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First Published:  27 May 2020
Revised (substantive):  2 July 2020

S O M E     M I S S I N G     H I S T O R I C A L     C O N T E X T

for 21st-century
LIBERATE AMERICA
demands that
state & local governments
reopen churches

W I T H     R E F E R R I N G     T E X T

Opening quotation mark Nor is the Trump administration’s demand that state & local governments reopen churches grounded in any constitutional law which guarantees religious freedom. Closing quotation mark

This is claimed by the demagogic LIBERATE AMERICA movement which has been organizing successfully online as of April–May 2020, as well as by President Trump’s Justice Department headed up by Attorney General William Barr, and by President Trump himself.

Those, like the president, who oppose continuing lockdowns have rallied around what they see as an absolute constitutional right to worship wherever, whenever, and however they please:

... I’m saying that religious freedom is a civil rights guarantee and that POTUS has a constitutional obligation to defend them.

(comment posted by “Prospector” to the PBS NewsHour segment, “Shields and Brooks on Trump’s Call to Reopen, Mail-in Voting”; first aired 5/22/2020)

Conversely, those who support government-mandated quarantines, including closing the churches (plus mosques, synagogues, etc.), in order to protect the public health have charged the Trump administration with “subverting the Constitution” in order to promote “religious nationalism”:

As always Barr is being dishonest with his intent. He’s not looking for violations of civil rights, he’s looking for phony justifications to push the envelope of authoritarian power labeled the “Unitary Executive.”

     “A former White House Ethics Chief under President George W. Bush described Attorney General William Barr as the ‘most dangerous’ in United States history, citing what he described as religious zealotry.
     “Richard W. Painter shared a New York Times opinion article Tuesday saying that Barr is on a theocratic mission and is using Justice Department power to promote ‘religious nationalism.’ Painter argued that Barr is subverting the Constitution and appealing to conservative evangelicals for support. The former Bush administration attorney also touted a congressional candidate in Indiana who was the lone Notre Dame University Law School faculty member to publicly criticize what he called Barr’s ‘dominionist rant’ there in an October speech.
     “‘Dominionist Attorney General Bill Barr in October attacked “militant secularists” in an official speech before adoring crowds at@NDlaw. In 2020 he plans to put his plans into action. Barr is the most dangerous Attorney General in U.S. history,’ Painter declared on Twitter Tuesday.
     “In October, Barr gave a speech at Notre Dame Law School promoting ‘religious liberty’ and warning about secular damnation – issues similar to those touted by Vice President Mike Pence. Painter remarked that ‘no decent Christian — or any other American committed to our founding principles — could accept the theocratic extremism of Attorney General William Barr.’ He shared a Times op-ed Tuesday entitled, ‘Bill Barr Thinks America Is Going to Hell,’ to illustrate his wider criticism of what he saw as Barr’s attempt to hijack the DOJ and turn it into a weapon of religious fanaticism.
     “‘Mr. Barr has embraced wholesale the “religious liberty” rhetoric of today’s Christian nationalist movement. When religious nationalists invoke “religious freedom,” it is typically code for religious privilege,’ wrote religious extremism authors Katherine Stewart and Caroline Fredrickson in the op-ed.”

< https://www.newsweek.com/bill-barr-most-dangerous-attorney-general-us-history-richard-w-painter-religious-extremism-1479858 >

(comment posted by “John B, Des Moines” to “Barr Tells Prosecutors to Look for Unconstitutional Virus Rules” by Michael Balsamo of the Associated Press; AP story posted to the PBS NewsHour website, 4/27/2020)

I agree with those who dispute “the ‘religious liberty’ rhetoric of today’s Christian nationalist movement.”

It is my contention that the right to freedom of religion specified in the First Amendment is not — and never was — the absolute right of 21st-century popular imagining.

Historical context matters, and needs to be reintroduced into the debate.

E.g., First Amendment language concerning “the free exercise” of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(the First Amendment to the Constitution of the United States, entitled “Of religious establishments, freedom of the press, &c.”; as printed in 1809)

is specific to what was known during the early-modern period as “Liberty of Conscience.”

Of note, “religious liberty” in Anglo-America had Dutch origins:

The settlers of New Netherland [the Mid-Atlantic region of the future United States, which stretched from the Delaware River Valley to the Hudson River Valley and Long Island, claiming all the land between Maryland and Connecticut] were obligated to uphold religious toleration as a legal right by the Dutch Republic’s founding document, the 1579 Union of Utrecht, which stated that “everyone shall remain free in religion and that no one may be persecuted or investigated because of religion.” For early American historians this statement, unique in the world at its time, lies at the root of American pluralism.

(Evan Haefeli, New Netherland and the Dutch Origins of American Religious Liberty, cover)

As adopted in 1791, the First Amendment text concerning religious establishments prohibits the United States Congress from (1) establishing a state religion (thus ensuring separation of church & state at the federal level), and (2) coercing individuals to align themselves with a national church (akin to the Church of England) — historically enjoined by way of “oathes of alleidgeance and supremacy” known as Test Acts — by mandating that worshippers be allowed to follow the dictates of private conscience instead (thus ensuring freedom of worship).

The First Amendment extended the protections (against the Test Acts, which were not repealed until 1829 in England, where university religious tests were not abolished until the 1870s and 1880s) of Article VI of the Constitution of the United States (1789):

The Senators and Representatives before mentioned, and the members of the several state Legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

(Article VI of the Constitution of the United States; as printed in 1809)

But Amendment I’s 18th-century notion of “the free exercise” of religion did not extend beyond

... the sake of a good Conscience, and that they might exercise their Minds and Liberties in peaceable Well-doing ...

(Thomas Tryon, The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ..., 1684, 45–46)

to include the places in which select worshippers choose to congregate.

In other words, while the First Amendment protects “Liberty of Conscience,” it does not protect liberty of congregation.

There is no constitutional or civil right for individuals to gather for public worship, in a public space, in violation of public-health orders issued by sovereign state and local governments.

Indeed, state legislatures (such as Anglo-America’s first representative institution, the Virginia House of Burgesses) passed laws prohibiting religious assemblies, in the interests of public safety, as early as 1659:

An Act for the suppressing the Quakers.

WHEREAS there is an unreasonable and turbulent sort of people, comonly called Quakers, who contrary to the law do dayly gather together unto them unlaw’ll Assemblies and congregations of people teaching and publishing, lies, miracles, false visions, prophecies and doctrines, which have influence upon the comunities of men both ecclesiasticall and civil endeavouring and attemping thereby to destroy religion, lawes, comunities and all bonds of civil societie, leaveing it arbitrarie to everie vaine and vitious person whether men shall be safe, lawes established, offenders punished, and Governours rule, hereby disturbing the publique peace and just interest, to prevent And restraine which mischiefe, It is enacted, That no master or comander of any shipp or other vessell do bring into this collonie any person or persons called Quakers, under the penalty of one hundred pounds sterling to be leavied upon him and his estate by order from the Governour and Council or the comissioners in the severall counties where such shipps shall arrive, That all such Quakers as have beene questioned or shall hereafter arrive shall be apprehended wheresoever they shall be found and they be imprisoned without baile or mainprize till they do abjure this country or putt in security with all speed to depart the collonie and not to returne again: And if any should dare to presume to returne hither after such departure to be proceeded against as contemners of the lawes and magistracy and punished accordingly, and caused again to depart the country, And if they should the third time be so audacious and impudent as to returne hither to be proceeded against as ffelons. That noe person shall entertain any of the Quakers that have heretofore been questioned by the Governour and Council, or which shall hereafter be questioned, nor permit in or near his house any Assemblies of Quakers in the like penalty of one hundred pound sterling. That comissioners and officers are hereby required and authorized as they will answer the contrary at their perill to take notice of this act to see it fully effected and executed, And that no person do presume on their peril to dispose or publish their bookes, pamphlets or libells bearing the title of their tenents and opinions.

(Act VI, passed by Virginia’s Grand Assembly, “held at James Cittie, the thirteenth of March, 1659–60”; this same legislative session opened with an act electing Sir William Berkeley “Governour and Captaine Generall of Virginia”)

Nothing in the U.S. constitution (1789) and Bill of Rights (completed in 1789, ratified in 1791) limited this power of provincial governments to determine “whether men shall be safe, lawes established, offenders punished, and Governours rule” their godly commonwealths. Indeed, such provincial powers were formally protected in the final two amendments of the Bill of Rights:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

(the Ninth Amendment to the Constitution of the United States, entitled “Rights retained by the people”; as printed in 1809)

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

(the Tenth Amendment to the Constitution of the United States, entitled “Powers reserved to the states or the people”; as printed in 1809)

And for the civil rights division of President Trump’s Justice Department to suggest otherwise distorts the historical record, and is completely at odds with this country’s founding religious values, libertarian, and republican ideals.

Update

On 5/29/2020, the United States Supreme Court (SCOTUS) “rejected an emergency appeal” from the South Bay United Pentecostal Church in Chula Vista, California, challenging “state limits on attendance at worship services that have been imposed to contain the spread of the coronavirus”: seeSupreme Court Rejects Challenge to Limits on Church Services” by Mark Sherman of the Associated Press (posted to the PBS NewsHour website, 5/30/2020). “The church argued that limits on how many people can attend their services violate constitutional guarantees of religious freedom and had been seeking an order in time for services” on 31 May 2020, when more than 1,200 California pastors have said they plan to violate Governor Newsom’s restrictions on church openings.

Writing for the majority, Chief Justice John Roberts opined that the governor’s “restriction allowing [California] churches to reopen at 25% of their capacity, with no more than 100 worshipers at a time, ‘appear consistent’ with the First Amendment.” (M. Sherman, n. pag.)

I am very pleased to see SCOTUS exercise judicial restraint in its move to modernize the constitution, choosing in this case to honor “the original ‘public meaning’” of the First Amendment instead.


**  N O T E  **    For more on the early-modern Anglo-American concept, “Liberty of Conscience,” see the Editor’s Introduction to the digital reissue (2014) of Thomas Tryon’s The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey (1684) at our sister project known as Roses.
   This Editor’s Introduction also includes extensive discussion of the Quakers in Anglo-America, where they were persecuted for nonconformance with the doctrines and discipline of the established religion in regions such as New England and Virginia. Quaker women preachers who began missionary work in Maryland-Virginia and in the Massachusetts Bay Colony (situated around the present-day cities of Salem and Boston) in 1656 suffered harrowing persecutions equally with men. According to Joseph Grove’s edition of George Bishop’s New-England Judged (printed and published by Tace Sowle in 1703), the first Quakers to arrive at Boston in July 1656 were women: Mary Fisher and Ann Austin. More women arrived in August 1656: Mary Prince, Sarah Gibbens, Mary Weatherhead, and Dorothy Waugh. The magistrates of Boston savagely persecuted the visitors and in 1659–1661 put four Quakers to death (Mary Dyer was executed on Boston Common in 1660). Despite this, Quakerism took root in Massachusetts and flourished in Rhode Island, where Friends for a long time were in the majority.
   Undaunted by her Boston experience, the Quaker missionary Mary Fisher (c.1623–1698) journeyed to Constantinople in 1657–59, and met with the Ottoman sultan Mahomet IV at Adrianople, where he was encamped with his army. Of note, the sultan treated her much more courteously than did the English at Boston or the English diplomats at Smyrna, who also banished Fisher and her female companions, on grounds that they brought disgrace to the English nation and religion. In a letter dated March 1659, Fisher described her mission to the Mediterranean, and highlighted her meeting with the sultan: “I have borne my testimony to the king unto whom I was sent, and he was very noble unto me ... He received the words of truth without contradiction, they do dread the word of God many of them ... The English [in Italy and Turkey] are more bad most of them yet there hath a good word gone through them, and some have received it but they are few.” Despite the barbarous treatment Fisher received at Boston in 1656, she again emigrated to America in 1682, this time settling in Charlestown, where “she that spake to the great Turk” thrived as a “landlady and nurse” at a moment in time when the English were unusually open to religious tolerance.
   Quaker women had a uniquely visible role in the political and religious upheavals of the 17th century: for more, see the IN BRIEF topic on Early Quaker Women Writers.