A right to “do religious things”

This Sunday marks an important anniversary. Exactly 236 years ago, America’s founders signed a one-of-a-kind document, the United States Constitution. This document encapsulated a grand experiment setting about on a project of self-government, a project that established our democratic system of government, divided power between three equal branches, and formed the foundation upon which our freedoms rest.

Long ago, I had the opportunity to attend a naturalization ceremony officiated by the federal court of appeals judge for whom I worked. During that powerful service, first-generation immigrants were granted U.S. citizenship. To secure their citizenship they swore an oath of allegiance, to among other things “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.”

Today, I find myself remembering that ceremony and thinking of families like so many of our own who immigrated here from far-flung regions. If you ask American immigrants the reason they came to the United States you are likely to get lots of different answers. They may tell you that they came to provide a better life for their children. Or to be physically safe and enjoy the rule of law. Or to establish greater opportunities and a chance to achieve the American dream. But an overarching reason behind the difficult task of crossing oceans and borders to start anew is grounded in a universal desire to be free.

This desire to be free is not new. Long ago, in the 17th century, thousands of Puritans came to America to escape religious persecution. In the 1620s, the leaders of the Church of England became increasingly hostile to the Puritans. They insisted that the Puritans fall in line with traditional religious practices. Dissenters were punished harshly, one Puritan man, for example, “was even sentenced to life in prison, had his nose slit, his ear cut off, and his forehead branded ‘S.S.’—short for sower of sedition.”

Today, the Bill of Rights protects the free exercise rights of religious dissidents like the Puritans. We all have the right to attend whatever church, mosque, or synagogue we want to, or none at all. The Bill of Rights ensures you can hold up a picket sign or own a gun or write a Facebook post about your first pumpkin spice latte of the season or disapproval of your mayor’s policies.

Of all the rights guaranteed in the Constitution, including those specifically enumerated by the Bill of Rights in 1791, one stands out among constitutional protections around the world: the First Amendment and the twin freedoms of speech and the free exercise of religion.

Importantly, the Framers didn’t just ensure that Americans can hold a particular set of religious beliefs in their heart and mind, but also that they can act on their faith. Perhaps they had heard of Oliver Cromwell’s empty promise of religious “freedom” to Catholics in Ireland: “As to freedom of conscience, I meddle with no man’s conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.” In Cromwell’s England, Irish Catholics had the freedom to believe, but not act—even in worship. And that’s a very narrow freedom indeed.

As explained in a friend-of-the-court brief we recently filed in Carson v. Makin, a case in which the U.S. Supreme Court ruled that government cannot single out religious schools for discriminatory treatment, “the Framers drafted the Free Exercise clause to protect not only the right to be religious in some metaphysical sense but also the practical right to participate in religious activity.” And they did so for good reason. “There is a long history of governments paying lip-service to religious freedom while denying people of faith the ability to engage in religious activities like worship and prayer. Indeed, "the right to be religious without the right to do religious things would hardly amount to a right at all.’”

For believers who were born in America and those who came here by choice, none of us should take our freedom to exercise our religion for granted. We have the right not just to pray silently or read our Bible in secret, but to live out that faith. To start a Christian group on a public university. To operate a business that’s consistent with your religious beliefs. To adopt a child from foster care and stay true to your core convictions.

But, despite the guaranteed protections of the First Amendment, all of these actions are still under threat. Government officials continue to disregard the Constitution and enact laws and enforce regulations that squash our freedoms. Indeed, the Constitution means nothing unless courts are willing to uphold it. It’s precious and in a precarious state, and on this day commemorating its significance, let’s resolve afresh to defend the Constitution and our precious liberties.