The Bill of Rights occupies a cherished place within American life and jurisprudence, so it comes as a surprise to many (as it did to me back in high school) that the founders added the Bill of Rights only reluctantly to get the Constitution ratified by enough states. It seems that the framers found such cherished guarantees as essentially unnecessary, and so adding them could only create confusion.

But they did add them, likely thinking that, “We think such things are not needed. Obviously, the federal government has no power to regulate speech, assembly, etc. But if you would like it made crystal-clear to alleviate anxiety, fine–here you go.”

The idea of “freedom of religion” in America comes in part from our history and our ideology. In a legal sense, it arises from the 1st Amendment, which reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

What once seemed solid now melts into the ether, as many today question proper limits for freedom of speech and religion. The Religious Freedom Restoration Act (RFRA) passed through Congress in near unanimous fashion back in 1993 (97-3 in the Senate) but might not pass through Congress today. No one has yet made a direct attack against freedom of religion, but recent controversies about sexuality have led to many now sniping at the edges.

As a conservative of some kind, part of me feels the obligation to defend religious liberty and our past traditions. But Steven K. Smith’s book, Foreordained Failure: The Quest for a Principle of Religious Freedom made me rethink everything. His 2018 book Pagans and Christians in the City is bar-none the best book on the legal problem of religion and sexual ethics. This work details how legally and logically, the idea of everyone having complete “freedom of religion” was never attainable and should not be attempted. What I find most impressive is that Smith saw our modern problem coming back in 1993 when he wrote Foreordained Failure, a time when it seemed when America had re-enshrined religious liberty for all time with RFRA. Reading Smith is akin to cold water on your face in the morning–startling, but in the end, you draw a breath and see more clearly.

Onto Smith’s argument . . .

First, we should not see the Establishment Clause as an attempt to formulate a grand principle that could be used to adjudicate the future of the United States. Great differences existed among the states that ratified the Constitution, for example:

• Relatively liberal Pennsylvania had blasphemy laws on the books well into the 19th century.
• In New York, though they had no explicit laws, we find prosecutions for blasphemy into the 19th century as well.
• Many states had Sabbath observance laws, the range of which differed widely. Virginia’s law (proposed by Madison the same day he proposed a religious freedom bill) prohibited disruption of services and unnecessary labor on Sundays. Many New England states went much further.

Many objected to these laws–John Adams thought blasphemy proscriptions inappropriate, for example. Still, while some questioned the laws’ morality or efficacy, none challenged the state’s legal right to have such laws.

The Establishment Clause could never have proclaimed a tight-knit principle about religion for the country because no national consensus existed. Rather, it proclaimed what everyone more or less agreed with–that the federal government could not make laws respecting religion, however much the states could do so.

Even the intellectual founders of the Liberal Order cannot accurately guide us. Smith looks at John Locke, whose A Letter Concerning Toleration outlines much of the modern ideology concerning religious freedom. Locke writes,

The care of souls cannot belong to a civil magistrate, because his power consists in outward force: but true and saving religion consists in inward persuasion of mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by force.

In this sense, Locke’s influence shines clearly–the government cannot regulate religion because it has no power to do so, and whatever power it hopes to exercise will have no real effect anyway. Church and commonwealth are “perfectly distinct, infinitely different from one another.”

To some this could seem like the absolute principle we need for modern times, but Locke also seemingly contradicts himself. For one, he admits that morality comes under the purview of the state, and that morality and religion share beds. Thus, Locke will not tolerate atheists, because their denial of the existence of God undermines public faith and morality, and he denies toleration to Moslems, whose potential loyalty to foreign sultans make them suspect.

The second dilemma . . . Locke’s theory of toleration depends on a view of religion not shared by many religious people (Smith impresses me again and again in this book by catching what many often miss). Locke assumes that:

• Saving faith is a purely voluntary act
• The church’s only business is that of ‘saving souls.’
• He has no concept of the importance of ritual or outward observance or “show.”
• For Locke, truth is where we arrive through independent and careful consideration of evidence, not through our communities, our rituals, etc. These inner beliefs can resist any outside coercion.

Even many secular Americans today would question at least one of these premises–probably #2. Most would criticize a church that sought to have no broader impact on the community. In America’s history we have numerous examples of churches seeking political and social goals that many would approve of, such as the Social Gospel movement in the early 20th century, and the support given to the Civil Rights movement by many churches in the 1960’s. Smith writes,

The object of this discussion is not to determine whether either Locke’s premises or conclusion are sound or not. The point is that Locke’s account of toleration is dependent upon background beliefs about religion, government, society, and human psychology [that many will not agree with].

Whatever practices and precedents we set, we will have to favor a particular set of assumptions. We will have to discriminate, in a sense, as every law discriminates by declaring some things ok and some things not. The problem is that we

• Believe that we are not discriminating, and that we can arrive a place of “neutrality” where all can agree, and we
• Believe that we can find a universal principle to guide us in all circumstances

Smith thinks otherwise. At least in the 18th-19th centuries we left religion to the particular variances of the states, and so avoided our modern problem.

“Religious freedom,” then, will inevitably contain high levels of relativity.

Smith gives an example of a community with four hypothetically different perspectives:

• Religious Voluntarists (traditional Baptists, non-denominationalists, etc.)
• Religious Behaviorists (Catholics, Orthodox, some Lutherans and Presbyterians, perhaps Jews and Moslems as well)
• Secular Optimists–those in favor of the idea of public good and collective action (progressives?)
• Secular Pessimists–those opposed to collective action and the concept of public goods (libertarians).

Imagine a man named John wants to marry 3 wives, believing sincerely that this will aid in the salvation of his soul, and that of his family.

The religious voluntarist would grudgingly support his claim. Nothing should stand between a man and his conscience. The religious behaviorist would deny it–we cannot allow people to willfully harm their souls in such an overtly blatant fashion. The secular optimist might also deny it, based on a belief that polygamy hurts women, but the secular pessimist would likely allow it out of fear of too much state power.

Whatever the decision about John’s desire, some kind of religious belief must be preferred, and others discriminated against. We cannot avoid it, as it is the very essence of law itself to “discriminate.”

As an example, Smith takes the case of Epperson v. Arkansas, which overturned a law which forbade the teaching of evolution in public schools. The court understood that the law had at its root religious objections to evolution, but “the state may not adopt programs which aid or oppose any religion. This prohibition is absolute.” Smith finds the Court’s (basically unanimous) line of reasoning faulty.

First, it creates a syllogistic reasoning that could favor either side. If we cannot aid or oppose any religion, then the law in place aids some religious believers and opposes others. But the same happens if you strike down the law. Either way we must “aid” or “oppose” certain beliefs.

Second, those that favored banning evolution from schools did so not because six day creation was a religious idea, but because they thought six day creation true and evolution false. Many other religious ideas lend support to evolutionary theory. The plaintiffs had no interest in generically “religious” teaching, but in “true” teaching.

Smith pushes against this false idea of neutrality with a quick examination of Grove v. Mead School District, in which the plaintiff objected to the book The Learning Tree in her daughter’s public school curriculum along religious grounds. Judge Canby sided with Mead. He admitted that The Learning Tree challenges certain religious dogmas. But he took pains to point out that a variety of Christian thinkers, among them Paul Tillich, Hans Kung, and Karl Barth, all argue that “honest, and even agonizing doubt, is not incompatible with Christian theism.”

Whatever one thinks of the above quote, those who object to The Learning Tree on religious grounds would likely not respect Tillich and Kung as authorities on the question. Again, the issue is truth, not religion. Grove felt that the inclusion of the book was wrong, not anti-religious. Grove might not have minded a book her daughter had to read that criticized Buddhism or Greek paganism. Judge Canby favored one religion over another–and would have done so no matter how he ruled.

Smith also dismantles the idea of a “common denominator,” a frequent and comfortable refuge for the centrist American. The argument runs, “Some favor religion ‘X,’ some religion ‘Y,’ some favor no religion at all. But we can base jurisprudence on what all sides have “in common.” Smith writes,

In more familiar contexts we would immediately spot the common denominator strategy as fraudulent. Suppose Dad and his daughter have a disagreement about dinner. Daughter proposes: “Let’s just have desert.” Dad suggests it would be better to have a full meal . . . then desert. Daughter reponds: “Dad, we have some disagreements. But there is something we both agree on; we both want desert. Clearly . . . the “neutral” solution is to accept what we agree on. So serve up the desert.”

Dad is not likely to be taken in by this ploy.

Again, as in other examples cited here, for both daughter and Dad, the issue is not desert itself, but the meaning of desert. For the daughter, desert is dinner. For Dad, desert has no meaning without dinner. Smith quotes Michael McConnell, who writes,

If the public school day and all its teaching is strictly secular, the child is likely to learn the lesson that religion is irrelevant to the significant things of this world, or at least that the spiritual realm is radically distinct and separate from the temporal. However intended, that is a lesson about religion. [That curriculum] is not “neutral.”

Smith asks his readers to dismantle false ideas about freedom and neutrality. Much like Patrick Deneen’s Why Liberalism Failed, he has a magnificent diagnosis of the problem. Like Deneen as well, he has no particular path forward. Liberalism–love it or not–we can’t really leave it. We have to make the best of it.

In 1993 those that disagreed with Smith could look around and see the ground holding in a general sense. Now, our religious divisions seem much more obvious. “Secularism,” as Smith points out, will not fix the problem, but probably just deepen the religious divide because it too picks a side. It appears, however, that we have gone through different dominant religions, and need to accept that at certain times, different religions take center stage and receive preference.

We might see it this way:

• 1776-1846 — a frontier, democratized, individualistic Protestantism
• 1846-1918 — a more universalized/nationalized Protestantism
• 1918-68 — A civic faith in work, nation, and gain
• 1968-2008 — Democracy as faith in self-discovery and self-expression
• 2008-? — Something else that has yet to be decided. Who can say, but also –who can deny we are in the midst of another religious upheaval and redefinition?

This is a rather lame attempt to trace our religious history, but I might prefer open recognition of our particular religious faith over continual confusion. As always, religious dissenters will have protections and freedom of conscience and worship. This is a great thing about America. The “losers” need not lose everything. But they will lose something, and we should be prepared.

Dave

*Writing as someone who is Orthodox, reading Locke and other Enlightenment thinkers, it now makes perfect sense to me why early America had a great suspicion of Catholics as detrimental to democracy. They–and the Orthodox–both believe that we know truth not primarily though independent and abstract investigation, but through community, tradition, participation, and ritual–in addition to some notion of “faith,” of course. As Mark Noll wrote, American democratic practice seeks to reduce truth to simple abstract propositions. Our beliefs about liberty eschew tradition and hierarchy, both crucial to Catholic & Orthodox practice.

Catholics, Orthodox, and others like them can “shoehorn” their beliefs and practice into democratic society, but they may not find it naturally compatible with their worldview.