Religious Liberty Begins with First Principles

Commentary on the Presidential Commission on Religious Liberty Draft Report

The Presidential Commission on Religious Liberty has released for public comment one of the most significant governmental studies of religious liberty in a generation. At a time when public debate often reduces religious freedom to a political slogan or a cultural grievance, the Commission’s draft report returns the discussion to something far more enduring, first principles. That alone deserves commendation.

For too many years, the constitutional meaning of the Religion Clauses drifted from the Constitution’s text and the historical understanding of those who penned it. Judicial doctrines untethered from history too often portrayed religion as something government should carefully avoid rather than a fundamental unalienable liberty government exists to protect.

Fortunately, recent decisions of the United States Supreme Court have begun correcting that course. Cases such as Kennedy v. Bremerton School District, Carson v. Makin, Groff v. DeJoy, and Mahmoud v. Taylor are not isolated victories for religious believers. Together, they represent a coherent restoration of constitutional interpretation rooted in the Constitution’s original public meaning and our Nation’s history and traditions. The Commission wisely recognizes this emerging jurisprudence. Its final report should make that point even more clearly.

Religious liberty occupies a unique place in our constitutional order because it protects the freedom of conscience itself. Long before government recognizes any right, every person bears the responsibility to seek truth and to live according to conscience before God. Civil government may protect that freedom. It may not create it. That understanding did not begin with the First Amendment. It reaches back to the Declaration of Independence, which proclaims that our rights are endowed by our Creator rather than bestowed by government. James Madison similarly argued in his Memorial and Remonstrance Against Religious Assessments that the duty each person owes to the Creator precedes the claims of civil society. William Blackstone likewise recognized that human law derives its legitimacy from the higher law of nature and of God. The Religion Clauses therefore do not grant Americans permission to worship. They acknowledge a preexisting liberty that government is bound to respect.

The Founders also understood an important distinction that modern constitutional debates sometimes overlook. Government may acknowledge religion without establishing religion. It may recognize the role faith has played in the American experiment without coercing belief or compelling participation. What the Constitution forbids is governmental control over conscience, not every public expression of faith.

The Commission’s report would also benefit from placing greater emphasis on one of the defining religious liberty questions of our time, the rights of parents. From Meyer v. Nebraska and Pierce v. Society of Sisters to Wisconsin v. Yoder and Mahmoud v. Taylor, the Supreme Court consistently recognized that the family is not a creation of the State. Parents bear the primary responsibility for directing the education and religious formation of their children. As conflicts over education continue to grow, preserving parental authority remains essential to preserving religious liberty itself.

Religious liberty also protects far more than houses of worship. Churches, synagogues, religious schools, charities, and faith-based ministries are indispensable institutions of civil society. Standing between the individual and the State, they cultivate virtue, strengthen communities, and remind government that its authority is limited. A free society depends upon these institutions thriving without governmental interference. America’s first freedom is not only the freedom to worship privately. It is the freedom to live faithfully according to conscience in every sphere of life. That principle gave rise to the Founding, shaped the Constitution, and continues to define the best of the American experiment.

The Commission has produced an impressive draft worthy of careful consideration. By grounding its final report even more firmly in the Constitution’s original meaning, the natural rights philosophy of the Founding, and the Supreme Court’s renewed commitment to history and tradition, it can produce a lasting resource—one that serves not merely the present moment, but future generations seeking to preserve the first freedom secured by our constitutional order.