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Getting Out of Our Grooves — Part 3: Where Does Religious Liberty Come From?

The canonical view of American religious liberty was set out in Justice Hugo Black’s opinion in the Everson case (1947):  A “large proportion” of the “early settlers of this country . . . came from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.”  Religious persecution “shocked the freedom-loving colonials into a feeling of abhorrence,” a feeling, he noted “which found expression in the First Amendment.”  Ultimately, the leadership for our national commitment to religious liberty came from Virginia, since Jefferson’s Bill for Establishing Religion Freedom and the First Amendment “had the same objective and were intended to provide the same protection . . . .”

This classic statement of the Jeffersonian origins of the religion clauses basically says that “ideas have consequences.”  And it’s hard to disagree with that principle in the abstract.  But it is also worth looking at some more pragmatic concerns that led Revolutionary America to embrace a greater level of religious freedom.  As discussed in my earlier blog, religious liberty, in addition to being a good idea, can be a useful strategy for governments seeking to expand or consolidate their power.

Scholars have suggested, for example, that the War itself may have had a beneficial trickle down effect on religious liberty.  Most recently, John Ragosta’s Wellspring of Liberty (2010) shows how Virginia’s dissenters, particularly the Baptists and Presbyterians, negotiated for greater religious liberty from the Anglican-dominated state in return for their support of the war effort.

Meanwhile, Charles Hanson’s Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England (1998) shows how events in Massachusetts, where anti-Catholicism had been ingrained for a very long time, led to a “wartime accommodation” of Catholic France.  Hanson’s story touches in part on the oldest endowed university lecture in America, Harvard’s Dudleian Lecture.  Donor Dudley’s carefully drawn will required that, at least once every four years, the distinguished lecturer would be required to address the following topic:  “The detecting and convicting and exposing the idolatry of the Romish Church, their tyranny, usurpations, damnable heresies, fatal errors, abominable superstitions, and other crying wickedness in their high places.”

And so, while New Englanders had blasted the 1774 Quebec Act guarantying Canadian Catholics the “free exercise of religion,” the colonists’ formal alliance with Catholic France in 1788 led to wartime “accommodations,” including far milder Dudleian Lectures during the war years.  Old prejudices tend to die hard, however, and Harvard didn’t look seriously at changing the anti-Catholic focus of the lectures until the end of the 19th century, a move that we may choose to applaud for its liberalness or to criticize for its violation of the principle of upholding donor intent in charitable giving.

Don Drakeman

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Getting Out of Our Grooves — Part II: Islam and Secularization?

We tend to think of countries such as Pakistan as quintessentially religious states.  As Humeira Iqtidar, of Kings College London, writes in her fascinating new book, Secularizing Islamists? (2011), the “increasing prominence of Islamists in Pakistani political space, especially over the last two decades, has crystallized a particular reading of Pakistan past and present . . . . Pakistan, Islam and fundamentalism – the conflation of the three has become an inescapable focus of media portrayals . . . . “

To provide a fuller picture, Professor Iqtidar spent a great deal of time in the relevant communities and had the rare opportunity to interview members of competing activist Islamist groups.  Her description of their competition for members, for power, and for the ability to define correct Islamic practices is remarkably interesting.

In the end, Professor Iqtidar argues that “Islamists are facilitating secularization at a social level even as they oppose secularism as an official policy.”  This is not, she is quick to note, a “strict demarcation of the public realm from the private . . . .”  Rather, the “Islamist insistence on the internal coherence of religious practice, its appropriateness to tackle the challenges of modern life, as well as competition among Islamist groups have led to a broad . . . thinking through of the role of religion in contemporary Muslim life . . . .  Religious practice can no longer be a matter of communal following of norms; it has been changed into a largely individualized decision that must be justified internally, that is, within a subject, and externally, to others around the subject.”

Finally, for those of us who periodically chafe at how some social scientists have superimposed Western European philosophical assumptions and religious categories on not necessarily matching American phenomena, I wanted to stand up and cheer while I was reading Professor Iqtidar’s comments about “universalist claims in social scientific analysis.”  In particular, she writes, “Within much of academic literature secularism continues to have immensely positive normative associations intertwined with a continued assumption of universal application.”  Until quite recently, social science theories “conflated diagnosis with prescription, description with projection.  This becomes particularly problematic in studying societies that are markedly different from the contexts in which there concepts took initial shape.”  No kidding.

Don Drakeman

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Things That Aren’t on Enough Church-State Syllabi: Part III — Federally Funded Evangelism

Colonel Johnson of my last post was not only center stage for the country’s first big law and religion debate, he was also in the middle of the most amazing non-event in American church-state history.  Running short of cash, Johnson turned his Kentucky property into the site of one of the many federally-funded boarding schools where young Native American boys would be “Christianized” and “civilized.”  Every presidential administration from George Washington until the 20th century had some sort of effort to “civilize” the Indians, with James Madison helping to launch the school project.

Johnson partnered with the Baptist General Convention for Missionary Purposes, since the schools were invariably run by missionary organizations.  At one point, the War Department complained that the Kentucky Colonel’s school wasn’t properly recognizing the Sabbath.  After becoming famous for his reports decrying any federal cognizance of religion – especially relating to the Sabbath – what did he do?  He wrote to the Baptist minister running the school to complain about the apologies he had to make in Washington.  Johnson promised that these “irregularities” had been corrected, and the War Department would get the full Christianizing benefits it was paying for.

Isn’t it remarkable that this civilization process endured for a century without any church-state controversy?  Even President Grant, famous for his speech about keeping church and state “forever separate,” awarded control of part of the federal Indian agency to the Society of Friends, saying, “If you can make Quakers out of the Indians it will take the fight out of them.”

Church-state issues didn’t arise until late in the 19th century, when Catholic schools ended up with the lion’s share of the $3.8 million annual budget.  Only then did all the previous Protestant beneficiaries decide to call for an end to funding “sectarian” schools.  An interesting account is in R. Pierce Beaver, Church, State and the American Indians (1966).

It seems to me that we simply can’t talk about 20th century school-aid cases without paying attention to this remarkable history.

Don Drakeman

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Things that Aren’t on Enough Church-State Syllabi — Part II: Never on Sunday?

The first major nationwide battle over church and state didn’t take place when the First Amendment was adopted.  It happened decades later in the 1830s, and it involved the agency employing 75% of the U.S. government’s civilian workforce – the Post Office.  Congress required mail delivery seven days a week, and a coalition of prominent Presbyterian, Congregationalist, Baptist and other churches led the charge to make sure that the nation (in their view, a Christian nation) lived up to its obligations under the 4th Commandment.  Richard John’s beautifully written, Spreading the News (1995), tells the story brilliantly.

The Sabbatarian side can best be found in Jasper Adam’s essay, “On the relation of Christianity to civil governments,” found in Daniel Dreisbach’s excellent, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate (1996):  In light of the “close relation between religion and Government that had always  existed” in the states, Adams concluded that it was “unlikely” that the Founders would “lay aside all connection with Christianity in the general institutions to which they gave birth . . . Though a strong aversion had arisen to the national establishment of any one form of Christianity, none had grown up against a  distinct recognition of Christianity itself as a religion of the nation.”

Colonel (later, Vice President) Richard Johnson chaired the relevant congressional committees, and he released sharply worded, largely anticlerical, reports that don’t really talk about the establishment clause or any other specific part of the Constitution.  The spirit of the Constitution, however, is clearly stated:  “The Constitution regards the general government in no other light than that of a civil institution, wholly destitute of religious authority.”  In a nice bit of irony, the official congressional reports were actually ghostwritten by Johnson’s Washington landlord, a Baptist minister named Obadiah Brown.

Here was the big church-state fight that we sometimes pretend happened when the establishment clause was adopted.  When it finally occurred forty years later, the first round went to the separationists.  But, the Sabbatarians never gave up, and they shut down the Sunday mails for good in 1912.  American’s competing church-state views seem to be so deeply rooted that these kinds of disputes – perhaps like the 20th century school prayer arguments – can literally endure for generations, if not centuries.

Don Drakeman

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Religious Freedom and the Church

We’ve been discussing on this blog the prospects for religious freedom, and factors that may affect those prospects.  Here’s one factor that we haven’t really mentioned, but that I think will be crucial: the church.  The fortunes of religious freedom, I would argue, have always been connected in close if complicated ways to the fortunes of the church.  And this connection is likely to continue.

So ultimately, if the church continues to be (or, some might say, if it becomes) a vibrant and vital institution in society, religious freedom will probably be okay.  Conversely, if the church declines, religious freedom (and, I fear, much else) is likely to go down with it.

Which may seem to be a gloomy observation, because the church may seem to be in poor shape these days.  For one thing, someone might say, “the church” (in the singular) doesn’t exist anymore; instead we have a proliferating multiplicity of independent and sometimes mutually antagonistic churches and faiths.  For another, some of the major churches have been conspicuously afflicted with scandal and internal dissension.  And then there’s the perennial streak of anticlericalism– or suspicion of “organized religion”– that even religious believers often display.  And the increase in the percentage of “nones.”  And . . . .

So then, is the situation hopeless?  I don’t think so, and I’ll offer just two quick observations in support of my customary (long-term) optimism.  First, history doesn’t unfold in linear ways.  So if you take current trends and project forward, you’ll nearly always be wrong.  This is true in particular of the church (and, more generally, of religion).  Who would have predicted in the year 100, or 200, or even 300, that Christianity would become the official religion of the Empire?  Who would have predicted the papal revolution from the midst of the scandalous “dark century” that preceded it?  In 1787, who could have foreseen the flourishing of faiths and churches in new American forms that would unfold in the nineteenth century?  Through the nineteenth century and as late as the 1960s, how many social scientists anticipated that not only Christianity but other faiths would be as vibrant as they are today, problems notwithstanding?

This first observation is in a sense defensive: it counsels believers not to get discouraged by present apparent trends and conditions.  My second observation is a bit more positive.  At least in the view of believers, the fortunes of the church will not be determined by merely human agency anyway.  “The wind (spirit) bloweth where it listeth . . . .”

Nonbelievers will find this to be a fool’s hope, or gamble.  They will think the believers are deluded.  But then again . . . if the believers are deluded, does all of this really matter much?

— Steve Smith

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How Important is Public Support for Religious Freedom?

In a recent post, Mark observes that “the idea that religious freedom has special importance, and merits special protection, is deeply rooted in America’s self-image. (In recent surveys, large majorities even of secular Americans agree that religion has had a good influence on American life). . . . [T]he commitment to religious freedom is part of our social contract and I don’t think it’s going to fade away. If politicians try to make the ‘religious freedom is an anachronism’ argument, I suspect they will fail.”

I haven’t seen the surveys, but I trust that Mark is right about them, and I hope that his political instincts are right as well.  It may well be true that there is broad public support in this country for religious freedom.  This is a heartening observation, not just for its immediate political implications, but because I think this sort of tradition/ identity factor offers another potentially important rationale for religious freedom (and one not entirely unrelated to the badly named “social contract” rationale I suggested last week). The basic idea, I take it, goes something like this: Whether or not religious freedom reflects some sort of universal truth, it’s been central to our own political tradition, and it’s part of our national identity.  So we should respect religious freedom because that’s important to what makes us what we are.

Still, I would register a couple of related doubts, or qualifications.  First, even if support for religious freedom is widespread in this country, I wonder how deep it runs– in terms either of real commitment or of genuine understanding.  The reported frequent opposition to Muslim cultural centers or mosques (even in places other than “Ground Zero,” where maybe the issues are more complicated) gives some reason for doubt.  And although it’s not certain what the ultimate outcome of the controversy will be, it’s also discouraging that so many academics and Americans generally manage to convince themselves that there’s no serious religious freedom issue with the “contraception mandate” on the basis of what strike me as patently flimsy rationalizations.  (Religious institutions aren’t “burdened” (even though they say and think they are), or most Catholics use contraceptives anyway, or the governmental interest is “compelling.”)  It may be that lots of Americans are happy enough to support religious freedom in the abstract, but whenever a specific issue comes along that they care about, or when the burden falls on some person or institution they don’t sympathize with, this support somehow disappears.

The other, related qualification I would make is that I don’t believe we should think of public support as sufficient in lieu of persuasive justifications, as if it were some independent variable.  Public attitudes are based in part on reasons that have been advanced over the years or centuries, and those attitudes can change pretty quickly when plausible reasons can’t be given for them.

–Steve Smith

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Laycock on the Vulnerability of Religious Liberty

Today I (re)read Doug Laycock’s recent essay called “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011).  It’s an important essay, and everyone who reads a blog like this one ought to read it and think seriously about it.

The essay, written before the current controversy about the “contraception mandate,” begins with the sobering observation that  “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.”  And he “worr[ies] that the success story [of American religious liberty] may now be at risk.”

Doug describes the challenge to free exercise as coming from two main sources.  First, the gay rights movement has come to perceive traditional religion as its principal enemy.   And “[i]f traditional religion is the enemy, then it might follow that religious liberty is a bad thing, because it empowers that enemy.  No one says this straight out, at least in public.  But it is a reasonable inference from things that are said, both in public and in private.”  Doug makes it clear, by the way, that he is strongly in favor of gay rights, and he lays approximately equal responsibility on gay rights activists and religious conservatives for their unwillingness to compromise.

Second, there has been an increase in the number and visibility within American society of non-believers– atheists, agnostics, and even people who may have a religious affiliation but little actual belief or religious commitment.  Doug explains how the more active presence of non-believers alters perceptions of religious freedom.  When everyone or nearly everyone was a religious believer of one type or another, religious freedom could be seen as “a sort of mutual non-aggression pact” that was beneficial to everyone.  Today, by contrast, “[m]uch of the nonbelieving minority sees religious liberty as a protection only for believers.  On that view, a universal natural right morphs into a special interest demand . . . .”1

The essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or “much ado about nothing.”  Doug’s expression of concern is especially credible for several reasons.  First, he is not only a leading scholar of religious liberty, but he has also been active in litigating and lobbying for religious liberty.  He knows what he’s talking about, first-hand.  Second, Doug’s support for gay rights and his publicly expressed religious agnosticism should make it more difficult to dismiss his expression of concern as just pretextual or paranoid, as critics may say when Catholic bishops or LDS authorities raise similar concerns.  In addition, I don’t think Doug is temperamentally pessimistic or apocalyptic (as his essay suggests that I may be– heaven forbid!).

One lesson I would draw (and that Doug in fact draws) is that the problem of articulating persuasive justifications for religious freedom is not just an academic exercise (as, for example, Marc’s comment on a post from last week might be taken as suggesting).

— Steve Smith

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Religious Freedom and the Social Contract

This morning I listened to part of a debate from last November between Noah Feldman and Michael McConnell on the question of whether religious freedom should receive special constitutional protection.  Noah’s position, increasingly familiar these days, asserted that the First Amendment’s special commitment to religious freedom derived from theistic premises that are no longer admissible in a liberal political order.  So although religious belief and expression will be protected under freedom of speech etc., there is now no justification for any special commitment to religious freedom.

I’m persuaded by half of this argument– namely, that it is difficult to justify a special commitment to religious freedom on purely secular premises.  (In fact, I’ve been making that argument for years now.)  So if religious freedom is to be justified, it seems that something like the traditional religious arguments will need to do some work.  But how can religious rationales do any work when they have been banned from the political and jurisprudential workplace?  Contra Feldman et. al, I don’t agree that the logic of liberalism necessarily excludes reliance on religious beliefs.  (I also wonder whether this claim is consistent with what Noah has written about the possibilities of democracy in Islamic countries.)  Still, illogical or not, it seems to be a fact that judges and scholars today usually don’t treat religious arguments as admissible.  So, what to do?

Here’s one suggestion– one that could use a lot of elaboration and refinement, but that may be worth raising for consideration.  The proposal, basically, is that special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract.

A quick qualification:  “Social contract” may not be the best metaphor here.  In fact I usually don’t find “social contract” reasoning at all cogent.  Given greater space and ability (both already exceeded in this post), I’d prefer to elaborate the theme more in terms of “consent,” along the lines of Alexander Bickel’s “The Morality of Consent.”  But “social contract” may do for now.  Let me explain.

We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do.  These terms form a sort of “social contract,” but they are not derived from any thought experiment based on a fictional “state of nature” or “pre-political condition” or “original position.”  Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices.  The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution.  Nonetheless, at any given time we have some sense of the terms of this implicit but quite real “social contract.”

So long as government honors the terms, we may feel some obligation to render our support and allegiance.  Conversely, if government disregards or violates the terms of the “contract,” our loyalty is betrayed and our commitment compromised.  We may come to perceive government no longer as representing us, but as an occupying power, and we may thus qualify or withhold our allegiance.

I would suggest (and I’m not sure that scholars like Feldman would disagree) that a special commitment to religious freedom has been a central part of this nation’s social contract.  Nor has that situation changed, I suspect.　 For many religious people, this term is still an essential one; but even nonreligious people might acknowledge that religious freedom has been and continues to be an understood term of the contract.  (So this is not, or not merely, an “originalist” argument.) People like Feldman may think that on modern secular premises, this particular contractual term probably wouldn’t or shouldn’t be adopted today.  Even if they are right, though, that observation does not alter the terms of the contract as it stands and is understood.  And violations of a central term– by the courts, say, . . . or the Administration– will be perceived by those who care about it as a betrayal and a fundamental injustice.

It’s true that people who remain committed to this particular term of the contract– to constitutional respect for religious freedom– may be acting on the basis of traditional theological rationales that many other citizens no longer accept.  In this way, the traditional rationales continue to influence our constitutional order.  But that influence works via citizens’ commitments and the terms of the social contract.  And secular liberals would be ill-advised to insist that every term of the contract must be supported by reasons that all citizens accept, since their own position and premises could be promptly disqualified by such a restriction.  (I know, I know . . . it’s what “reasonable” citizens would accept.  But if blatant question-begging is permitted, what’s the point of these exercises anyway?)

This rationale strikes me as promising in part because it is realistic.  It points to what is actually at stake, today, and it does not rely either on decades-old political decisions or on airy assumptions about what “reasonable” citizens could “in principle” agree to or about imaginary “overlapping consensuses.”  Still, it is a rough, unrefined suggestion.  I wish Bickel were around to improve it.

– Steve Smith

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The Dis-integration of Neutrality

Neutrality has been the central theme in the modern jurisprudence and literature of religious freedom.  Government is supposed to be religiously neutral, neither favoring nor opposing (coercively, materially, or expressively) any particular religion or religion in general.

The ideal has also been subjected to severe criticism.  One criticism asserts that neutrality is impossible: governments will inevitably adopt some religious (or anti-religious) positions and reject others.  Indeed, since religious views differ as to the acceptability of governmental neutrality, the very endorsement of neutrality is already a departure from neutrality.

One response to this sort of criticism is to “spread out”– or to multiply versions of neutrality.  Like the sorcerer’s hapless apprentice, the critic applies the hatchet to what he takes to be the mischievous broom of neutrality only to find that, far from having dispatched the mischief, he is now faced with two– or several, or many– more vigorous instantiations.

Thus, in a recent illuminating article called “Crosses and Culture” (I would provide a link if I knew how), Mark Movsesian discerns in American jurisprudence three versions of neutrality, which he calls “neutrality as non-proselytism,” “neutrality as non- Read more

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Can Religious Freedom be Justified?

Boiled down, the basic argument goes something like this: A special commitment to religious freedom arose in a religious context and is most defensible on religious premises. Today, though, it is widely assumed that political and legal decisions must not be made on religious premises. Consequently, it is difficult today to give a persuasive (admissible) justification for a special commitment to religious freedom.

In one version or another, the argument has become familiar, and it also seems to be becoming increasingly persuasive. More and more scholars gravitate to the basic conclusion: there is no justification for religious freedom as a special right or constitutional commitment. And the Obama Administration’s recent positions on the “ministerial exception” and the “contraception mandate” suggest that the Administration has embraced this conclusion as well.

This last observation is for me reenforced by the strained hypotheses and rationalizations I have heard from intelligent thinkers who were trying hard to be friends both of the Administration and of religious freedom. For ordinary political purposes, I expect that it would be imprudent for a politician to come right out and declare, “First Amendment be damned; I’m opposed to special legal protection for religious freedom.” But viewed from a vantage point within the academy, this position seems utterly unsurprising. Obama was once an academic of sorts, and he reportedly has a few academicians working in his Administration. Why should anyone be surprised if he evolves toward a position– a position that might fairly be labeled “progressive”– that seems increasingly ascendant within the academy?

One question that emerges from these developments, though, is this one: How should people (such as myself) who do still favor a special constitutional commitment to religious freedom go about justifying that commitment? Or should we just concede that no solid justification is available? I expect and hope that these questions will receive increasing attention.

For myself, I’m not confident about the answers to the questions, if there are good answers. To be honest, I never really conceived it as my task to devise justifications for a commitment that, until fairly recently, seemed to enjoy the support of an overwhelming consensus both of scholars and citizens generally. Over the next few days, I may (or may not) try out a few very tentative ideas. Mostly, I hope to hear (in this or other contexts) what other people think.

— Steve Smith