Against an established church

Yuval Levin, in "The Church of the Left," argues that the First Amendment guarantee of religious liberty isn't so much the issue in recent controversy as is the violation of the establishment clause by the implicit recognition by the law of a new established church:

James Madison

.... Madison’s case against an established church, perhaps most notably in his 1785 “Memorial and Remonstrance against Religious Assessments,” was rooted in a core principle of religious liberty that is particularly important to remember in the kinds of debates we have seen in the last few years: That religious freedom is not a freedom to do what you want, but a freedom to do what you must. It’s not a freedom from constraint, but a recognition of a constraint higher than even the law and therefore prior to it and deserving of some leeway from legal obligations when reasonably possible. .... Madison put the point this way:

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to Him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.

It is important to note that Madison was making this case not in the context of arguing for permitting the free exercise of religion but rather in the context of arguing against the establishment of any religion by law. His point was that no one ought to be compelled to affirm as true a religious tenet he took to be false and that no one should be compelled to participate in a religious rite that violated his own understanding of his religious obligations. ....

.... The question of the definition of marriage is, for many people, a fundamentally religious question. It is, of course, also a civil question in our country. But some religiously orthodox wedding vendors are finding themselves effectively compelled by the civil authorities to affirm an answer to that question that violates their understanding of their religious obligations. They would like to be relieved of that compulsion, but they are being told they can’t be because the larger society’s understanding of the proper answer to the question should overrule the answer prescribed by their religious convictions, and if they want to participate as business owners in the life of the larger society they must give ground.

They are in this sense more like religious believers under compulsion in a society with an established church than like believers denied the freedom to exercise their religion. ....

.... The florist can be Christian as an individual, but his store can’t be, because institutions, unlike individuals, are creatures of the law and our law already has a religion: progressive liberalism.

We who are appalled by the perverse reaction to the Indiana law are not exactly defending the free exercise right; we are in a sense opposing a violation of the prohibition on religious establishment. The point is not that running a flower shop is a way of practicing one’s religion. The point is that, if reasonably possible, people should not be compelled as the price of entry to the public square to honor as true what their understanding of their religious obligations compels them to judge false. ....  [more]

The Church of the Left