A few weeks ago, a friend of mine in religious studies returned from a conference at a major law school with this report: “Not all, but the majority of presenters agreed that Christians should be marginalized and have their freedom of speech and religion severely restricted because of how hateful their beliefs about sin are and the dignitary harm these beliefs cause others. Am I just young and naive and in reality nothing will come of this, or is it a truly scary reality that leading law professors are saying this?”
I don’t know whether my friend will be reassured or further discouraged if he reads The Rise and Decline of American Religious Freedom, but he will discover one leading scholar in the field who shares his alarm and addresses the matter with purpose and equanimity. Steven D. Smith, Warren Distinguished Professor of Law at the University of San Diego, has composed an essay rather than a treatise or a legal brief, an attempt to get partisans on both sides of the culture wars to see today’s disputes concerning politics and religion in historical perspective. Writing as a man of soft-spoken faith, he aims to begin a conversation, not avoid one, although he is surely aware that those who won’t listen are difficult to persuade.
Smith begins with what he calls the “standard story” told by the Supreme Court and its law school admirers: Religious liberty in America was an Enlightenment experiment, launched by the First Amendment, diverted for a century-and-a-half by a benighted Protestant establishment, rescued and realized by a heroic Court that insisted on secular neutrality in law and government, an achievement now threatened by the Religious Right. Conceding genuine persecution of religious minorities in the nineteenth and early twentieth centuries—for example, of Catholics, Mormons, and Jews—Smith nonetheless shows everything else in this narrative to be false or seriously distorted.
First and foremost, the American experiment with separation of church and state needs to be understood in the context of the millennium-and-a-half-long struggle of Western Christians to work out a viable way to effect Christ’s command to “Render … to Caesar the things that are Caesar’s, and to God the things that are God’s.” After persecution, toleration, then endorsement in the Roman Empire, the establishment of Christendom and the controversies surrounding Investiture, the Reformation and its attendant religious wars, Erastian domination of churches by sovereign princes gradually softened to permit some toleration, the American experiment of separation of church and state sought to protect the freedom of the church in the New World circumstance of religious pluralism, Smith argues. Moreover, American recognition of liberty of conscience drew upon a tradition of Christian interiority as old as Christ’s discourses about sin and conversion in the Gospels. In other words, the key elements of the American dispensation were anchored in Christian theology and tradition, according to Smith, not imposed by Enlightenment critics. Even the most Enlightened progenitors of religious liberty—from John Locke to Thomas Jefferson and James Madison—made specifically Christian arguments in its favor.
In this context, protection against religious establishment and guarantee of free exercise of religion in the First Amendment followed naturally from Christian thinking in America; there was so little debate about the proposed amendment in the first Congress because there was so much agreement about what was to be done, at least at the federal level. To be sure, Smith notes, the states had different dispositions in 1789, varying from an active (if retreating) establishment in Massachusetts to Jefferson’s recently enacted statute in Virginia, but all promised protection to liberty of conscience and all agreed that the new federal government should have no jurisdiction over church matters. That consensus, he says, is all the religion clause of the First Amendment meant to entrench. This solves the puzzle that baffles, or ought to baffle, proponents of the “standard” interpretation, namely, how the same Congress that purportedly proclaimed Enlightened secularism also voted themselves a chaplain, proclaimed national days of prayer and thanksgiving, funded missionaries to the Indians, and the like. Their belief in Christian liberty informs and explains it all.
Smith is not an originalist, or at any rate does not argue as one in this book. Instead, he considers how the meaning of religious liberty developed over the course of the nineteenth century, so that by the time of the Fourteenth Amendment the Virginia doctrine of separation had won widespread acceptance. His key point is that for the most part questions about religious freedom stayed out of court—public prayer was common, as was Bible reading in public schools, Sunday delivery of the mail was suspended by act of Congress, biblical morality was enshrined in law—or when brought to court, as in church property disputes, things were resolved without invoking the Constitution.
Citing Larry Kramer’s study of “popular constitutionalism,” Smith identifies a distinctive “American settlement” of these matters through a “soft constitution” in politics rather than (“hard”) constitutional law in court: “[W]ith respect to religion (and much else), the American political tradition might be understood as the product of the ongoing competition and collaboration between the providentialist and secularist interpretations of the Republic” (94). The providentialists sided with Washington’s admonition in his Farewell Address that liberty depended on morality, which in turn for the most part depended on religion, and drew the conclusion that government, without preferring any particular denomination, might encourage the spirit of religion to sustain the spirit of liberty. The secularists, by contrast, followed Jefferson and Madison in thinking government involvement with religion was likely to corrupt both church and state, concluding that a wall of separation was needed between them. Smith does not precisely align the providentialists with the Federalist-Whig-Republican parties or the secularists with the Jeffersonian-Democratic parties, though the fit is generally close, instead he prefers to note cross-over moments. On the whole, he writes, “This arrangement had a down-to-earth, blue-collar, somewhat uncouth quality” (77), rather than theoretical exactness. That is precisely why it could facilitate compromise and, for the most part, peace.
All this goes sour, Smith thinks, when the Supreme Court takes it upon itself to replace the American settlement with a constitutional victory for the secularist party, which takes place not so much in the Everson case in 1947, where the Court after all upheld school-bus-money aid, but in the school prayer cases in the early 1960s, where the Court forbade a near-universal practice in the name of the new and incoherent principle of neutrality. The Court’s jurisprudence, still enshrined in the Lemon test—permissible legislation must entail a secular purpose, have a neutral primary effect, and avoid church-state entanglement—now wobbles back and forth between sustaining well-established practices (legislative prayer, the ministerial exception to antidiscrimination law) and striking other forms of accommodation (graduation prayer, denominational student groups), not because the justices are arbitrary but because the standard is mistaken.
Since religious belief and practice informs so many areas of life, and since religions differ so greatly, government involvement and noninvolvement have different effects on different religions depending on the issue in question and on the tenets of the different faiths, making neutrality simply impossible. Far from heroically reviving the American tradition of religious liberty, the Court has, by favoring one strand of a dynamic tradition, unraveled what made the American settlement exceptional: “[A]s religious conflicts over the centuries have demonstrated time and again, where disagreements are framed not in terms of legitimate contesting conceptions but rather in terms of an official position or orthodoxy versus heretical and illegitimate deviations, respectful disagreement becomes difficult; it is replaced by a discourse of accusation, anathematization, and abuse” (124). And the ultimate consequence, as he sees it, is not merely the triumph of one conception of religious liberty over another, but the collapse of religious liberty as an independently recognized good. Like John Rawls, secularist law professors see religious liberty as scaffolding for the development of individual rights to free expression and equal treatment. But now that the structure of libertarian and egalitarian norms is built religious liberty has become superfluous or even dangerous.
There is much to admire in Smith’s revision of liberal orthodoxy. I have a quibble here and there about the history—for example, conscience and its freedom are well-developed in the Catholic tradition as well as the Protestant, though different in insisting on the proper formation of conscience by authoritative teaching; the word religion likewise has a well-developed meaning long before Locke, for example in Aquinas, where it appears as an element of the virtue justice; and I wish Smith had mentioned that the freedom of the church was the first freedom secured in Magna Charta—but for the most part Smith offers a needed corrective to liberal presumption, which is so often ignorant of all things theological or ecclesiological and so typically arrogant in its disregard of fellow citizens’ good faith. On three points I would like to see Smith press a bit further.
First, I think Smith underplays what is genuinely new about religious liberty in America. Religious pluralism was possible in ancient empires—Cyrus’ Persia, known to the Greeks and the Hebrews, is the classic example—but classical republicanism had insisted that citizens need to be of one mind on the most important things if they are to govern themselves, and the modern revival of sovereignty was in accord. The American innovation was to permit religious pluralism in a republic, resting satisfied with common consent to constitutional principles and institutions without probing the reasons for consent in people’s fundamental interests or their underlying faith. This is embodied in the prohibition on religious tests in Article VI of the original Constitution and in the First Amendment, since what was at issue for the founders was a genuine (if limited) republican government at the national level, not a mere league or federation for the common defense; it is why classical-republican arguments, particularly about size but also about pluralism, were employed against the Constitution. The American settlement Smith rightly extols, in other words, is not a happy accident or a mere practical arrangement, but a principled decision to limit the reach of governmental and political practice by preserving a space outside politics for the human encounter with truth.
Second, and consequently, I think that Smith’s “principle of contestation” is another name for political liberty, and this was grasped by Americans not only instinctively but self-consciously. The structure of allowing partisan disagreement on issues of law and policy within an overall constitutional consensus permeates the whole of American government. Issues are freely debated and resolved through representative institutions; they can be revisited when opinion shifts or circumstances change; losers in any contest know they will have another chance and learn how to compromise their platform and modulate their appeal in order to help a new majority coalesce; and there is sufficient complexity in government and civil society to allow innovations to be tested by experiment and individuals to be tried by experience before they are adopted by the whole. Constitutional law might be called upon to police the settled boundaries of political contestation, and occasionally to repair a breach, but when courts exclude from politics wide areas of law and policy, they do more than harden the soft: They do nothing less than usurp political liberty. Smith sees this clearly in the matter of religious freedom, I think, and by mentioning issues like abortion, assisted suicide, and same-sex marriage, he shows he is aware that the problem is chronic. Religious freedom might be the paradigmatic case, since it concerns the question of fundamental authority, but it also indicates a problem in the whole.
And finally, precisely if this is so—if the rise of judicial supremacy really has undercut political liberty—then it seems imperative to suggest a restorative. Here, I think, the question of religious liberty is particularly apt to be helpful, and Smith indicates a way to respond in his suggestive distinction between justice and jurisdiction in his epilogue. To be sure, the whole issue deserves fuller treatment than an epilogue can handle, much less a book review, but it is worth noting that in the matter of the First Amendment’s no establishment clause, much of the jurisprudence rests upon the Court’s creation in the 1960s of a special category of standing that is practically restricted to such complaints. Only on the theory that the courts have become general councils of revision to oversee the acceptability of all law rather than judicial bodies concerned to settle individual claims and vindicate individual rights under law is such a device warranted. Unless judges are reminded of their core function—or rather, reminded that their core function is not to monitor the people’s law making but to protect people’s rights at law—there will be no end to judicial usurpation. The disputes surrounding religious liberty supply a good place to start.
To repeat, these suggestions are meant to push Steven Smith a little further in the direction he is already going, and I suppose he would reply that his purpose in writing was not to provide another grand scheme but, as I indicated above, to initiate a conversation. If you are a secularist, call that intention humane; if a providentialist, call it charitable. Either way, The Rise and Decline of American Religious Freedom is a book worth reading as a spur to further thought and conversation, and perhaps as a spur to whatever action it will take to see that religious liberty and political freedom are not lost, or if lost, recovered.
Professor James R. Stoner, Jr. (Ph.D., Harvard University, 1987) is the author of Common-Law Liberty: Rethinking American Constitutionalism (Kansas, 2003) and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992), and is currently working on a project tentatively titled “Resisting Judicial Supremacy,” with Richard Morgan of Bowdoin College. He has taught at LSU since 1988 and has chaired the Department of Political Science since 2007. This essay was originally published in July 2014 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.