djbouti and Guatemala. On the lower right are wealthy but secular nations including Norway, Switzerland, Ireland and Germany. Way off by itself on the right edge of the chart is a single stray dot, the United States — wealthy and religious. America has reduced religious persecution without subduing religious passion. 

This accomplishment is rare in world history. For millennia, societies have puzzled over how to have both religion and freedom. Government efforts to promote a single faith often had short-term benefits — the favored religion would gain influence, wealth, and security — but they levied tragic costs as well: wars against heretics, persecution of religious minorities, and corruption of the faith itself.

Thomas Jefferson complained that the quest for doctrinal orthodoxy had “made of Christendom a slaughter house, and at this day divides it into Casts of inextinguishable hatred to one another.” 

Religion often has been a powerful source for good, yet there’s no denying the frequency with which it devolves into crusades, inquisitions, holy wars, jihads, genocides, pogroms, civil wars, and terrorism. The problem is not religion per se; atheism’s historical track record has been no better. Joseph Stalin, Mao Zedong, Adolf Hitler, and Pol Pot all attempted to destroy or suppress religion, and in fifty years they killed more people than had died in all the religious wars of the previous millennia. Rather, the troubles arise because majority groups have invariably expected their faith to dominate, usually at the expense of religious minorities. 

Today, most nations still have not found the right balance. More than three-quarters of the world’s population lives in countries with limited religious freedom. Most countries still have an official or government-preferred religion. Varieties of oppression have flowered: Eastern Orthodox Christians harass Protestants (Russia); Muslims persecute Coptic Chris- tians (Egypt); Buddhists attack Muslims (Myanmar); Muslims assail Protestants (Somalia); Protestants clash with Catholics (Northern Ireland); and Hindus agitate against Pentecostals (India). Even Western nations committed to liberte? have stumbled—for example, in 2016 when French policemen forced female Muslim beachgoers to strip off their head scarves and burkinis because of the disrespect their religiously mandated clothing ostensibly showed to secularism. 

The concept of religious freedom is not unique to America, but the specific model that America created is unusual and often misunderstood.  It goes beyond tolerance, equal rights or separation of church and state.  America’s unique approach to religious freedom is one of its greatest inventions. The more successful American paradigm has emerged over many years, shaped through civil disobedience, elections, lawsuits, coalition building, and bloodshed. Won through great struggle, religious freedom achieved an exalted status as a core element of our national identity. In allowing Americans to follow their souls’ yearnings, religious freedom has become a sacred liberty.  

What is the secret sauce?

The philosopher-politician that did the most to advance religious freedom was James Madison. First, he believed that the best way to advance religion was to leave it alone. This was a radical idea at the time. For most of human history, governments had figured that the way to promote religion was to get in there and use the power of the state – to pay ministers salaries, build churches and compel worship.  Madison – highly influenced by the evangelical Protestants of Virginia – believed that religion would flourish if government got out of the way. He opposed not only persecution but even well-intentioned state efforts to help religion. He defeated Patrick Henry’s efforts to have a tax to support ministers in Virginia. 

But there was a second component to Madison’s model, one much less discussed. He argued that true religious freedom will require not only “parchment barriers” but also a “multiplicity of sects.”    In modern terms, that means we all benefit if there are a wide variety of different faiths, with no one movement able to dominate others.

In 1819, Madison reflected on whether the First Amendment had worked well. Not surprisingly, he said, yes it had – but his reasons were revealing. The evidence of success was not so much the absence of persecution but the presence of religious vitality. “On a general comparison of the present & former times, the balance is certainly & vastly on the side of the present, as to the number of religious teachers, the zeal which actuates them, the purity of their lives, and the attendance of the people on their instructions. . . . The number, the industry, and the morality of the priesthood & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” 

In truth, the First Amendment didn’t do much at first in part because Madison lost on one of this primary goals, having religious freedom applied against state and local governments, in addition to the federal government.  So we had a few hundred years of bloody battles over religious freedom. But if we look closely we can see the wisdom of the Madisonian model playing out over the centuries.

The multiplicity of sects grew – often because of immigration, which would prove eventually to be an important positive force in promoting religious freedom. The waves of Catholic newcomers were resisted with language that may resonate today. Samuel Morse, an inventor of the telegraph and the Morse Code, warned, “Up! Up! I beseech you…. Shut your gates.” In 1835, the famous minister Lyman Beecher warned that Catholic immigrants were a “dark minded, vicious populace — a poor, uneducated reckless mass of infuriated animalism,” and that the Catholic Church was working to “throw down our free institutions.” The day after one of Beecher’s sermons, in Boston, a mob burned down the Ursuline Convent in Charlestown. While the mother superior hurried the nuns and the students out the back, the men rampaged, destroying Bibles, the nuns’ belongings, and musical instruments. They raided the crypt, collecting the teeth of deceased nuns as souvenirs. 

But eventually the Catholic pushed back and did exactly what Madison had hoped, preventing the larger denomination, the Protestants, from imposing its will. For instance, it was not atheists or Jews who stopped public schools from forcing children to learn a particular branch of Protestantism. It was Catholics.  In the 1830s, some 30 people died in the Philadelphia “Bible Riots.” Catholic churches and houses were burned to the ground. The issue: Catholics resisted efforts by the public schools to force Catholic children to read only the King James Bible in class and to recite the Protestant version of the Ten Commandments. 

Sometimes the “multiplicity of sects” grew through home grown religious entrepreneurship – by men like Joseph Smith, the founder of the Church of Jesus Christ of Latter-day Saints.  Like other religious minorities throughout American history, Mormons were depicted as alien and unwilling to accept democracy. In the fall of 1838, Missouri Governor Lilburn Boggs issued Missouri Executive Order 44, declaring that “the Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary for the public peace.” 

Three days after the order was issued, on October 30, 1838, the biggest massacre of a religious minority in American history occurred. About 250 Missourians, including a state senator, arrived at Haun’s Mill, a small Mormon community, and opened fire. The mob murdered nineteen Mormons, including children, and wounded fifteen. In 1862, in an effort to destroy the religion, the Republican Congress passed the Morrill Anti-Bigamy Act, which outlawed polygamy, annulled the incorporation of the Mormon Church, and forbade the church from owning real estate valued at more than $50,000. In 1871, Brigham Young, the head of the church, was indicted for practicing polygamy. From 1882 to 1893, nearly 1,000 Mormons were jailed. By sticking to their principles and refusing to renounce their own family structures, Mormons engaged in massive civil disobedience. 

But the brutal persecution of Mormons and the resistance it provoked, eventually, moved religious freedom forward.  As the number of Mormons grew, Congress decided that they would accept Utah into the union (along with several other states with large Mormon populations) as long as the church renounced polygamy.  (That, too, is a pattern we see with religious freedom. Sometimes the religions have to compromise. But it was a step forward for religious freedom too, as America grudgingly provided robust religious freedom rights for a religion that was widely loathed.

Over time, a consensus has gathered around the idea that we can have religion in the public square as long as we are inclusive. A telling milestone was achieved on September 13, 2000 when Venkatachalapathi Samuldrala’s, the priest of the Shiva Vishnu Temple of Parma, Ohio opened a session of the US House of Representatives. Samuldrala did not mention Krishna or Vishnu but rather prayed that all Americans would be free from disease and misery. 

The Family Research Council, one of the leading Christian conservative groups, denounced the House’s decision to allow a prayer from a Hindu priest. Its statement no doubt spoke for millions of Christians. It is one more indication that our nation is drifting from its Judeo-Christian roots. . . . Alas, in our day, when “tolerance” and “diversity” have replaced the 10 Commandments as the only remaining absolute dictums, it has become necessary to “celebrate” non-Christian religions — even in the halls of Congress. Robert Regier and Timothy Dailey, the authors of the statement, asserted that the founders envisioned this as a Christian nation and never intended to give legitimacy to non-Christian faiths. “Our founders expected that Christianity — and no other religion — would receive support from the government as long as that support did not violate people’s consciences and their right to worship. They would have found utterly incredible the idea that all religions, including paganism, be treated with equal deference. . . . As for our Hindu priest friend, the United States is a nation that has historically honored the One True God. Woe be to us on that day when we relegate Him to being merely one among countless other deities in the pantheon of theologies.”

But then something curious happened. The Family Research Council partly retracted the statement. The council no doubt still believed that Christianity was, is, and always should be the driving force in America, but its executive vice president, Chuck Donovan, issued a clarification. “It is the position of the Family Research Council that governments must respect freedom of conscience for all people in religious matters. . . . We affirm the truth of Christianity, but it is not our position that America’s Constitution forbids representatives of religions other than Christianity from praying before Congress.” 

The conservative Christian world was really struggling but they did indeed embrace pluralism. 

In some cases, religious persecution led to no immediate salutary outcome, though even there, if you view the arc of history as long enough, one can see ways in which the Madisonian model worked out. One of the least discussed acts of religious persecution was against Native Americans. Perhaps because the government harmed Native Americans in so many other ways we tend to forget this period after the Civil War when the policy of the U.S. government was to civilize the Indians by forcibly converting their children to Christianity. The infamous boarding schools did not allow for native practice and instead required them to learn Christian belief and practice. “As we break up these iniquitous masses of savagery,” explained Merrill Gates, chairman of the Board of Indian Commissioners (and former president of Amherst College), “as we draw them out from their old associations and immerse them in the strong currents of Christian life and Christian citizenship, as we send the sanctifying stream of Christian life and Christian work among them, they feel the pulsing life-tide of Christ’s life.” 

By 1890, 75 percent of Indian children in school were in immersion programs, according to Jon Reyhner and Jeanne Eder in American Indian Education. Senator George G. Vest explained that “it is impossible to do anything for these people, or to advance them one single degree until you take their children away.”

It took a long time before the religious rights of Indians were recognized but when it happened the implications were significant. A man named Al Smith was a Native American who had been sent to Christian boarding schools as a boy. He ran away numerous times and ultimately became an alcoholic. Eventually, he found Alcoholics Anonymous, sobered up, and joined the Native American Church, an entrepreneurial new religion that sprang up late in the nineteenth century in the wake of the decimation of Native American tribes. It combined a pan-Indian message, Christianity, and the ingestion of peyote, a hallucinogen, which had been used by Native American tribes in North America for at least five hundred years. Smith maintained that peyote use was an essential part of the religion and helped him to stay sober. But in 1983 he was fired from his job on the staff of an addiction center and then was denied unemployment benefits by the state because he’d used an illegal drug. He argued that this was a violation of his religious freedom.

In 1990, in Employment Division v. Smith, the US Supreme Court ruled against Smith — and ditched the prevailing standards for deciding such cases.  In his opinion for the majority, Justice Antonin Scalia wrote that because the law was neutral in intent, there could be no exemption for religiously motivated behavior. Such an approach would, Scalia wrote, “lead towards anarchy.” 
   
Public reaction to the Smith decision was harshly negative among liberals and conservatives alike. In 1993, Congress proposed the Religious Freedom Restoration Act, which reestablished the idea that government could not infringe on religious rights even through neutral secular acts without a compelling reason. The law’s main sponsors in the House of Representatives, where it passed unanimously, were two Jews, Charles Schumer and Stephen Solarz. Its sponsors in the Senate, where it passed 97–3, were Ted Kennedy, a Catholic whose grandparents had told him about the “No Irish Need Apply” signs that used to be posted outside businesses in Boston, and Orrin Hatch, a conservative Mormon from Utah.

“As a member of the Church of Jesus Christ of Latter-day Saints,” Hatch wrote, “I know of the failures of the state to protect the faithful. I am a member of a faith that, in this Republic’s short history, was brutally, murderously persecuted.”

This case and the Congressional reaction incorporated into the American model an idea that has still not been embraced in most of the rest of the world: avoiding persecution is not sufficient for guaranteeing religious freedom. We should also be careful to pass secular laws that even unintentionally infringe on religious rights or behavior.  

Our society must often make special accommodations for the religious. We avoid, if possible, forcing people to choose between their faith and the law. That’s why Seventh-day Adventists don’t have to work on Saturdays, Quakers don’t have to serve in the military, and Catholic hospitals don’t have to perform abortions. Religious excuses get special respect. Jews can skip school for Yom Kippur, but Italians cannot take off for Columbus Day.  

It is also why we have current debates about whether bakers should have to serve cakes at same-sex weddings or why Muslim women in some cities have special times set aside for single-gender swimming in public pools. This latest element in religious freedom – the pledge to accommodate religious believers in a variety of ways – is the hardest of all to figure out, but it also makes our approach far more robust than others.
 
The core principles are limited government, religious fragmentation, immigration, accommodation to religious sensitivities. 

For these to work, we need an all-for-one, one-for-all attitude among America’s religious groups.  Each religious group that has gained rights has ended up strengthening the whole system for other religions. Conversely, redefining religious freedom as meaning just the protection of one’s own faith actually undermines the whole system.

Sometimes Americans have been able to export our unique model.  A dramatic effort by Catholic leaders in the United States, led by an academic named John Courtney Murray, prodded the Vatican to embrace the American approach to religious liberty. Other countries have experimented with religious freedom. But none so far have created a model that is both as strong and nuanced as the American approach. 

In 2017, Russia banned Jehovah’s Witnesses. Russian Orthodox leaders attacked the Witnesses on the grounds that they insulted the and, in the words of one court ruling, advocated “the exclusivity of one religion over another, thus indicating the presence of signs of incitement of interreligious hostility.” Dozens of Witnesses were indicted, and, according to the United States Commission on International Religious Freedom, there have been frequent incidents of “law enforcement officers interrupting religious services suddenly bursting into Kingdom Halls, wearing masks and brandishing their automatic weapons, when children, women and elderly people were present.” The Russian government has also harassed Muslims, Pentecostals, evangelicals, Mormons, atheists, and Hare Krishnas. 

Pakistan has used anti-blasphemy laws—of the sort employed by the Puritans in the seventeenth century—to brutally persecute those not following a fundamentalist form of Islam. As of June 2016, the government had given death or life imprisonment sentences to at least forty people for insulting Muhammad, the Quran, or Islam. Most victims were Muslim, but authorities have also targeted Christians.

In Saudi Arabia, a court sentenced a twenty-eight-year-old man to ten years in prison and two thousand lashes because he had tweeted in favor of atheism. Saudi regulations make it a crime to “call . . . for atheist thought in any form.” 

We should appreciate our unusual achievement and what our ancestors had to sacrifice.

That’s why the recent attacks on the religious freedom of American Muslims have been so worrisome. They indicate that the consensus around the American approach is fragile.  In 2015, a poll showed that only half of Republicans were willing to say that Islam should be legal in America. Donald Trump’s attacks on Muslims – including his proposed ban on Muslims immigration – ran against the pillars of the model.
   
Let’s not destroy our invention. Indeed, as the world becomes more interconnected, America has something great to offer: a paradigm for how religious difference — so often the source of violent division — can be harnessed or even turned into strength. John Winthrop thought America would be a city upon a hill because it would show how purified religion could create a righteous society.

Going forward, we should instead embrace the idea that our status as that shining model will come not from religion alone but from religious freedom — not so much from our unique status as a providentially favored nation as from our unique status as the champions of this sacred gift.

In the future, the world can benefit from what America has learned, if we manage not to forget it ourselves.