James Madison and religious freedom

A new book on James Madison makes the bold claim that it was Madison, not Thomas Jefferson, who was the greatest proponent of religious liberty. Kevin Gutzman’s new book “James Madison and the Making of America” points out that it was Madison who pushed through the Virginia Statue for Religious Freedom, which was the ground-breaking foundation for the First Amendment. (Jefferson was a key player in the process, but it was Madison who actually got the statute enacted).

If we look at history from a Mormon perspective, it seems clear that Madison is the person who most helped create an environment that went beyond simple religious “tolerance” to true religious liberty. Madison was uniquely and acutely aware of the sufferings of minority religious groups, even in the colonies, and he fought incessantly against the establishment of a majority religion. I think we can make a strong argument that the religious environment for Joseph Smith would have been very different, and much less welcoming, if it weren’t for Madison.

From a relatively young age, Madison began to see religious freedom very differently than many of the Founders. Unlike many aristocratic young men from Virginia, he avoided the Church of England-influenced Virginia colleges and went to school in Princeton. There, he was exposed to the much more enlightened (and anti-establishment) Presbyterian views of the Rev. John Witherspoon.

For 21st century Americans, it is difficult to believe the conflicts that regularly took place in colonial America between Congregationalists, Anglicans, Presbyterians and Baptists, not to mention of course the much-hated Catholics. But suffice to say that a large percentage of the population spent a large amount of time despising you if you were not the “right” kind of Christian.

Madison found this situation intolerable. His early letters show a fascination with the subject. He wrote to fellow Princeton classmates inquiring about the status of religious tolerance in different colonies. He was absolutely appalled that six men in Virginia had been thrown in jail for promoting rather orthodox (but unpopular) religious views. Given this situation, it is much easier to understand how Joseph Smith was arrested multiple times for his religious “transgressions.” But, as I will show, I think it is safe to say Madison would have been a big proponent of the prophet’s right to evangelize as he wanted.

Madison played the crucial role in declaring religious liberty one of the key pillars of the Virginia Declaration of Rights. This declaration made in 1776 served as the foundation of the Virginia Constitution. And many of the principles of the Virginia Constitution were enshrined in the U.S. Constitution, especially the Bill of Rights. This Declaration of Rights was ground-breaking and was the first time in world history that a large government body declared true religious liberty.

The position of many state-supported religions of the day was one of “toleration,” meaning that there would be one dominant religion and that others would be “tolerated.” In effect, they were not tolerated very much at all, and Catholics and Baptists in Virginia suffered under one form of persecution or another. But “toleration” was considered very enlightened compared to burning at the stake, confiscation of property and other measures carried out by the various state religions in Europe at the time.

Madison’s position is much more in line with what we would accept today, but remember this was completely ground-breaking at the time:

“Religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore, that all men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience.”

It is Madison’s sentiments that are echoed very well in D&C 134 and were embraced by Joseph Smith and the early Saints. And it is Madison’s sentiments that continue to be promoted today by people like Elder Oaks and other Church leaders.

But Madison went even farther. He was firmly against any establishment of Christianity as the state religion of America. He saw the separation of government and religion as key. He pointed out that Christianity has flourished in the 1st and 2nd centuries AD without government support, and he said that the establishment of Christianity as the state religion by Roman emperors had generally had more a corrupting than a supporting effect. He warned that establishing Christianity as the state religion of the United States was no different than establishing one sect of Christianity over another.

A close study of Madison’s views should make it clear that the First Amendment’s establishment clause is truly meant to create a United States free of state involvement in religion. Whether this means states should outlaw prayer in schools is perhaps a separate issue, but I do think we can ascertain that Madison would have opposed the view that the United States is a “Christian nation.”

There is another important point for Mormons: in an e-mail exchange with the author, Prof. Gutzman pointed out to me that Madison would have opposed the late 19th century attempts by the federal government to stamp out polygamy in Utah. Prof. Gutzman makes it clear that Madison would have been one of those rare individuals who truly understands the reality of freedom of conscience. It is comforting to know that Madison had such a crucial role in so many important early founding documents.

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About Geoff B.

Geoff B has had three main careers. Some of them have overlapped. After attending Stanford University (class of 1985), he worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. In 1995, he took up his favorite and third career as father. Soon thereafter, Heavenly Father hit him over the head with a two-by-four (wielded by the Holy Ghost) and he woke up from a long sleep. Since then, he's been learning a lot about the Gospel. He still has a lot to learn. Geoff's held several Church callings: young men's president, high priest group leader, member of the bishopric, stake director of public affairs, media specialist for church public affairs, high councilman. He tries his best in his callings but usually falls short. Geoff has five children and lives in Colorado.

36 thoughts on “James Madison and religious freedom

  1. It’s also a shame that Madison wasn’t around during Scalia’s attack on freedom of religion in the 1990 Supreme Court case Employment Division v. Smith. Or during the Values Voter Summit a few months ago, a major GOP gathering that hosted the majority of the GOP presidential candidates, where one of the invited speakers, Bryan Fischer, stated that First Amendment rights were meant for Christians only (and he probably meant to exclude Mormons with that statement).

    Freedom of religion is one thing the U.S. does better than any other country. It’s a shame we don’t always live up to the vision of Madison and Jefferson.

    By the way, I like that he mentioned polygamy–I think it’s important to realize that attempts by the federal government to stamp it out in Utah were also an infringement of religious liberty (and, for that matter, still are today). I think most Mormons have such an adverse reaction to polygamy that we often overlook that fact.

  2. There is plenty of religious discrimination taking place on the part of the left, Tim. Obama is trying to force us all to pay for other peoples’ abortions and contraception (screw you Catholics!), and he supported applying federal discrimination laws to religious institutions and was slapped down by the Supremes 9-0. Funny how some people only see religious discrimination by people they consider on the “other side.”

    Right-wingers get attacked (rightly) for their misinterpretation of the Constitution’s establishment clause all the time. Personally, I think the whole values voter position is wrong-headed. Madison was way ahead of his time on this issue, and as Mormons we should be very thankful he was around to allow the conditions for the Restoration of the church.

  3. Details such as level of scrutiny aside, it seems more than a little questionable to consider the Court’s ruling in Employment Division v. Smith an “attack” on religious liberty.

    Since when has religious liberty been a carte blanche to ignore any law of general applicability? That would be anarchy, in fact it could as easily impair religious liberty as much as promote it. Does religious liberty entail the right to open a house of ill repute across the street from a church or a school, for example?

  4. Geoff B.,

    You’re right of course. It’s not just the right. The difference is that Obama has not so far succeeded (although we’ll see how the contraception thing works out).

    As far as Employment Division v. Smith goes, here’s what Elder Oaks had to say about it (or at least a small part of what he had to say about it):

    “And in Employment Division v. Smith, the United States Supreme Court dragged religion out of the sanctuary, and said you’re in effect, you don’t have any more free speech rights than people generally. You don’t have the right to override state laws any more than any other person does. And it just deemphasized religion very significantly.”

    http://www.hughhewitt.com/transcripts.aspx?id=95602667-634d-41f0-a6c4-cfcfa88b4726

    Oaks has a lot more to say on the subject, if you’re willing to dig for it. Basically, though, the Supreme Court decision reinforces the idea that you’re free to believe whatever you want–just not practice it. And that is very much an attack on religious liberty.

    By the way, another interesting quote from Elder Oaks, as a representative of the church, standing in front of Congress:

    “We would prefer that the Supreme Court reverse the Smith case and restore the full constitutional dimensions of the First Amendment protection of freedom of religion.”

    http://www.lds.org/ensign/1992/07/news-of-the-church?lang=eng

  5. Assume for a second that Reynolds v. United States is going to be reexamined this term. With the varoious cases defining strict scrutiny as well as Loving, Romer and Lawrence serving as precedent, an argument much like the opponents of Prop 8 could be used to defend polygamy.

    Loving made marriage a right. Strict Scrutiny would require that the state have a compelling interest (provable in court) to ban polygamy. In Lawrence, the Court did not accept Scalia’s argument that a long standing common moral belief cuts the mustard for such proof.

    Or, would we logically consistent with the current argument for Prop 8 before the 9th Circuit and state that only a rational basis (no proof needed) is required to ban polygamy.

  6. Tim, you have convinced me to look into this particular case (the Smith case) more, and I will in the next few days. Thanks, I always enjoy learning something new.

  7. “Basically, though, the Supreme Court decision reinforces the idea that you’re free to believe whatever you want–just not practice it.”

    Of course, there have always been limits on practicing religious doctrine. As important as freedom of religion is, do we as a society tolerate *anything* that falls under the umbrella of “Well, this is my religion”? No, of course not. We wouldn’t tolerate human sacrifice or people making cats and dogs live together. So, naturally, there are limits. Always have been.

  8. Geoff B.–Cool. It’s an interesting case, and it’s fascinating to see how the church reacted to it.

    As far as limits on practicing religious doctrine, of course society won’t tolerate “anything.” But it should be able to tolerate sacred rites practiced by adults that don’t harm anyone. Or, if society itself can’t tolerate that, then at least the language provided in the U.S. Constitution should be able to protect such practices, regardless of what society thinks.

  9. Geoff B, in comment 3, I think you meant “Screw you, Catholic Bishops”, since the majority of Catholics seem quite unconcerned about contraception being paid for by the Church, and those who are concerned are mostly hypocritical since there are very few who don’t use it. Of course, the increasingly irrelevant Bishops, who have much graver sins on their heads that they ought to worry about (even though Cardinal Egan just said that he was wrong to have apologized on that account!), can bleat all they want about conscience, but their position here has very little to do with conscience and all to do with controlling other people.

    Employee health premiums are a benefit, part of a compensation package, just as a salary is. If the church is really worried that its money is going to contraception, maybe it should stop hiring or paying anyone who could conceivably use any of their compensation to purchase contraception. But of course they don’t have the capability to do this, not knowing in advance what the outcome might be. The bishops’ dishonesty was revealed when Obama engineered a compromise whereby the church would not have to pay premiums directly, but they were not satisfied, their real goal being the imposition of their own morality on employees who are not even members of the Catholic Church and whose own consciences owe no fealty to the bishops. It is the Catholic Church’s interference in the government to impose it’s own morality on non-Catholics that Madison would have abhorred.

  10. Bill, having spent most of my life around Catholics, I can tell you that the culture is quite different than the LDS church in the sense that most Catholics ignore the advice of their priests (on issues from contraception to the death penalty) but still respect them. Empirical data shows that most people oppose the Obama policy:

    http://politicalticker.blogs.cnn.com/2012/02/16/cnn-poll-half-oppose-obama-birth-control-insurance-plan/

    The key issue is not necessarily a religious one in the sense that the majority of Catholics are up in arms about this specific policy. The issue is overall concern about the administration’s mandates and lack of respect for religious liberty. Forcing health providers to pay for birth control still means other people are paying for somebody else’s birth control because if health insurers must provide birth control for “free” they will either raise premiums or they will cut something else. Every time you mandate something (like coverage of children who live at home until they are 26or “free” birth control) it has costs that must borne by somebody, and that somebody is everybody else who has health insurance.

    There is an easier solution for the Obama administration: let people pay for their own birth control out of their own pockets.

    Another unintended consequence of this ridiculous policy: young women will be the people hurt the most. If companies must pay more for providing “free” contraception (because their health care premiums will go up), then companies will do one of two things: they will offer lower pay to young women or they will not hire them in the first place. As usual, a government policy intended to “help” people will end up hurting them.

  11. “it has costs that must borne by somebody, and that somebody is everybody else who has health insurance.”

    Aside from the religious liberty issue, you really called attention to a critical point here. This is something that Democratic politicians don’t seem to comprehend (and quite a few Repubs too): who’s gonna pay for it?

    Seriously: WHO’S GONNA PAY FOR IT?

    This issue of cost is a real, practical, urgent issue. Liberals for years do things like mandating minimum wage, mandating more expensive cars, mandating light bulbs, mandating this, mandating that…the end result of all these mandates is that the producers pass the increase in cost on to the consumers. Liberals and Democrats voice their extreme concern and care and love for everyday “working people”…but the working people are the ones that end up footing the bill. Every single time!

  12. I think mandates on birth control would decrease overall insurance costs. Mandates on birth control make it more likely that women with insurance will take birth control (because it’s free), and makes it less likely they’ll have expensive and unwanted pregnancies.

    Birth control is cheap. The alternative is not. Employers don’t only worry about the cost of paying for birth control–they worry about the cost of hospital bills, plus the huge cost of maternity leave. I really don’t think they’d hire fewer young women they they currently do, or pay them lower wages, because they’re worried about the low cost of birth control. After all, it’s far cheaper than the alternative.

  13. Tim, insurance companies have literal armies of actuaries to study such things. If they thought it would be cheaper, they would offer it for free today, just like they offer free checkups and free health club memberships as part of some health plans. The reason they don’t offer free birth control is for three reasons 1)it offends the religious sensibilities of some people and 2)it does not decrease insurance costs and 3)when something becomes “free” we get more of it and costs go up, not down. When birth control becomes free, women who may not take it now for cost reasons (about $900/year) will start taking the pill because it is “free.” This drives up the cost because the pill does cost more to produce than condoms or diaphrams, to use two examples. So, it is just basic common sense that costs will go up if you make something “free.” Take it to the bank: if you offer free birth control, insurance costs will go up, not down. And young women employees will suffer the consequences.

  14. Geoff, you should have read the link you posted – it doesn’t really support your argument:

    “Surveys on this topic tell a mixed story because many Americans know little about the issue. Recent CBS and Fox polls indicate support for the new policy, using questions that describe the new policy in some detail. But in the CNN poll, when asked their opinion of the Obama policy with no details spelled out, support was much less and a large partisan divide emerged.”

  15. Birth control costs $900/year? I guess it might, if it’s the newer, more expensive stuff. But its pretty easy to get it for $180/year, or even less. And without the drawbacks of a diaphram or condom.

    As far as risks go, some birth controls are more dangerous than others. Some of the more expensive ones are actually more dangerous. Risks could include, for example, a risk of blood clots. Of course, being pregnant also introduces risks (including risk of blood clots). I realize there can be undesirable side effects too.

    I imagine that insurance companies charge an employer more to cover employees with larger families. I know they often charge more to cover an individual and a child than just an individual. So insurance companies could see a birth as a kind of investment. High costs now, but a chance of increased revenue for the next 18 years. Insurance companies aren’t out to make things cheaper–they’re out to make themselves money, like any other company.

  16. I took the $900 number from an outraged Huff Post, which says it is not fair for people to have to pay this outrageous amount for birth control. Planned Parenthood says the number is between $180/year and $600 (plus exams).

    If the number if $180/year, even less reason for employers to provide it for free.

    http://www.plannedparenthood.org/health-topics/birth-control/birth-control-pill-4228.htm

    You are correct, sir, that health insurance companies will behave like any other business, as I say with armies of actuaries looking at various costs. They have determined that providing free birth control is not worth the long-term cost. This also means that giving people free birth control will increase costs.

  17. Bill, I will concede the point (which was really not central to my argument anyway) that there are a lot of Catholics, and maybe (depending on how you ask the questions in a poll) even a majority that don’t care about Obama’s contraception policy, if you will concede the point that we shouldn’t mandate that some people pay for other peoples’ birth control. Deal?

  18. Don’t see how you can run a government that way. Many people are morally opposed to war, capital punishment, bank bailouts, yet their taxes support these things anyway. In our system, some people are always paying for things that benefit other people. Why should birth control be the only exception?

  19. “Why should birth control be the only exception?”

    We already let people opt out of war. The Amish, for example. Also, an entire city in Texas (Galveston) is completely opted out of the Social (in)Security System. My point is that if you really, truly, deeply care about something, you will find a way to opt out. Most of these battles have been fought at the Supreme Court decades ago.

    “Don’t see how you can run a government that way.”

    Just because our current system of government robs Peter to pay (read: bribe) Paul, doesn’t necessarily mean that this is the only way to do business.

  20. Bill, the Amish and other religious groups are exempted from Obamacare. So, that battle has already been fought, and religious freedom has won. It doesn’t really matter how many Catholics support the birth control mandate policy, their leadership uniformly opposes it and in the end the bishops speak for the church. The religious exemption exception is a clear part of national policy and has been since the founding. It is Obama who wants to overturn more than 200 years of precedents.

    I think you are beginning to grasp why people like me want the federal government to be much, much smaller. It would help us avoid problems like this.

  21. Only self-employed Amish are exempt from social security and medicare taxes. Galveston opted out in 1980, but thanks to a 1983 law, that option is no longer available. Conscientious objectors of all religions can avoid participating in war, but cannot avoid funding it: Amish, along with everyone else pay federal income tax.

    The Catholic Church could very easily avoid the strings attached that come with public money if they refused that funding and payed for everything themselves. But as I noted in comment 10, the bishops don’t really want just to be left alone. They want the government to sanction their ability to not leave anyone else alone.

  22. Notice that I didn’t mention the mandate, but only said that non-self-employed Amish pay medicare taxes. In any case, you link makes clear that the mandate doesn’t go into effect until 2014 and that the exemptions have not yet been decided. The Amish, however, are not running hospitals with federal funds and so are a distraction from the main points of the debate about birth control. Somehow there is this bizarre new Santorum-style understanding that separation of church and state means that while the state cannot tell the church what to do, the church can make the state do whatever it wants.

  23. Bill, to return to the point of this post, Madison clearly would be against all federal mandates of this kind. He would find the idea of Obamacare laughable and very dangerous. You really ought to read the book, it might give you a better understanding of the appropriate limits of federal power.

  24. Not to return to a tiresome subject, but I am opposed to health insurance being required to provide anything more than they already do for free. Why? I live in a state where maternity costs are either NOT COVERED by insurance or the maternity deductible is around $5000. My last child only cost $6500. I pay more for health insurance premiums every month than I do for my mortgage. I have a very high deductible, meaning that my insurance, even at such a high cost, does me very little good other than if I had a major crisis. Insurance is no longer affordable for anyone who has to purchase it themselves. I work for a small company that cannot offer health benefits. I am tired of paying so much money for health coverage and then being told that we need to force insurance companies to cover more people and offer more free benefits. I assure you, nothing is free. I do, however, agree that there is an awful lot of argument over something so small. We pay for a lot of things in this country that we shouldn’t. The government needs to stop mandating, taxing, and burdening the hardworking people of this country. There must be a better way to run a country.

  25. Insurance jacks up medical prices. I know of one major medical company that won’t make equipment for less than 60% profit margin. That’s sick.

    I think we should scrap insurance and do tax-free (mandatory, if necessary) health savings accounts. Like the cafeteria plans, but that roll over from year to year.

  26. SilverRain,
    I don’t know if you’re right or not. But I do know that when we were out of work, we were able to pay cash for some pricey ultrasound diagnostics for less than our co-pay when we were insured. The healthcare market is pretty dysfunctional.

  27. “Somehow there is this bizarre new Santorum-style understanding that separation of church and state means that while the state cannot tell the church what to do, the church can make the state do whatever it wants.”

    This is pure bunk. There are very few people actually advocating that the “church” can make the state “do whatever it wants”. This is just smokescreen from those of the Left that are vehemently opposed to religious influence in our society.

  28. “The healthcare market is pretty dysfunctional.”

    That’s because it’s not a market. It’s a medieval guild racket.

  29. SR, Adam, Michael, good comments. The comparison between our health care system a the Medieval guild racket is spot-on. It’s hilarious when somebody will claim we have a “free market” health care system. We did, but then we decided to ruin it with government involvement, and look what we have now — expensive, cumbersome, filled with bureaucrats with barriers to entry, just like a Medieval guild.

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