American religious-liberty watchers are likely familiar with the case of Barronelle Stutzman. A grandmother from Washington State, Stutzman has worked as a florist for most of her professional life. For more than nine years, she willingly served Robert Ingersoll and his same-sex partner. She created numerous floral arrangements to help them celebrate anniversaries, birthdays, and other special events.
In 2012, an employee told Stutzman that Ingersoll was going to ask her to provide flowers for his wedding ceremony. She talked it over with her husband and concluded: “My faith teaches me that marriage is between one man and one woman. Marriage is a sacred covenant between a man and a woman, as Christ is to the church. To create and design something from my heart that helps celebrate their marriage would be dishonoring to God, and my convictions.”
When Ingersoll came to Stutzman’s store with his request, she gently told him no, gave him a hug, and referred him to a florist who had no such objections. Washington State’s attorney general and the American Civil Liberties Union responded with ruinous lawsuits that may drive her out of business. Attorneys from the Alliance Defending Freedom representing Stutzman contend that religious-freedom guarantees in both the state and federal constitutions protect her decision. Do they?
Historian Jack N. Rakove considers such questions in Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion. The book, an account of religious liberty in America that Rakove calls “intentionally provocative,” is serviceable as a work of history. But as a polemic it represents yet another assault on the ability of some citizens to act on their religious convictions.
The Boundaries of Toleration
Historically, religious toleration has been the exception rather than the rule. But early modern thinkers such as John Milton and John Locke argued in favor of tolerating dissenters, and in 1689 England’s Parliament passed the Toleration Act, which offered limited protections to non-Anglican Protestants. Rakove states that the act “did not legally bind Americans,” but he suggests that it did “influence their behavior.” However, Rhode Island, Maryland, and Pennsylvania were already doing a superior job protecting religious liberty, and many American colonies soon joined them in surpassing their mother country. (I do not mean to imply that religious liberty was always and everywhere advancing in British North America. For instance, in 1692, following the Glorious Revolution, Maryland repealed its groundbreaking 1649 toleration act.)
In the Anglo-American world, the boundaries of religious toleration were regularly tested by members of the Society of Friends—better known as Quakers. Among other peculiarities, Friends decline to swear oaths, a practice Rakove attributes to the Fourth Commandment. I suspect he means either the Second or Third Commandment’s admonition not to “take the name of the Lord your God in vain” (Ex. 20:7, ESV). (Different traditions number the commandments differently.) But even citing Exodus is incorrect—Quakers refuse to swear oaths because they take literally biblical passages such as Matthew 5:34–37, where Jesus says, “Do not swear an oath at all. … All you need to say is simply ‘Yes’ or ‘No’; anything beyond this comes from the evil one” (NIV). Furthermore, Quakers are pacifists and so refuse to serve in the military. They were routinely jailed because they acted on these convictions.
In 1696, Parliament passed a law permitting Quakers in England to affirm rather than swear some oaths. However, they were not allowed to be witnesses in criminal cases or hold civic offices—disabilities that remained until 1826 and 1832, respectively. Yet as early as 1647, Rhode Island permitted them to affirm rather than swear. Many American colonies followed this example and, in addition, exempted them from militia duty. The United States Constitution bans religious tests for office and permits anyone to affirm rather than swear oaths, which enabled Quakers to serve in the national government 44 years before they could do so in England. Rakove almost completely ignores these important advances for religious liberty in America.
The View Beyond Monticello and Montpelier
Religious “toleration” suggests that majorities will put up with religious minorities. Rakove is correct that by the late 18th century, many Americans rejected toleration in favor of the more robust idea that all citizens have a natural right to religious liberty. This freedom includes the ability to believe whatever one desires and, significantly, the ability to act upon one’s religious convictions—albeit within reasonable boundaries.
Like far too many scholars, Rakove exaggerates the influence of Thomas Jefferson and James Madison. Indeed, his introduction is titled “The View from Monticello and Montpelier,” his chapter on the founding era is called “The Revolutionary Legacy: Jefferson’s and Madison’s Great Project,” and his final section is “Madison’s Razor.” He occasionally concedes that Jefferson and Madison are not “the sole or supreme representatives of the best American thinking on religious liberty,” but these qualifications are too few and far between.
Overemphasizing Jefferson and Madison makes little difference with respect to religious liberty, because by the late 18th century, most civic leaders agreed that this right must be vigorously protected. But it is misleading with respect to American church-state relations because, as I have argued elsewhere, Jefferson and Madison desired a greater degree of separation between these institutions than almost any other founders.
Only in the context of an excessive focus on Jefferson and Madison can the following claim, from Rakove, seem viable:
An enlightened skepticism that had little interest in doctrinal orthodoxy was present in late eighteenth-century America. The intellectual advantage seemed to be shifting to the secular and the skeptical rather than the devout and the orthodox. Many of the nation’s Founders shared the Deist sentiments that this attitude supported.
This is a reasonable description of Jefferson’s views, and it fits a few other founders (like Benjamin Franklin, Thomas Paine, and Ethan Allen) as well. But as I demonstrate in Did America Have a Christian Founding?, it is wildly inaccurate to suggest that deist sentiments were the norm among America’s founders.
The concluding chapters of Beyond Belief, Beyond Conscience show that ratifying the First Amendment did not immediately result in religious liberty for all. Minorities such as Roman Catholics, Mormons, and Jehovah’s Witnesses often faced discrimination because of their religious convictions. Only in the mid-20th century did the United States Supreme Court begin taking significant steps to protect religious freedom.
Today, no one would argue that a legislature can pass a law deliberately targeting a religious practice purely as a gesture of religious disapproval. Debates begin when a neutral law applying to all citizens has the incidental effect of keeping some citizens from acting on their religious convictions. To address such problems, legislatures often create religious exemptions or accommodations to protect citizens of faith. Rakove briefly acknowledges that America’s founders were aware of religious exemptions, but he thinks that nothing they contemplated “verges anywhere near our modern disputes over exemptions and accommodations.”
Rakove is very concerned about religious traditionalists who object to funding abortions and participating in same-sex wedding ceremonies. He suggests that a historian “has no ready answers” to such disputes but then follows progressive law professors in contending that exemptions are impermissible in these areas. Among the objections he raises is that such exemptions create “third party effects.”
However, concerns about third-party harms are nothing new. From the early colonies to the present day, religious pacifists have been granted exemptions from military service. Surely, increasing non-pacifists’ chances of being drafted constitutes a harm to non-pacifists who do not want to serve in the military. An unwilling draftee might well view this burden as substantially greater than the burden faced by a same-sex couple unable to obtain custom flowers from a particular florist.
Or consider the harms caused by speech protected by the First Amendment. The Supreme Court has ruled in favor of a constitutional right to burn the American flag as a form of political protest. It has ruled, as well, to protect demonstrations by members of the Westboro Baptist Church at military funerals. In both cases, the court has permitted these forms of free expression even though they are virtually certain to cause pain and give offense.
Of course, religious liberty is not a trump card that must win in every dispute. Legislatures may reasonably ban practices when they have a compelling reason to do so. For instance, states can and do prohibit female genital mutilation, and they appropriately require Christian Scientists to provide medical care for their children.
As mentioned earlier, Rakove cautions that his book is “intentionally provocative,” and indeed, the last dozen pages contain a great deal of provocation. For instance, in language better suited for Twitter than a careful work of history, he calls President Trump “as woeful a sinner and morally wretched an individual as has ever occupied the White House.” This is quite a claim, especially as the White House has been occupied by numerous slave owners and womanizers—and even a slave owner who killed another man in a duel (Andrew Jackson).
Beyond Belief, Beyond Conscience provides a serviceable treatment of religious liberty in America. Alas, Rakove’s approach to religious traditionalists today shows that he fails to grasp the fundamental importance of protecting religious freedom for all citizens. If we hope to live up to the founders’ vision, we should work to ensure that all Americans can act upon their religious convictions whenever possible.
Mark David Hall is the Herbert Hoover Distinguished Professor of Politics at George Fox University. He is the author of Did America Have a Christian Founding?: Separating Modern Myth from Historical Truth (Thomas Nelson).