Alex Ooley (00:00)
Hello everyone and welcome to another episode of the Forge of Freedom podcast. I'm your host, Alex Uli. And today we're diving into one of the most foundational and most misunderstood pillars of American liberty, religious freedom. Where did it come from? What did the founders actually intend? And how did a 1947 Supreme Court case change the entire framework of church and state relations?

How does all this intersect with Christmas and the limits of government? We're going to cover a fair amount of ground today, history, law, philosophy, and a bit of sort of a seasonal reflection. So I hope you enjoy the topic and let's get into it. Let's begin with the text itself because it's kind of...

hard to sort through all the noise these days with the news and social media. And actually reading and understanding the words of the Constitution is ⁓ a rare thing.

The First Amendment says, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. So the first clause of the First Amendment has to do with...

non-establishment. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

This is relatively short clause, but it has generated more litigation, commentary, and confusion than almost any other constitutional provision. And I think there are a few key things that we need to note or take notice of. Here, first, what does Congress really mean? At the founding, word Congress wasn't symbolic. It meant the federal legislature.

the national government created by the Constitution. The First Amendment wasn't aimed at the states. It wasn't aimed at towns or localities. It wasn't aimed at school boards. It wasn't aimed at church ladies baking cookies in the basement. It was aimed at Congress. Congress shall make no law respecting an establishment of religion.

And I think this is, I've talked about this in the context of the Second Amendment on a number of occasions, but this is something that's often misunderstood is that the Bill of Rights was only meant to apply to the federal government. It was a restraint on government.

And the anti-federalists at the time were adamant that we needed the Bill of Rights. And the federalists who were proponents of the Constitution thought we didn't need the Bill of Rights, that the Constitution only grammated few and limited powers to the federal government, and that we didn't need these protections in place. The anti-federalists, thank goodness for their fortitude, they have been proven right many times over that the Bill of Rights is

is really the saving grace of the Constitution. What good the Constitution has done has been in large part due to the separation of powers in the Constitution itself and the Bill of Rights.

But there is two distinct prohibitions here.

Again, this at the time of the founding only applied to the federal government. But here in the first portion of the First Amendment, it says, shall be no establishment of religion and no prohibition on the free exercise thereof. This doesn't say anything about what you commonly hear in the media about the separation of church and state. It doesn't say any of that. It says the government...

shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." And these two clauses serve different functions and operate independently. The founders were not trying to secularize society. They weren't crafting a godless public square or a religious neutral culture. They were trying to

prevent the federal government from doing the very things the British Crown and Parliament had done for centuries by imposing an official church, mandating religious taxes, punishing dissenters, and dictating acceptable doctrine. The First Amendment was not anti-religion. It was anti-coercion. And that distinction is crucial.

To understand American religious freedom, we need to rewind even further to the 1600s and the 1700s, long before the First Amendment was even written.

Colonial America was not a beacon of religious liberty, at least not in the way we think of it today. Most colonies had official government-backed churches. Massachusetts supported the congregational church through taxes. Virginia funded the Anglican Church and required attendance. Other colonies heavily favored certain denominations.

dissenters were often fined, jailed, publicly whipped, or banished. And yet America became the birthplace of modern religious liberty. So why was that? Well, it was because minority religious groups refused to stay silent. Groups like Baptists, Quakers, Mennonites, Methodists, Separatists, Catholics, and a whole constellation of

other denominations. These communities didn't share the same doctrines but they shared the same enemy. State-backed, government-backed religious favoritism.

Here's one of the most important points, at least in my mind. Disestablishment, anti-establishment happened state by state, locally and voluntarily, not by some order from the Supreme Court.

By the early 1800s, states dismantled their establishments because the people demanded it. This is decentralization at work. This is federalism functioning properly. This is liberty emerging organically, not by judicial decree, not through government.

It's really impossible to talk about this topic without mentioning Thomas Jefferson and James Madison. Jefferson wrote the famous Wall of Separation Between Church and State line, but that line appears in a private letter written in 1802, more than a decade after the First Amendment was ratified. It wasn't meant to secularize government. It was meant to reassure a minority religious group, the Danbury Baptists,

that the federal government would never impose a national church. Madison, meanwhile, drafted the First Amendment and was a fierce opponent of religious taxes. Yet, he also issued presidential proclamations encouraging days of prayer, which the modern strict separationist framework would reject. So why does this matter? Well, it matters because the founders weren't trying to build, as we've said,

already, they weren't trying to build a secular administrative state. They were trying to prevent coercion, not expression. They fought against forced religion, not public religion.

They wanted a world where faith could flourish organically through persuasion, not compulsion. And when you think about government, what is government? Government by its very nature is a compulsory force.

And the founders understood that coercion and compulsion could have no part of a free society, especially when it comes to...

Religion.

Now let's fast forward to 1947, nearly 160 years after the First Amendment was written. New Jersey had a law reimbursing parents for school transportation, including parents whose kids attended Catholic schools. A taxpayer named Arch Everson sued, arguing that this violated the Establishment Clause. And this is where many things changed.

In Everson v. Board of Education, the court held that the Establishment Clause applies to the states through the Fourteenth Amendment, through the Doctrine of Incorporation. And I've been planning to do an episode on the incorporation doctrine for quite some time. I'll make that a priority in the new year. But I think that the Bill of Rights and the federal government, through the Doctrine of Incorporation, has

become largely misunderstood and I think.

misses the original intent because of incorporation, because it's applying, like we said at the beginning, not just to Congress, but the courts have said the Bill of Rights, while they originally applied only to the federal government, now apply to state and local governments. And so it centralizes authority.

But the court also held not only that the Establishment Clause of the First Amendment applies to the states through the Fourteenth Amendment, but that the reimbursement itself did not violate the clause. But the court in doing so adopted a strict rhetoric about the wall of separation. Justice Hugo Black's language, High and Impregnable Wall, became the guiding metaphor for church-state relations for the second half of the twentieth century.

But here's sort of the paradox. The court used strict separationist rhetoric to uphold a program that helped religious families. So the text of the opinion supported neutrality, but the tone of the opinion fueled decades of anti-religious litigation. And this tension defined Establishment Clause law for generations.

After Everson, the court tried to create tests to determine when a law is, quote, established, end quote, religion. The most famous was the Lemon Test created in 1971, where the law must have been, have a secular purpose. The law's primary effect must neither advance nor inhibit religion, and the law must not foster excessive government entanglement with religion.

If a law failed any one of these three prongs, it was unconstitutional.

And remember, this is being applied nationwide now, not just to restrict federal government action, but also state and local government action. And the result is really decades of chaos. Because now you have the federal government micromanaging.

this intersection this connection between

religion and government nationwide, not just vis-a-vis the federal government.

Christmas displays were constitutional in one county and unconstitutional in the next. The Ten Commandments monument was allowed on one courthouse lawn but forbidden on another. Neutral programs helping students were struck down because religious groups might benefit indirectly. The court created entire constitutional doctrines that seemed more like psychology experiments than legal rules.

And none of it resembled how the founders understood religious liberty. And again, this was all brought about because of attempt to incorporate the First Amendment to apply to the states, into localities, which it was never meant to do.

And in the last 20 years...

The Supreme Court has slowly corrected course in small ways, but the problem still remains the same. The federal government is still overseeing religious liberty, or the lack thereof, at the state and local level. And we're asking the federal government to sort of referee the First Amendment across the nation.

So why should any of this matter in 2025? Why should it still matter today? Well, it's because religious liberty is one of the most powerful protections we have, not just for believers, but for everyone. As I mentioned at the beginning here, the founders recognized, they put it in the first line of the First Amendment. They thought it was so important.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The First Amendment, most people know as protecting the right to the freedom of speech, but the freedom of speech is listed after.

the clause, these two clauses protecting religion, freedom.

So the founders understood this was a pillar of a free society.

It was, like I said, one of the most powerful protections we have, not just for believers, but for everyone. protects conscience, it protects community, it protects the freedom of association and of education, it protects parental rights.

and it protects the ability to live according to your deeply held beliefs. And a society that can force you to violate your conscience is not a free society.

Think about that for a moment.

course, the freedom of speech is an incredibly important component of a free society.

But religious liberty protects your conscience, part of your being that precedes speech.

And the founders understood the importance of keeping out of the government, out of that most sacred component of our existence.

because they knew that a society that can legislate belief is a society capable of anything.

So let's bring this home, ⁓ literally and figuratively, because we're in the Christmas season and Christmas is one of the clearest illustrations of what religious liberty looks like in real life. For millions of Americans, Christmas is a profoundly spiritual celebration. For others, it's cultural, family, food, music, and so on. For some, it's simply another day.

But here's the key, every expression of Christmas is voluntary. There's no church police, no government mandated services, no compulsory observance, no official Christmas approved by a federal bureaucracy. Christmas in America is decentralized and beautifully so as it was intended to be.

Every home, every church, every family celebrates differently. And that freedom exists only because the founders understood something essential. Faith cannot be coerced. You cannot compel...

belief. You may be able to compel behavior, but you cannot compel belief. You cannot legislate love or mandate devotion. And that leads us to the heart of it. Religious liberty reflects a profound truth. Genuine love and genuine faith can never be forced. It can never be legislated, and it can never be imposed. These things must arise freely from the heart

from the conscience, from inward conviction. That's why coerced religion is hollow and free faith is so powerful. And Christmas is a living demonstration of voluntary faith. There's midnight mass and Advent services, carols.

Nativity plays, gift giving, or just quiet reflection at home. No government defines Christmas. People define Christmas. And because of that, it remains meaningful. Christmas reminds us that faith flourishes when it is free. Communities flourish when they are decentralized. Conscience remains sacred when government keeps.

It's distance. That's the real story of religious liberty.

yesterday, today, and especially at Christmas.

I hope you enjoyed the episode. Like I said, I've been intending to talk about the doctrine of incorporation for quite a while. It's an important topic, one that very few people maybe have ever heard of, let alone understand, and one that I think has huge implications not just for religious liberty but for many of the liberties, the freedoms that were...

the founders had hoped to protect through the Bill of Rights. So look forward to that episode. It won't be the next episode by any stretch. I'm coming up on 200 episodes now. I've got a few guests that I've lined up in the new year. So keep an eye out for those. And I hope you have a Merry Christmas and a Happy New Year. Thanks again for tuning into the Forge of Freedom. As always, you can find us on YouTube, Rumble, Facebook.

in all the most popular podcast streaming platforms. You can also find us at forgeoffreedom.com. Until next time everybody, remember you are the Forge of Freedom.