Many of the liberties we have today are taken for granted. Without an education in political history, it can be difficult to know how we earned our fundamental rights. In the case of religious liberty, people generally want to have the right to practice any religion they wish. If the state interferes with that right, it is a violation of negative liberty. A union of religion and state also interferes with positive liberties regarding religion. In this paper I will argue that the first amendment’s freedom of worship provision was a necessary step in securing both positive and negative liberties for all Americans.
The separation of church and state was a contentious issue in colonial times. Advocates for their union argued that “widespread religious faith was necessary to ensure a virtuous citizenry” (Gillman, Graber, and Whittington, 2021:40). Prior to the Bill of Rights, western governments upheld laws that were seen as divinely ordained by God, usually through their connections to Biblical passages like the Ten Commandments or the gospels. Some colonial states paid for religious operations; their laws required people to worship the Christian God and exercise behavior that was consistent with Christian virtues. Some people were even taxed to support the church in their local community.
Advocates for separation of church and state espoused religious tolerance and the absence of state interference in their vision. They did not believe states should be able to collect taxes for religious operations, or that religion and government were incorruptible together. John Dickinson, one of the founding fathers, wrote in 1768: “By mixing them together, feuds, animosities and persecutions have been raised, which have deluged the World in Blood, and disgraced human Nature” (John Dickinson, 1768:60-61). Statements like these reflected the general mood for separation at the time. The consensus among the founding fathers was that religion and government were mutually corrupt when they operated together, leading to the Establishment Clause being inserted into the first amendment of the Bill of Rights.
An example of how separation is regulated in the U.S. is the fact that the American people are not taxed to maintain religious establishments. In colonial times this was not the case, as nine out of thirteen colonies taxed citizens to support houses of worship (Green, 2021). If the American government collected funds to support houses of worship, this would mean they were effectively establishing a state religion, because taxpayer dollars would have to be redirected into supporting them. This would be like forcing a Christian to pay for a mosque in the local community, something that is not in the best interest of the Christian and is a violation of their right to worship.
In his landmark 1958 paper, Irving Berlin introduced two types of liberty: negative and positive. Negative liberties are those in which an individual has freedom from outside interferences; positive liberties are those freedoms which individuals can act upon their own will (Berlin, 1958:2-8). When religion and the state exercise joint power over the citizenry, this is a violation of negative liberty because the state has interfered with the innate right to worship. Positive liberty can also be infringed if the state has not done enough to support the citizen’s will to worship a religion of their choosing. According to Berlin (1958:8), the citizen wishes to make decisions that “depend on myself, not on external forces of whatever kind”. An external force (the state) would be violating positive liberty if it forced the citizen to practice a religion they did not believe in, which includes an oath of office requiring the state’s mandate.
I believe the way separation of church and state is regulated is a fair and just representation of both qualities of liberty. I will first elucidate this by deferring to reason. John Locke, in his Letter Concerning Toleration (1689), pointed out that if a religion happened to encourage something unlawful, like sacrificing a cow (much less, a human), the magistrate should not be obligated to side with religion over the law, for most people would view any type of sacrifice as a violent, useless act, whether they were religious or not (Gilman et al, 2021:44). This would effectively give special rights to an entity that is above the law, which has no interest in the common liberty of a populace. Interference by a state which forces people to pay taxes supporting an unlawful ritual is a clear violation of negative liberty.
Another appeal to reason rests in the fact that very few religions openly command that they operate with any given political state. The gospels themselves make no mention of establishing Christianity as a commonwealth (Gilman et al, 2021:44). Locke (1689) described Jesus as tolerating all religions; therefore, the very idea of integrating it with a political state seemed ludicrous to many Enlightenment philosophers. Giving state powers to a religious institution aroused the interpretation that at some point in history this institution got entangled with politics in ways that were never intended by the religion’s founders. To some this was seen as an infraction on the liberty of believers, for many felt like the state should have nothing to do with the religion they practiced.
My second point is that in colonial America, religious intolerance was so rampant that many negative and positive liberties were oppressed. Minority religious sects were frequently persecuted for their beliefs (Gilman et al, 2021:46), sometimes ending in violence and death, as in the Salem Witch Trials. In some colonies, laws were passed requiring everyone to attend church. These were blatant interferences on negative liberty that the founding fathers sought to correct.
Positive liberty was also oppressed by state laws regarding religion. Many state constitutions required religious tests for those wanting to hold public office. If an applicant failed the test, they were ineligible to hold it. Article VI of the constitution was written to address this violation of liberty: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (U.S. Const., art VI). James Madison explained it more generally in his Memorial and Remonstrance against Religious Assessments: that by forcing religion on the populace, the majority is allowed to “trespass on the rights of the minority” (Gilman et al, 2021:101).
Currently, positive liberties are not being violated in the United States’ regulation of this issue, but I believe they are in other nations. We see this happening in the Middle East, where nations that are intimately tied with Islam, such as Iran and Afghanistan, have a poor civil rights record. In the case of Taliban-led Afghanistan, women are particularly vulnerable, with other infringements on corporal punishment, expression, and education (Human Rights Watch, 2020). Genocides involving religious groups with a political license to kill are still going on- recently with the Rohingya Muslims of Myanmar, where Buddhism is the state religion. It goes to show how states that sponsor religion tend to have less regard for human rights than advocates like William Blackstone in the 18th century might have expected. Blackstone thought that “all moral evidence, all confidence in human veracity, must be weakened by irreligion” (Gilman et al, 2021:41). This is not the case when one considers all the possible ways in which state-sponsored religion devalues human rights, demonstrated by an increase in the violations stated above.
Finally, I will stress the importance of how the separation of religion and state still allows for religious liberties in government settings. Just because the government may not proclaim a state religion does not mean it must always act against religion. Despite prohibitions against it, the government must be wary about encroaching on the positive liberties of believers. Green (2021) points out that government “may acknowledge religious traditions and customs, use religious symbols and discourse in ecumenical ways, and financially assist activities of religious bodies that advance the commonwealth”. Examples of positive liberties the government maintains for religious citizens include not discriminating against a religious charitable organization for tax purposes; recognizing Christmas as a federal holiday (FederalPay.org); and allowing communal expressions of faith.
It is important to remember that the freedom to worship is not an attack on any specific religion. It only means that some liberties for the majority faith must be sacrificed so the state to function better as a unit. These are the same liberties that create violations of negative liberty for non-believers. So long as negative liberties are not being violated, the state can uphold positive liberties for the majority faith. Berlin’s theory is crucial in framing this because of the way rights are often compromised in the Constitution and the Bill of Rights. Some rights were deliberately left vague by the writers, so that they could be debated or reinterpreted in future court settings that would require a new perspective due to shifting historical contexts. There is often an interplay between negative and positive rights: a balance that must be maintained between them. As in the above example, sometimes the positive liberties of a majority need to be sacrificed in order for the negative liberties of a minority to be respected. Another example regarding religion is that the government may allow communal expressions of faith- a positive liberty- but it must also prohibit public school-sponsored religious expression in response to negative liberty. Allowing religious expression in an educational setting would be considered interference from the government, yet allowing it in a communal setting, such as a legislative hall or football field, would not (Green, 2021).
Our Constitution has many clauses that allow for debate on compromises like these. In each compromise there seems to be a balance between positive and negative liberty, if not fully then at least partially. John Locke saw the big picture when he wrote his Second Treatise on Government (1690), where he maintains that doctrines from a king endowed by divine right must be replaced a “social contract”, wherein all citizens and those in authority must make some compromises of their liberty to maintain order in society (Green, 2021). Madison reiterated this in his Memorial and Remonstrance against Religious Assessments (1785). His refutation of the attempt to install a state religion in Virginia involved a memorable statement: “The bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he many employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages.” (Gilman et al, 2021:101). Here we see Madison restating Locke’s position on separation; that the divine right to pass judgments from authority figures is superseded by important elements of a democracy, including the social contract, the use of juries in deciding cases, and debate among written laws.
The separation of church and state is one example of many where positive and negative liberties must be weighed in balance to secure civil rights for all Americans. The freedom of worship was a crucial part of the first amendment because positive and negative liberties had been violated without it. Positive liberties that can be violated under a religious state include removing the will to practice a desired religion; removing the freedom to express one’s religion; removing the freedom to be educated without religious intrusion; and the requirement of religious tests to hold public office, which could also be interpreted as a negative liberty. Other negative liberties that can be violated include the interference of practicing one’s religion; the forcing of people to pay taxes supporting unlawful rituals; the interference of the state with religious identity (even when the state sponsors the same religion); and persecution for beliefs that often involve violence or, at worst: death and genocide. For the most part, the Bill of Rights protects against negative liberties, so long as they are not causing harm to anyone. When they do cause harm, the positive liberties of others are acknowledged to balance the equation, which is why we have amendments to certify changes in the Constitution. That is how the framers of the Constitution intended it to be; their vagueness allowed for necessary debate on a range of issues, not the least of which is religious freedom. The fact that no amendment has been written for freedom of worship is a testament to its strength as a primary right.
Berlin, I. 1958. “Two Concepts of Liberty” In Isaiah Berlin (1969) Four Essays on Liberty. Oxford: Oxford University Press.
Gillman, Graber, and Whittington. 2021. American Constitutionalism, Volume II: Rights and Liberties, 3rd Ed. New York: Oxford University Press.
Federalpay.org. 2021. “List of Federal Holidays.” Retrieved Sep 16, 2017 (https://www.federalpay.org/holidays)
Human Rights Watch. 2020. Retrieved Sep 17, 2021 (https://www.hrw.org/report/2020/06/30/you-have-no-right-complain/education-social-restrictions-and-justice-taliban-held#)
John Dickinson, Pennsylvania Journal, May 12, 1768, reprinted in The Founders on Religion, ed. James H. Huston (Princeton, NJ: Princeton University Press, 2005), 60–61.
Locke, John, 1632-1704. “A letter concerning toleration” Buffalo, New York: Prometheus Books.
U.S. Constitution, Article VI.
