When the colony of Louisiana became part of the United States in 1803, the mother superior of the Ursuline nuns in New Orleans wrote to President Thomas Jefferson, expressing concern over the security of their property, which consisted mainly of their school for girls. Jefferson replied:
The principles of the constitution and government of the United states are a sure guarantee to you that [your property] will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority...Be assured it will meet all the protection which my office can give it.
Contrast this episode with another image, two hundred years later. The Little Sisters of the Poor stand on the steps of the Supreme Court, party to a lawsuit against their own government. Like the Ursulines, they are in the business of running charitable institutions, in this case homes for the indigent elderly and dying. Their object, to use Jefferson’s words, is precisely to “govern themselves according to their own voluntary rules, without interference from the civil authority.” But the government, which Jefferson had pledged to be the protector of the sisters’ liberty, has now become the chief threat to it.
What had changed? I believe the answer has something to do with the connection between religious and economic liberty.
Religious freedom and economic freedom are, to borrow the words of James Madison, “equally the gift of nature.” Madison was not referring specifically to religious freedom and economic freedom when he wrote them, but he was making an argument similar to the one I’m making here.
The “Memorial and Remonstrance against Religious Assessments” was Madison’s intervention in a 1785 debate in Virginia concerning a bill in the General Assembly that would implement a tax to support ministers. Madison argued that “‘the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience’ is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; … Either then, we must say, that the Will of the Legislature … may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred.”
What Madison recognized and articulated at the dawn of this nation’s history, was that the various freedoms—for which Americans had fought and that Jefferson had insisted in his declaration were “endowed by their creator”—were woven together in a seamless quilt of justice. To pull on one thread was to threaten to unravel the whole fabric.
Government is the protector but not the creator of rights.
Human beings, by virtue of being human, are bearers of rights. There has been and continues to be disagreement about the source of those rights, but where there has been consensus—at least throughout most of our history—is that the source is not government itself. Government is the protector but not the creator of rights.
This recognition, once granted, naturally extends to every dimension of human experience and activity. If we believe coercion in economic affairs to be wrong, we are more likely to believe that coercion in religious affairs is also wrong, and vice versa. Madison himself emphasized the intertwining of such rights when he proposed that the rights of conscience were themselves a kind of property.
A somewhat different but closely related reason for the link between these two liberties is that both reflect at base a commitment to the limits of state power. Where, for example, a right to seek employment in whatever field an individual chooses is recognized, it is implicitly held at the same time that government does not possess the power to determine one’s profession. By the same token, where the right of a congregation to build a church or a mosque or a synagogue is recognized, it is implicitly understood that government does not possess the power to regulate religious practice by preventing the construction of places of worship.
In this way, religious liberty and economic liberty are both corollaries of the principle of limited government. Limited government in this sense does not mean libertarianism or even “small-government” conservatism. It means simply that there is a clear distinction between the state and society—that there are entities and institutions that exist prior to, independent of, or beyond the purview of the state. The state is not the sole or even primary source of guidance, meaning, or fulfillment. In other words, the principle of limited government stands in opposition to the concept of the totalitarian state.
The prohibition against government infringement on free exercise in the First Amendment was intended to protect not merely private religious activity but also public religious expression. Here religious freedom engages with yet another fundamental freedom—assembly or association. It is in their institutional manifestations that churches and other religious bodies gain the heft necessary to serve as a counterweight to the state.
Advocates of the market and champions of religious liberty alike would thus do well to defend both aspects of liberty...
Religious institutions have historically played a central role as alternative centers of authority and thus as bulwarks against tyranny. It is no accident that despots seeking totalitarian power always seek to bring a culture’s religious institutions under their thumbs. This targeting of churches in particular is due to the fact that they represent an especially dangerous type of alternative authority. The prospect of human allegiance to a nonhuman creator undermines the very foundations of despotic power.
This brings us back to the Little Sisters of the Poor and the 2010 Affordable Care Act. Whether you believe the ACA is good policy or not, it is indisputably the case that the legislation extended government action in the health care field and that this involved, at least in some respects, a restriction of economic liberty. There emerged mandates for employers to provide health insurance, for individuals to purchase insurance, and for insurance plans to cover certain treatments and procedures. This, quite predictably, opened up a religious freedom can of worms.
For the field of health care is rife with moral and religious issues. Questions related to sexuality and reproduction—birth control, abortion, reproductive technologies, gender identity and sexual orientation therapies and treatments—are some of the most controversial, neuralgic issues in contemporary American culture and politics. By becoming deeply involved in health care, government must necessarily begin taking sides in these disputes, and thus government policy begins impinging on the religious freedom of millions of health care institutions, medical professionals, businesses, and individual consumers.
The inescapable conclusion is that restrictions on economic liberty naturally entail restrictions on religious liberty—or at the very least aggravate the tensions inherent in a religiously pluralistic society. Economic statism has negative consequences for religious freedom. Advocates of the market and champions of religious liberty alike would thus do well to defend both aspects of liberty, for they are both “equally the gift of nature.”
This article is excerpted from lectures Schmiesing delivered in February at Jacksonville State University in Alabama and at Thomas More College in Kentucky.
