Relying on Associate (not Chief) Justice Joseph Story‘s recasting of the First Amendment’s approach to religious establishment and free exercise, the American Family Association’s Bryan Fischer is continuing to press his case that the Framers merely intended the clauses to keep Christian sects from fighting amongst each other, and that therefore Muslims have no First Amendment right to build mosques.

Brilliant jurist he may have been, but Story was too much a prisoner of the Pan-Protestantism of the Second Great Awakening to acknowledge the Enlightenment convictions that lie behind the religion clauses. Warren Throckmorton cites chapter and verse from the constitutional debates to show how mistaken the Story-Fischer view is. I’d just add these paragraphs from George Washington’s famous letter to the Jews of Newport, written in August of 1790, less than a year after Congress submitted the Bill of Rights to the states.

The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy–a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

Washington’s point is that the new country established rights of conscience on a precisely equal basis–that this was not a Christian place that was kind enough to let Jews worship as they wished. To be sure, it took a while for this regime to establish itself in the several states. But there can be no doubt that, so far as the Father of His Country was concerned, the Constitution put all worshipers on the same footing.

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