Did the holidays end too soon for you? Then celebrate one more, this Saturday: Religious Freedom Day.
Nearly a quarter century ago, Congress established January 16 for honoring America’s first freedom. That day marks the anniversary of revolutionary Virginia’s landmark legislation, authored and championed by Thomas Jefferson and James Madison.
The “Virginia Statute Establishing Religious Freedom” in 1786 heavily influenced the language of the Religion Clauses in the First Amendment of the U.S. Constitution a few years later. A model for today’s Free Exercise Clause, the Virginia Statute proclaimed: “no man shall be . . . 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 . . . their opinion in matters of religion . . . .”
Presaging the Constitution’s Establishment Clause, the Virginia Statute declared that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”
In 1993, the same year our nation celebrated its first official Religious Freedom Day, Congress passed another landmark bill, the federal Religious Freedom Restoration Act (RFRA), by a nearly unanimous vote. The first presidential proclamation honoring Religious Freedom Day called on “all Americans to observe this day . . . as an expression of our gratitude for the blessings of liberty and as a sign of our resolve to protect and preserve them.”
Just a few months later, through RFRA, the President and Congress called on American courts to protect more vigorously Americans of all faiths against substantial burdens on their religious practices and decisions.
The Virginia Statute and RFRA share striking similarities in their histories. Both laws were championed by coalitions that were surprisingly diverse in their religious and philosophical beliefs. Both laws strongly protect religious minorities.
In the footsteps of Roger Williams and William Penn, several denominations that were minorities at the time – including Methodists, Presbyterians, and Baptists – advocated the Virginia Statute to protect the exercise of their specific faiths. They joined forces with rationalists with Enlightenment goals, like Jefferson and Madison, who sought to sever official ties between the Virginia government and the established Anglican Church.
When opponents of the Virginia Statute sought to limit it by protecting only Christians, Jefferson recorded that amendment “was rejected by a great majority.” The whole point was to protect “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”
In the case of RFRA, the ideologically disparate Senators Orrin Hatch, R-Utah and Ted Kennedy, D-Mass., with support from diverse religious groups and the American Civil Liberties Union, championed the bill, which President Clinton endorsed. Its primary beneficiaries include the minorities of our time. For over two decades, courts have used the federal RFRA (and its state counterparts) to protect Native Americans, Sikhs, Buddhists, Jews, Muslims, and Santerias, as well as Christians.
This March, the U.S. Supreme Court will hear its next RFRA case. It involves the religious rights of nuns who care for the elderly poor. The Little Sisters of the Poor are challenging the mandate of the U.S. Department of Health and Human Services that would require the nuns to provide insurance coverage for abortion-inducing drugs and devices, which would violate their Catholic faith.
The Supreme Court’s decision will determine whether RFRA continues to shield the religious practices of today’s minorities from undue government intrusion.
Last year, as the Justice Department insisted in federal courts around the country that the Little Sisters should be compelled to contradict their religious conscience, President Obama’s Religious Freedom Day proclamation offered a better idea: “[I]ndividuals should be free to choose and live their faith based upon the persuasion of the mind – and of the heart and soul.”
We at the Becket Fund for Religious Liberty heartily agree. We believe Jefferson and Madison would too.
Hannah C. Smith twice clerked at the United States Supreme Court and is Senior Counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. The Becket Fund is counsel at the U.S. Supreme Court for the Little Sisters of the Poor. Follow Hannah on Twitter @hclaysonsmith.