Hall Defends the Sacred Right of Conscience at Constitution Day
Posted Sep 18, 2024
Yesterday, Mark Hall spoke at Union’s Constitution Day. His first lecture was on religious liberty and his second lecture was on Christian nationalism. Hall is a Professor at Regent University’s Robertson School of Government and a Senior Fellow at the Center for Religion, Culture, and Democracy. He has written or edited twelve books and many articles and is considered one of the premier scholars on the role of religion at the time of the Founding.
In his first lecture, Hall said that Christians invented religious liberty. In the First Century, Origin argued that there should be no compulsion in matters of faith. While one could argue that Origin supported this because the church was prosecuted, Christians still have been at the forefront of religious liberty, even though there are times that Christians coerced people to be Christians.
By the time of the founding of the colonies in the US, there were many reasons that religious liberty was valued. First, religious diversity in the nation meant that no religion was the majority, and each pushed for its own religious liberty which created a desire for tolerance of other faiths. While there were states that had established churches, these states also allowed other denominations to worship God as they pleased. Second, many people thought they had a natural right to worship God due to the dictates of their conscience. Third, individuals like George Mason who was the principal draftsman of Article XVI of the Virginia Declaration of Rights used theology to justify the right of conscience. Overall, many at the time of the Founding saw religious liberty as the sacred right of conscience.
He then discussed how the Founding Generation protected religious liberty. He concludes that the Founders believed that a law of general applicability that forces people to act against their religious beliefs was wrong. An example of this is the response to Quakers and others who were pacifists and refused to fight in the Revolutionary War. Instead of coercing these individuals to fight, they were excused from carrying arms but required to engage in non-combat roles, pay for a substitute soldier, or some other exemption. Hall then went on to explain further why the Founders believed in robust religious liberty protections that applied to all religions, including non-Christian religions.
By the 1960s, Hall argued that a religious liberty consensus had developed in the US pointing to the Sherbert test. In Sherbert v Verner (1963), Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. South Carolina responded by denying her unemployment benefits because her refusal to work on Saturday was not a good cause to accept available work. Justice William Brennan, a liberal, wrote the Supreme Court’s majority opinion overruling this decision by applying strict scrutiny to the case because religious liberty is a fundamental right. Under strict scrutiny, the state must have a compelling state interest to justify the discrimination which is achieved through the least restrictive means. While South Carolina had a compelling interest, it was not narrowly tailored enough. The Supreme Court continued to provide exemptions for minority religious beliefs and behaviors by exempting the Amish from mandatory school requirements beyond a certain age.
He suggested that the religious liberty consensus broke down in Employment Division v Smith (1990). For hundreds of years, native Americans had used peyotes, a hallucinogenic drug in their religious services. In this case, two Native American counselors for a drug rehabilitation organization were fired for drug use. They filed for unemployment benefits, but Oregon denied the request because they were fired for misconduct. When the case reached the Supreme Court, the conservative Justice Scalia wrote for a majority ruling that an individual's religious beliefs did not excuse him from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate. In response to this ruling, Congress passed the Religious Freedom Restoration Act (RFRA) unanimously in the House and 97-3 in the Senate to restore the Sherbert test. The Supreme Court struck down Congress overriding its authority but upheld the federal government using the test as an affirmative defense against the federal government. Congress then extended religious liberty through other laws and many states passed their own versions of the RFRA.
Since that time, there have been further attempts to weaken religious liberty. The Obama Administration refused to use the term religious liberty and instead spoke of a right to worship. This change in terminology was designed to restrict religious liberty to the home and places of worship. Due to changing liberal beliefs on tolerance and social liberalism, liberals are not disinclined to support religious liberty exemptions. Instead, they would change laws that exempted pro-life medical professionals from performing abortions or believers from engaging in activities contrary to their faith, such as baking a wedding cake for a same-sex wedding. Instead, they would force believers to violate their right of conscience to advance social equality. Hall ended his talk by urging the attendees to support a more robust religious liberty and sacred right of conscience.