Sometimes people argue that the Framers couldn’t possibly have meant what they said when they guaranteed the free exercise of religion with no exceptions. The argument runs like this:
1. The “exercise” of a religion means not just believing what it teaches, but also acting as it teaches. 2. But some religions teach behavior that interferes with compelling state interests. 3. Therefore, when the Framers wrote that the free exercise of religion must not be prohibited, they must have meant that it must not be prohibited unless it interferes with such interests.
The argument is tempting. Surely there is something wrong with demanding the liberty to go on a shooting spree in the name of religion, or with saying “My religion teaches survival of the fittest, so I don’t have to obey traffic laws.” The state has a compelling interest in keeping public order.
But if we do accept the argument, then what is to stop the state from requiring evil acts? The state will always claim to have a compelling interest. Our rulers think “compelling interest” means “anything we want very much.”
It seems that we are at an impasse.
The problem is that we are treating the Framers as though they used the word “religion” to mean “anything people say they believe.” But that is not how they used the term.
In fact it is not how the Western tradition of jurisprudence uses any general term. For example, our traditions have taken the maxim that the will of the rulers has the force of law to mean that the reasonable will of the rulers has the force of law (Thomas Aquinas).
Similarly, the principle that law should be obeyed has been accepted with the proviso that an unust law is not truly a law, but an act of violence (Augustine of Hippo), and the dictum that custom interprets law has been interpreted according to the understanding that an unjust custom should be viewed not as a custom, but as a usurpation of custom (Edward Coke).
In the same way, when the Framers wrote that the exercise of religion must not be prohibited, they expected us to grasp that a religion which demands behavior contrary to the natural law -- or to the common good understood in the light of the natural law -- should be understood not as a religion, but as a perversion of religion.
That is not the same thing as a religion which happens to annoy the state.
This understanding of the clause would work pretty well – if only our rulers still believed in the natural law.
Tomorrow: Is There Collective Responsibility?