Scripture informs us that the generations come and the generations go, but the earth remains forever. So, too, each generation confronts the fundamental struggle for human dignity and the abiding threats to liberty, including the fundamental right to live according to transcendent mandates. I would like to begin by sharing some reflections about the Supreme Court of the United States as one influential participant in the global conversation about religious liberty, and then turn to the cultural and political background that animated the powerful embrace of religious liberty as the First Freedom in the American constitutional order.
At every turn in the evolution and defense of religious freedom, as we will see, Christian pluralism and vibrancy have played pivotal roles in limning the generous contours of the freedom of conscience and belief in America. This is not to diminish the role of Enlightenment ideas or vital struggle of other religious minorities for a place at the civic table. But from the beginning, certain characteristics of the Christian community inspired the quest for, and fueled the constitutional defense of, religious liberty. Those characteristics, in brief, include the pluralism and absence of a dominant denomination, the vibrancy of free voluntaristic churches, and the agitation by dissenters or unpopular sects for their conscience rights. Before I provide illustrations, it is necessary to sketch the unique role of the Supreme Court in the American constitutional order.
For much of the American constitutional experience, the United States Supreme Court had surprisingly little to say about religious liberty. The reason for its silence was by no means Churchillian (or Clement Attlee–like) modesty; rather, it was the text of the First Amendment itself.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The express (and limited) textual reference to Congress thus meant that the Constitution's Religion Clauses were deemed applicable only to Congress (and the federal government more generally). Congress did little – for decades – that touched on questions of religious liberty.