Redefining Religious Liberty
Sep 30, 2021 by David Fowler
At a recent conference, Christians expressed concern that civil government was increasingly infringing on the right to religious liberty. But it became clear to me that the right will continue to shrink if they don’t change the way they speak about and defend the right.
The right to religious liberty—which is the right not to have one’s conscience bound by the state regarding matters of ecclesiology (ordering of the church) and beliefs about theological doctrines regarding God’s being and nature, cosmology, anthropology, soteriology, and eschatology—was usually spoken of by conference attendees as a “constitutional right.”
But the right to religious liberty is not rooted in the Constitution. Rather it is rooted in a fundamental, enduring law that precedes the Constitution and upon which the Constitution is framed. Therefore, the Constitution, being “enacted” by the states, is what legal scholars would call positive law or, we might say, civil law, not fundamental law and, consequently, “constitutional rights” would be only a civil law right subject to change like all other civil laws.
Therefore, Christians, particularly Christian lawyers, must assert that the First Amendment simply acknowledges the existence of a right that is found in the fundamental law that precedes the Constitution. They must assert that rights are enumerated in the Constitution, not created or “enacted” by the Constitution.
This is important because the rule of law is predicated on the understanding that fundamental law precedes all civil law.
Fundamental law, in turn, is based on a belief in given, objective realities that can be known and discovered. If there is no such fundamental law, civil law itself makes or creates what is deemed real.
This is important, because it is this fundamental law—giving rise to the rule of law—that restrains how the Constitution can be interpreted and what civil law should do or not do.
Thus, when Christians, including Christian lawyers, defend a “constitutional right” based only on what the justices have said in prior opinions about the right and do not require the Court to examine those opinions for their coherence to the fundamental law giving rise to the right the Constitution enumerates, then the opinions themselves begin to take on the character of law. When that happens, we are operating under the law of men—a majority of justices—not the rule of law.
A Christian lawyer who considers only Court precedents is conceding, as a practical matter, that all law is positive law, creating what is rather than conforming to what is. As a result, we can get further and further away from what the Constitution really means.
For example, in Obergefell v. Hodges, the Court tried to transform marriage into a relationship that is created by civil law instead of a relationship merely acknowledged by civil law authorities.
The Court said that rights “come not from ancient courses alone”—which would be the right to the formation of a husband-wife marital relationship—but from “new insights” into what “liberty” demands.
Then the Court infused into the word “liberty” something completely foreign to the common law understanding of liberty—freedom of movement, of locomotion—to say that liberty is the right to define one’s own understanding of the marital relationship and force civil government to license it.
If the Court can transform marriage by disregarding its roots in fundamental law and make it a matter of civil law only, what makes Christians think the same can’t happen with religious liberty?
Religious liberty, like marriage, will give way to “new insights” into the liberty the Constitution requires, and that liberty will control everything outside of what one does during a Church service or thinks in one’s head.
To stem the tide of the Supreme Court’s abandonment of the rule of law and making everything a matter of man-made civil law only, two things need to happen.
At every opportunity, state legislators should enact laws and state attorney generals should defend them on the basis of the Ninth Amendment. It says the “enumeration” of rights “shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment acknowledges that we have rights other than those that are enumerated. Its very language acknowledges the rule of law—a law providing rights that precedes the Constitution. More importantly, the Amendment necessarily implies that the rights that are enumerated need to be interpreted according to the common law from which they were drawn.
When legislators specifically rely on the Ninth Amendment they are protecting the rights the people of their state have under the fundamental law on which the Constitution rests and by which it must be interpreted. Only this will restore the rule of law.
Those who want to deny any given objective realities to which we are subject want to talk about “constitutional rights.” But their talk implies that we look only to the Constitution for our rights.
Since words matter, let us change the nature of the conversation. Let those of us who believe in fundamental law start talking about enumerated rights rather than constitutional rights. It is a short-hand way of saying our rights do not come from the Constitution.
Legislators and citizens need to start putting the debate over rights on our terms, and thereby restore the rule of law.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
The right to religious liberty—which is the right not to have one’s conscience bound by the state regarding matters of ecclesiology (ordering of the church) and beliefs about theological doctrines regarding God’s being and nature, cosmology, anthropology, soteriology, and eschatology—was usually spoken of by conference attendees as a “constitutional right.”
But the right to religious liberty is not rooted in the Constitution. Rather it is rooted in a fundamental, enduring law that precedes the Constitution and upon which the Constitution is framed. Therefore, the Constitution, being “enacted” by the states, is what legal scholars would call positive law or, we might say, civil law, not fundamental law and, consequently, “constitutional rights” would be only a civil law right subject to change like all other civil laws.
What the Foregoing Means for “Constitutional” Rights
Therefore, Christians, particularly Christian lawyers, must assert that the First Amendment simply acknowledges the existence of a right that is found in the fundamental law that precedes the Constitution. They must assert that rights are enumerated in the Constitution, not created or “enacted” by the Constitution.
Why This is So Important
This is important because the rule of law is predicated on the understanding that fundamental law precedes all civil law.
Fundamental law, in turn, is based on a belief in given, objective realities that can be known and discovered. If there is no such fundamental law, civil law itself makes or creates what is deemed real.
This is important, because it is this fundamental law—giving rise to the rule of law—that restrains how the Constitution can be interpreted and what civil law should do or not do.
Conflating the Rule of Law with the Constitution
Thus, when Christians, including Christian lawyers, defend a “constitutional right” based only on what the justices have said in prior opinions about the right and do not require the Court to examine those opinions for their coherence to the fundamental law giving rise to the right the Constitution enumerates, then the opinions themselves begin to take on the character of law. When that happens, we are operating under the law of men—a majority of justices—not the rule of law.
A Christian lawyer who considers only Court precedents is conceding, as a practical matter, that all law is positive law, creating what is rather than conforming to what is. As a result, we can get further and further away from what the Constitution really means.
What This Error Looks Like
For example, in Obergefell v. Hodges, the Court tried to transform marriage into a relationship that is created by civil law instead of a relationship merely acknowledged by civil law authorities.
The Court said that rights “come not from ancient courses alone”—which would be the right to the formation of a husband-wife marital relationship—but from “new insights” into what “liberty” demands.
Then the Court infused into the word “liberty” something completely foreign to the common law understanding of liberty—freedom of movement, of locomotion—to say that liberty is the right to define one’s own understanding of the marital relationship and force civil government to license it.
Redefining Religious Liberty
If the Court can transform marriage by disregarding its roots in fundamental law and make it a matter of civil law only, what makes Christians think the same can’t happen with religious liberty?
Religious liberty, like marriage, will give way to “new insights” into the liberty the Constitution requires, and that liberty will control everything outside of what one does during a Church service or thinks in one’s head.
What is needed?
To stem the tide of the Supreme Court’s abandonment of the rule of law and making everything a matter of man-made civil law only, two things need to happen.
Actions by Legislators
At every opportunity, state legislators should enact laws and state attorney generals should defend them on the basis of the Ninth Amendment. It says the “enumeration” of rights “shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment acknowledges that we have rights other than those that are enumerated. Its very language acknowledges the rule of law—a law providing rights that precedes the Constitution. More importantly, the Amendment necessarily implies that the rights that are enumerated need to be interpreted according to the common law from which they were drawn.
When legislators specifically rely on the Ninth Amendment they are protecting the rights the people of their state have under the fundamental law on which the Constitution rests and by which it must be interpreted. Only this will restore the rule of law.
Actions by Citizens
Those who want to deny any given objective realities to which we are subject want to talk about “constitutional rights.” But their talk implies that we look only to the Constitution for our rights.
Since words matter, let us change the nature of the conversation. Let those of us who believe in fundamental law start talking about enumerated rights rather than constitutional rights. It is a short-hand way of saying our rights do not come from the Constitution.
Legislators and citizens need to start putting the debate over rights on our terms, and thereby restore the rule of law.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
