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.