Religious Freedom As the First Freedom

Religious freedom has often been referred to as the “first freedom” in America’s constitutional order, but some scholars have argued that liberalism requires that religious freedom not be treated as special or unique in the pantheon of human rights. In this post series, scholars and individuals from all different disciplines and faiths try to define religious freedom and explain why it is a right of particular importance.

By: Matthew J. Frank

Americans are fond of referring to religious freedom as “the first freedom,” and for support of this view like to point to the fact that “the free exercise” of religion is the first freedom mentioned in the First Amendment to the US Constitution, and so has a “firstness” twice over. 

Pedantic professors of constitutional history are prone to respond that when the First Congress proposed the amendments that later became known as the Bill of Rights, it actually sent a package of twelve amendments out to the states for ratification. What became the First Amendment was originally third on that list, the first two proposed amendments (having to do with comparatively minor institutional matters) failing to be ratified at the time (though one of them much later became the Twenty-Seventh Amendment). Moreover, they may note that the “free exercise” clause is preceded by something that, in its “firstness” in the First Amendment, must be even more important: the principle that there shall be no “establishment of religion” in America. This they sometimes view as evidence that American political life was to be disentangled from religious commitments.

Yet friends of religious freedom should not be embarrassed in the least to continue calling it the first freedom, notwithstanding these picayune historical objections. We have it on no less an authority than James Madison, the father of the Bill of Rights, that our duty to the Creator is “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Would Madison also view religious freedom as taking precedence over, or a pride of place among, our other rights? More to the point, should we?

The case for saying “yes” begins with Madison’s characterization of religious freedom as springing from a duty that we owe to God. It is a kind of American dogma that rights are prior to duties—even the Declaration of Independence seems to say so—but in the case of religious freedom the priority is the other way around. Religious believers—and throughout history that has described most human beings—understand themselves to be in a relationship with a divine, transcendent reality, whether understood as a Person or not, who is in some sense responsible for the ground of their very being. Thus they understand themselves as answerable to this divine reality’s ultimate concerns for humankind and for them as individuals. These concerns entirely encompass our moral life, and shape a kind of compulsion in our lives, a realm of unfreedom where the demands of conscience are concerned.

Religion thus necessarily colors one’s understandings of politics and its demands. The state that pretends to the kind of ultimacy that we attribute to the divine has overstepped its bounds. The building of any free society begins with a recognition of this principle. All other human freedoms—to think, to speak, to write, to teach and learn; to marry, to form families, to associate with others in all the varied loves of which we are capable; to work, to invent, to contract and acquire and buy and sell in assuring our material needs are met—all of these are built on the foundation of our freedom from the illusory mastership of the state, and a recognition of our relation to the true Master who made us the kind of beings we are.

It is therefore delusional to believe that the “no establishment” principle in American constitutionalism is anything other than a protection of faith and conscience from the state. And it is perilous to believe that religious freedom can be reduced to worship alone, or depreciated as against other claims of human rights that the state chooses to lift up in competition with it. No political project can long preserve the fullness of human freedom in all its dimensions that does not place religious freedom in the front rank, as truly the “first freedom,” never to be sacrificed to other causes.

Matthew J. Frank is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute and a visiting lecturer in Politics at Princeton University.

This piece was originally authored on March 31, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.