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. Liberals are in this respect right to say they’re not trying to kill religious liberty. They’re trying to take it back to something like the form it had in the Anglo-American world when the Anglo-American world had a formal state religion—except now the state religion is supposed to be progressive liberalism.

Indiana’s Religious Freedom Restoration Act, like the federal one and those of other states, articulates its purpose in terms of the Free Exercise clause of the First Amendment (see especially sections 8, 9, and 10 of the statute). And one of the questions raised by the law is what sort of activity, particularly on the part of a business rather than an individual, in fact constitutes an exercise of religion.

But the fanaticism that has characterized much of the Left’s response to Indiana’s law over the past week has highlighted an element of the threat to religious liberty today that comes closer to the other protection of religious liberty in the First Amendment—the prohibition against religious establishment, rather than the protection of the free exercise of religion.

The case against the establishment of religion was particularly important to the author of the First Amendment, James Madison. Madison’s writing and activism on the question of religious liberty in Virginia had always emphasized the establishment question above all—an emphasis that had not always been part of the Anglo-American understanding of religious toleration, since Britain (like most of the American colonies and, at first, the states) had an established church.

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. (And remember, Indiana’s law says only that when such freedom is burdened, it should be clear to a judge that it was so for a compelling reason and that no less burdensome alternative was available.)

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.

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