The New Book On Religious Freedom That Defines Religion Down

A distinguished historian of the American founding sees religion as a matter of individual belief rather than communal obligation.

Oxford University Press.

Oxford University Press.

Observation
Sept. 3 2020
About the author

Jeremy Rozansky is a lawyer in Portland, Oregon. He recently completed a clerkship with Judge Diarmuid F. O’Scannlain, United States Court of Appeals for the Ninth Circuit. The views expressed here are wholly his own.

This past term, in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court took up the question of whether the so-called “ministerial exception” applies to teachers of religion at parochial schools. That constitutional doctrine allows for religious organizations to select, supervise, and remove religious leaders—“ministers”—without interference from civil authorities. The teachers at issue in this particular case were not officially reverends, priests, nuns, or rabbis, so the court had to decide whether the exception applied to them even though they lacked formal ordination. In the end, the court ruled that the exception applies. The court reasoned that what ultimately matters under the Free Exercise Clause of the First Amendment of the Constitution is not the religious-school employee’s title or credential, but what the employee does. A person is a “minister” if they lead the organization, conduct worship services or other important rituals, or serve as a “messenger or teacher of the faith.”

In other words, the Constitution protects the women and men who strengthen the faith of Americans. What’s notable about Justice Alito’s opinion for a seven-justice majority in Our Lady of Guadalupe School v. Morrissey-Berru is that it did not rely solely on constitutional explication or on founding-era history, as one might expect from the court. Instead, to understand the reach of the constitutional protection, Alito wrote about religious pluralism today, taking stock of the “rich diversity” of contemporary American life. While Catholics, Protestants, Jews, Muslims, Mormons, and Seventh-Day Adventists—to name the religions Alito specifically examined—differ in the titles of their ministers and in their organizational structures, they all share a foundational commitment to religious instruction. The implication of Alito’s brief survey was that a strict and legally formalist rendering of the ministerial exception—pertaining only to those officially ordained—would not do justice to the reality of American religious pluralism.

Alito’s jurisprudence is thus a response to the amazing religious diversity of contemporary America. It turns out that the vital tension between the theory and practice of American religion has in fact forged a great deal of First Amendment doctrine. That is the argument that the Stanford historian Jack Rakove advances in Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion. In the book, he attempts to wrest the Free Exercise Clause away from the lawyers and their vocational focus on language and logic, and offers instead an intellectual history of American religious liberty that explains how its evolutions and quandaries are the product of historical circumstance. His project has enormous consequences for American Catholics and Muslims, although perhaps no group is more affected by the questions raised in this study than American Jews.

 

To set up by way of contrast this distinctive American habit of mind, Rakove begins with the rise of religious toleration in Europe. There, toleration developed as a moral ideal in response to centuries of violent religious war. The Thirty Years’ War and the English Civil War proved to philosophers like John Locke that the costs of maintaining state-imposed religious conformity were too high. And so, in his writing on the subject, Locke sought to “distinguish exactly the business of civil government from that of religion.” His case for toleration has a strong Protestant character, relying on the premise that religion depends on inward persuasion and conviction that could never be coerced by external authorities. The civil magistrate might force you to do something, but he could never compel you to believe it.

In Locke’s telling, individuals owe God a duty to worship Him in the way that is consistent with their own conscience. Civic government “hath nothing to do with the world to come,” but it does have domain over worldly affairs: “life, liberty, health, and indolency of body, and the possession of outward things, such as money, lands, houses, furniture, and the like.” As the constitutional scholar Walter Berns once put it, under Lockean toleration, “one renders unto Caesar whatever Caesar demands and to God whatever Caesar permits.”

Although some leading Americans came to share Locke’s view, the American tradition of religious liberty had a different wellspring than regret over the religious wars of Europe. The radical Protestant dissenters who settled New England emphasized the theological experience of conversion—being born again. Every individual, in each generation, was obliged to search his or her conscience for saving faith. Over time, the seeds of conscience planted in those austere colonial settlements would bear much more individualistic fruit, and Americans began to believe that each woman and man could experience personal salvation and even choose his or her own religious devotion. This attitude unleashed and was in turn bolstered by the spiritual competition of the First Great Awakening in the 1730s and 1740s.

It was primarily against this homegrown backdrop that Thomas Jefferson and James Madison developed an American legal regime of religious liberty. It took a whole Congress and the several states to debate, craft, and ratify the First Amendment, but Jefferson’s and then Madison’s contributions were profound, and Rakove credits their views as “the advanced edge of American thinking.”

When it comes to Madison, there are two strands in his thinking that we need to disentangle. He believed that the human duty to determine what “homage” the Creator deems “acceptable” precedes the claims of civil society, “both in order of time and in degree of obligation.” Religious duties, in other words, are more fundamental than political ones, which means that they justify a legal regime of religious exemptions and accommodations.

But Rakove sets that reading aside and instead focuses on a different strand in Madison’s thought that does not require an exemption from general law. Reminiscent of the way that Locke had conceived of an inviolable conscience, Madison also considered religion a “matter of opinion” that belongs to the private conscience of each person.

Let us pause to observe an important consequence of Rakove’s interpretation, because there is evidence for each of these currents in Madison’s thought. Religious obligations are fundamental and precede civil law. At the same time, religious beliefs flow from individual conscience and, as matters of belief, are untouched by civil law.

This means that, in the infrastructure of America religious liberty, quite a lot depends on which strand of Madison’s thinking on the subject is emphasized.

In emphasizing religion as private, individual conscience, Rakove’s Madison argues that close ties between religion and government would harm them both. Government involvement would pervert the means of salvation and empowered clerics would be unlikely to be guardians of liberty. Hence Madison championed the Free Exercise Clause, which does not merely protect religion from Congress but also teaches free citizens to respect that others have come to view spiritual matters in their own way. “By making the free expression of religion a civic norm,” Rakove provocatively suggests, “citizens and denominations would grow more enlightened, more tolerant in their dealings with each other, and less inclined to use legal mechanisms to advance their sectarian concerns and interests.”

But the architects of the new nation also saw that the tolerance for individual faith would need to be balanced by unifying moral commitments that would be called upon to form a shared American culture. The concern that morality could not “prevail in exclusion of religious principle,” as George Washington put it, led to the creation of what Rakove calls a diffuse “Protestant moral establishment.” Over Madison and Jefferson’s objections, the Protestant moral establishment closed post offices on Sundays, taught the King James Version of the Bible in schools, and promoted temperance.

 

And it is here, in reaction to Madison’s science of faction as the safeguard of liberty, that the practice of American religion confronts the theory of American pluralism. For throughout the 19th century, the Protestant moral establishment was challenged by the growth of non-Protestant religions, particularly Catholicism (through immigration from Europe) and Mormonism (through the birth of the Mormon polity in Utah). Rakove commends the Madisonian approach of civic neutrality taken by several jurists during the period. In Board of Education v. Minor (1872), the Ohio Supreme Court overturned a lower-court decision that had required Bible instruction in public schools in order to promote the “moral sense” of the community. The Ohio Supreme Court instead held that republican principles guaranteed “free conflict of opinions as to things divine” and “masterly inactivity on the part of the state.” By not requiring daily teachings from Protestant translations of the Bible, the Ohio Supreme Court removed one of its Catholic citizens’ objections to public schooling. But the need to strengthen some shared moral framework would continue to assert itself, as when the United States Supreme Court ruled in Reynolds v. United States (1879) that Congress could prohibit polygamy in the territories, which included Utah. The Supreme Court rejected the idea that any exemption was owed under the First Amendment, stating that religious exemptions would “permit every citizen to become a law unto himself.”

As Rakove further recounts, this vital tension continued to shape constitutional doctrine into the 20th century. In several landmark mid-century cases, the Supreme Court’s tendency to see religion as a species of conscience prevailed, and it began to treat religious exercise as just another species of free expression, protected under the banner of the Court’s broad conception of freedom of speech.

This meant that when it later swung the other way and reasserted a more fundamental understanding of religious obligation, the exemptions and accommodations debate experienced doctrinal whiplash. While in the latter half of the century the Court held that the Free Exercise Clause required that religious believers be exempted from general laws under certain conditions, that regime was surprisingly jettisoned in Employment Division v. Smith (1990) before being quickly reestablished (at least in part) by Congress with the passage of the Religious Freedom Restoration Act (1993).

In recent years, the exemption question has involved scenarios in which genuine religious exercise harms third parties: employees of evangelical businesses whose health insurance does not cover abortifacients and traditionalist bakers and florists whose refusal to participate in same-sex weddings offends the soliciting couples. The result, as Rakove astutely notes, is that the religious marketplace is no longer chiefly characterized by several competing sects. Instead we have a binary conflict between the “zealous enemies of sin” and the “egalitarian opponents of bigotry.”

Rakove suggests a formula for resolving these debates, a formula he calls “Madison’s razor,” hearkening back to his individualistic interpretation of Madison. The formula, in the end, amounts to an unalloyed victory for the egalitarians. Madison’s razor comprises two principles. First, the more we treat religion as a matter of private belief and voluntary association, and the more we appreciate it as a true source of constitutional privacy, the better off we will be. Second, the more we allow the spheres of church and state to overlap, and the more we lower Jefferson’s proverbial wall of separation between them, the greater danger we run of viewing religion as one more sordid, corrupt interest.

In other words, in the name of a radically individualistic notion of religion as private belief, the solution is to narrow the Free Exercise Clause’s protection and raise up the Establishment Clause’s prohibition. Rakove thus has no truck with religious exemptions. In his view, it is a mistake to regard an employer’s objection to paying for an employee’s abortifacients as protected religious exercise. Such a regime would cause one person to “suffer for someone else’s theology,” a result contrary to “the radical devolution of spiritual autonomy,” which he calls “the founding ideal of the American conception of free exercise.”

 

Rakove’s short book demonstrates that our non-legal understanding of religion is the fulcrum of our legal free-exercise rights. Madison wrote that each person’s religious duty to God “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Because such duties precede civil society, they cannot be abridged by civil society. Rakove concludes that religious exemptions are unwarranted because he conceives of any pre-political religious duties as involving only inward conscience. He cleverly glosses the text of the First Amendment to read not “free exercise of religion”—“exercise” was defined at the time of the founding to mean “practice”—but to read as the “free exercise of personal conscience,” implying that the right involves but a flexing of inward attitudes.

If, however, we consider our pre-civic religious duties to reach further than faith or conscience, if we regard them as commanding worldly acts of righteousness and the separation of the sacred and the profane in daily life, if we understand religion to command honoring parents, acts of kindness, hospitality to strangers, visiting the sick, and so on, then civil law must accede not only to private thoughts and worship but to the free exercise of religion.

In one of the most revealing passages of the book, Rakove claims that his “deeper argument”—the “radical significance of the free exercise of religion” teased on the front cover—is that “[n]o other right placed as great a value on the moral autonomy of individuals.” He therefore calls the Free Exercise Clause the point of departure for the modern recognition of an overarching right to privacy, a constitutional doctrine that has, ironically, undergirded the Supreme Court decisions most resented by so many contemporary religious practitioners.

Rakove can paint religion as a prototype of expressive individualism because he considers religious freedom to be the freedom to believe and do what one wants. Conspicuously missing here are the words chosen by James Madison to describe religious exercise: duty and obligation. As Madison understood, religious freedom is not a freedom to do what one wants, to express the authentic self, to be radically autonomous; it is a freedom to do what one must.

Moreover, these religious obligations are conceived, interpreted, adjudicated, taught, and transmitted by and within communities. In a startling passage, Locke wrote that “nobody is born a member of any Church, otherwise the religion of parents would descend unto children” like property, and “nothing can be imagined more absurd” than that. Yet every Jewish parent who brings his or her eight-day-old son into the Covenant of Abraham testifies to the contrary. For the vast bulk of religious people in our pluralist nation, religious obligations are in every practical sense unchosen.

Our social contract does not therefore look like a pact that unites otherwise free-floating individuals. As the philosopher David Novak has suggested, the national social contract is more like “an ongoing agreement as to what is necessary for different cultures justly and peacefully to transact with one another in common social space.”

Of course, this task is complicated, more complicated than “Madison’s razor.” If we regard religion as so thin that it will not be a cause for conflict in the life of a free, pluralist community, then the religious person need not give up anything in exchange for the protections of civic life. By defining religion down, Madison’s razor unrealistically negates the possibility of conflict and compromise. Once religion is understood to be more demanding, one must admit that the communities and cultures that comprise society will sometimes be at odds and—as recent controversies demonstrate again and again—no rule, exemption, or accommodation will satisfy everyone.

The achievement of Beyond Liberty, Beyond Conscience is its attention to the historically contingent development of our concepts of what the Free Exercise Clause protects, its account of how the idea of religious freedom has depended on the kinds of religious communities that make up the republic. And the book gives testament to the salutary and energizing tension between the theory and practice of American religious pluralism.

But Rakove’s closing plea is for the application of a purified and thin conception of religious liberty with little heed to the many ideas of religious obligation that actually populate our pluralist society. Instead of attempting to accommodate religious factions with all their particulars, he seeks to establish a partial and contested vision of religion—one that simply cannot comprehend all that is demanded from traditional Catholics, Muslims, and Jews. As Madison himself put it, Rakove’s proposal is just the latest “vain attempt of the secular arm to extinguish religious discord.”

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More about: American law, History & Ideas, Religious Freedom