Religious Freedom: A history

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Thomas Wells | Buy at

By Riley Manning

Daily Journal

In recent months, the concept of religious freedom has become central to an often embittered national discussion, as bills in Arizona, Kansas, Idaho, Mississippi, and elsewhere move to allow business owners to turn away not only homosexual customers, but anyone they feel serving would violate their faith.

The Arizona bill, Senate Bill 1062, was, in fact, a revision to its current state Religious Freedom Restoration Act. Around 15 other states have such legislation. Originally, its laws protected “persons” rights to “act or refuse to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.”

SB 1062 would extend that right past religious assembly or institutions to include “any individual, association, partnership, corporation, estate, trust, foundation or other legal entity.”Ultimately, Arizona Governor Jan Brewer vetoed SB 1062, saying the broadly worded bill could result in “unintended and negative consequences.”

Mississippi’s own bill, SB 2681, was stripped in February of its provision allowing a defendant in a discrimination lawsuit to claim a burden being placed on his or her religious beliefs.

The debate over exactly what constitutes “religious freedom” has evolved since it was added to the U.S. Constitution in 1791, in ways even the founding fathers may not have expected.

Original Context

Professor Stephen Middleton, who specializes in constitutional history at Mississippi State University, said it was important to understand the Constitution was formed to replace the Articles of Confederation under which Americans were governed.



“The creation of the Constitution by the Constitutional Convention of 1777 shifted power from state government to central government,” Middleton said. “Non-Protestants, people like Jewish-American Jonas Phillips, were concerned about a government being run by people whose faith was different.”

Professor Paul Finkelman is an expert in constitutional law, history, and freedom of religion at the Albany Law School in Albany, N.Y., added that before the American Revolution, most colonies had official, established churches paid for by taxes. Massachusetts had the Congregational Church, Virginia was Anglican, which became the Episcopal Church, New Jersey was Presbyterian, etc.

“In fact, Baptists were heavily persecuted, jailed, even, because they weren’t considered as legitimate members of the clergy,” he said. “The founding fathers themselves were not a particularly religious group. For them, the place of religion in politics was a formal tip of the hat and not much more.”

Others worried a strong central government would lead to a monarchy, and the Bill of Rights was adopted in 1791 to placate these Anti-Federalists. The Bill of Rights included under the First Amendment a two-pronged approach to religious freedom, the Establishment Clause and the Free Exercise Clause.

“The Bill of Rights was a restraint on federal power,” Middleton said. “When you think about it, these laws were never motivated by fear of individuals, but of central power.”

The current discussion of religious freedom versus civil rights, Middleton said, was shaped by the 14th Amendment. The 14th Amendment followed the Civil War, and assures all citizens equal protection under laws and access to public places.

“Basically, the 14th Amendment says the state cannot use its power to limit civil rights,” he said. “I’m worried ‘religious freedom’ has become a kind of buzz phrase today. If people are using religion to pass laws about religion, they are ignoring the 14th Amendment, as well as the history of the law.”


While the Establishment Clause of the First Amendment was meant to clearly separate church and state, the debate over what “free exercise” of religion means has gone back and forth for 150 years.

In 1879, George Reynolds, member of the Church of Jesus Christ of Latter-day Saints, was tried by the Supreme Court for bigamy.



Though he argued he couldn’t be found guilty if he committed the crime of bigamy with the intent of following his religion, he was convicted.

“The court decided ‘free exercise’ meant a person could believe whatever they want, but not do whatever they want,” Finkelman said. “As a Mormon, it was OK to believe in the practice of polygamy, but under the law, you couldn’t do it.”

In the 1960s, the issue of religion began to arise in cases regarding unemployment compensation.

In the Supreme Court case of Sherbert v. Verner, Seventh-day Adventist Adell Sherbert was fired when she refused to work on the Sabbath after her employer changed her previous work schedule. When Sherbert applied for unemployment compensation, she was denied.

“Her employer argued she was fired for cause. She was supposed to work that day and didn’t show up,” Finkelman said. “The court ruled her employer had a right to fire her, but to deny her unemployment compensation was to place a burden on her right to free exercise.”

But the right to free exercise was tested again in a 1990 Supreme Court case involving Native American Church members Alfred Smith and Galen Black, both counselors at an Oregon drug rehabilitation clinic.

At the time, the drug peyote was outlawed nationally, but Finkelman said most states granted exemptions for the drug for the Native American Church.

“Peyote is made from cactus seeds and is a crucial part in some Native American Church ceremonies,” Finkelman said. “It’s not a pleasant drug. It induces vomiting and hallucinations. But for Smith, it’s no different than communion wine is for Roman Catholics.”

Finkelman said Smith was a former drug addict and alcoholic, who claimed his faith helped him reach sobriety. After attending a peyote ceremony, Smith was told by his employer to go through the rehab program as per terms of employment. When Smith refused, he was fired.

The court ruled in favor of Oregon, the first time the state won over a believer in an unemployment compensation case.

“It was dramatic because it meant no exemptions for laws of general applicability, that is, laws not aimed specifically at religion and apply to everyone,” Finkelman said.

Religious Freedom Restoration Act

The peyote case led to the Religious Freedom Restoration Act in the 1990s, Finkelman said, which provides accommodations for those whose religion forces them to violate laws of general applicability.

“In regards to the Smith case, RFRA was meant to ensure you can do things in the privacy of your church and not be fired at work for them,” Finkelman said.

But soon the RFRA was put to different uses.

The 1997 case, the City of Boerne v. Flores, arose when the Catholic Archbishop of San Antonio, applied for a permit to enlarge a 1923 church, which its congregation had outgrown. However, the church fell under the zoning of a historic district, which prohibited new construction.

The City of Boerne won the case at the District Court level, but Flores appealed to the Court of Appeals, which reversed the District Court’s decision.

When Flores filed a judicial review, the Supreme Court found the RFRA unconstitutional. In response to the case, some individual states passed state RFRAs which apply to state and local government.

“Basically the RFRA was struck down because Congress can’t tell the court how to interpret the Constitution,” Finkelman said. “These are not easy cases. As a neutral observer, you can see truly legitimate arguments on either side.”

Complications in the marketplace

“On the other hand, a number of churches argued that the RFRA exempts them from all laws,” he said. “If a church wants to construct a steeple so high it violates city building codes, it’s kind of arrogant to say they should be able to just because they’re a church.”

Finkelman said he was skeptical toward bills like the original SB 2681, because they allow business owners to impose their private religion on others in the public marketplace. For instance, a florist could deny providing service for a homosexual marriage.

“These aren’t practices carried out in the privacy of their own home,” Finkelman said. “These laws allow people to violate the law if they don’t like it in normal day-to-day commerce.”

But Justin Butterfield, senior counsel to the Texas-based Liberty Institute, said religious liberty wouldn’t need protecting if it was always private. The Liberty Institute represented Holly Springs’s Opulent Life Church in 2012 when the church attempted to move into an abandoned property on the town square.

“That’s the whole point, when personal beliefs come in contact with the public sphere,” Butterfield said. “If you’re protected until the minute you step outside, isn’t that protection kind of hollow?”

He added that the language of SB 2681 has been misunderstood and overblown.

“Nothing in this bill addresses homosexual conduct,” he said. “It’s just getting Mississippi’s Religious Freedom Restoration Act up to par.”

The purpose of the bill is to allow leeway for companies like Hobby Lobby, who object to covering the morning- and week-after emergency contraceptive pills under their employee health care plan. The company holds deeply religious views, and considers pills like Plan B equivalent to abortion.

However, Finkelman said providing these services as an option is not sufficient grounds to implicate businesses in behavior they disapprove of.

“In reality, no one is being forced to hand out birth control, just provide a normal health care policy,” he said.

But Butterfield disagreed.

“Having to actually pay for something as part of the plan does make that business complicit,” he said. “It’s important for people to know what’s protected under the Constitution. Unless the government can show it has a significant interest, it can’t stop religious exercise.”

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