BYU Law Review


Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, the Clause’s ideological background is best understood in terms of neither Enlightenment secularism nor Evangelical Christianity, but rather in terms of what the eighteenth century called natural religion. Natural religion held that human beings were capable of using reason to discern the most basic principles of religion: that the world was created by God, that people ought to worship God, and that God has given them a law of nature that establishes their basic rights and duties with regard to one another. One of the most important natural rights was that of religious freedom: because religion was rooted in reason, individuals had an inalienable right to develop their own beliefs and to live and worship in accord with them. At the same time, religious liberty was bounded by a duty to respect the inherent rights of other individuals as well as the legitimate authority of the state.

In many ways, the classical eighteenth-century theory of natural religion and religious liberty was a humanistic one. At its heart was a recognition of the inherent worth of human beings. The theory held that individuals must be free to use their own minds to pursue truth, rather than having doctrines imposed on them by religious or political authorities. And it held that people with diverse beliefs were capable of living together in an open, self-governing society based on mutual acceptance and respect. These principles remain central to any adequate understanding of the Free Exercise Clause.

Of course, we no longer live in the same intellectual world as the founders. In the wake of Darwinian evolutionary theory, modern cosmology, and other scientific developments, it is no longer widely accepted that reason alone can establish the existence of God or natural law. The question then arises whether the eighteenth-century view can be recast in a way that retains its virtues without depending on controversial theological notions or unjustifiably favoring religious believers over other people. In this Article, I begin to develop such a view, which I call liberal humanism. Like the classical theory, this view emphasizes the ideals of human freedom, equality, and dignity that informed the adoption of the First Amendment. But the liberal humanist approach seeks to rework the classical theory in a way that reflects our contemporary understanding of those ideals.

The Article begins by summarizing the classical theory and showing how it was used by Thomas Jefferson, James Madison, and a broad coalition of groups as a justification for protecting religious freedom, first at the state and then at the federal level. Next, I discuss how the idea of natural religion can be transformed by moving away from the eighteenth century’s ontological approach (an approach that held that reason could demonstrate the existence of God as well as the moral implications that flowed from it) and toward a more phenomenological approach to religion — an approach that focuses on the ways that human beings search for meaning in the world. People experience meaning in all areas of life, and they integrate these experiences into more comprehensive conceptions of the world and of their place within it. Some of these worldviews are religious ones which find ultimate meaning within a transcendent realm, while others are secular ones which find such meaning within this world. Both kinds of worldviews can be reasonable, and so both are entitled to respect. For these reasons, the Constitution should be interpreted to protect not only religious freedom but also a comparable freedom to develop and live in accord with secular beliefs.

Next, I show that just as the eighteenth-century view provided an account of natural rights, the liberal humanist view can offer an account of fundamental rights within our modern constitutional order. I then discuss the light that this view can shed on two important issues in contemporary free exercise jurisprudence: whether individuals are constitutionally entitled to exemptions from laws that conflict with their conscientious beliefs, and if so, whether those exemptions properly may be granted only to those who hold religious rather than secular beliefs. The Article concludes with some brief reflections on how this approach can enable the secular and religious forces in our cultural battles to find some common ground.


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