Religious liberty, the subject of Richard Samuelson’s powerful essay in Mosaic, seems fated to be a central point of contention in the 21st century. This is self-evidently the case in the international arena, where many of the world’s most intractable conflicts involve believers of various stripes and the nations and communities within which their respective faiths are rooted. Those conflicts take a particularly heavy toll upon the liberties, not to speak of the very existence, of vulnerable religious and ethnic minorities.
In Europe, the ability of Jews to perform the traditional rite of male circumcision has come up against intense legal and political pressure in ways suggesting the entering wedge of a more comprehensive anti-Jewish sentiment: the return of the repressed, one might say. In Iraq, Syria, and Egypt, age-old Christian communities are suddenly faced with extinction at the hands of Islamist militants. In India, the enduring and often violent enmities between majority Hindus and minority Muslims have been rendered more volatile and dangerous by the political rise of Hindu nationalism. In Turkey and Saudi Arabia, the very thought of any official recognition for religious pluralism is inconceivable. Meanwhile, in some parts of the West—including our own, as Samuelson details—the preaching of traditional Christian moral teachings about human sexuality and marriage has been labeled a human-rights violation and proscribed by courts.
It seems that the respectful tolerance needed to underwrite a free, robust, and uncoerced expression of divergent religious beliefs is becoming a rarer commodity. In some places the cause of the trouble is militant religion; in others, aggressive anti-religion. Caught between them, the generous ideal of religious freedom, with its emphasis upon the integrity and dignity of every individual conscience, finds itself vulnerable where not altogether abandoned.
That is precisely why the achievement of a high degree of religious liberty in the United States has always been such a cause for celebration and gratitude. In both theory and practice, religious liberty is a fragile and difficult idea, requiring us to hold in tension two conflicting ideals: first, the right to order one’s life according to the ultimate truth as one understands it; second, the obligation to tolerate those who understand ultimate things differently and protect their right to order their lives differently.
It is sometimes thought that religious liberty can flourish only where the truth claims of religion are seen as relatively weak and secondary, and the stakes are correspondingly lowered. But in America, as Alexis de Tocqueville was among the earliest to observe, religious belief and practice have generally flourished, in remarkably diverse and inventive forms, because they are voluntary and have not had to rely on a religious establishment to protect them. And while historically the American record regarding religious liberty has been far from perfect—among the many exceptions to the general rule have been Quakers, Catholics, Mormons, Jews, and other religious minorities—the story has on the whole been a positive and inspiring one and, moreover, one of steady expansion and improvement. The New England Puritans thought of America as a New Zion; so, too, have a great many American Jews, who have found here a haven of the kind that the rest of the world regularly seemed intent upon denying them.
It was Tocqueville who proclaimed that religion was the “first” of America’s political institutions because it “facilitated” the exercise of liberty. In this view, the health of American democratic institutions depends as much on the free and vibrant public presence of the nation’s religious traditions as it does on the constraints placed on religion’s ability to exercise direct political power or operate as an establishment. Both influences are needed. If theocracy of any kind would violate the principle of religious liberty, so would the effort to establish a naked public square, a version of public life in which meaningful public religious expression was completely proscribed. The latter would traduce the cause of pluralism by erecting a counter-establishment of public secularism, in the face of which every alternative faith must withdraw into the realm of private sentiment. The better way is a civil public square that strikes the right equilibrium between an inclusive national ethos and healthy, values-forming mediating institutions.
This view seemed to be triumphant as recently as the late 1980s and the 1990s, years that in retrospect appear markedly more favorable to the public expression of religion than what we are now experiencing. The Clinton administration, backed by near-unanimity from Democrats and Republicans in Congress, supported the wildly popular Religious Freedom Restoration Act of 1993: a corrective, as Samuelson explains, to the perceived overstepping of the Supreme Court in the 1990 case of Employment Division v. Smith. In addition, Clinton’s welfare-reform measures included the principle of “charitable choice,” which established a level playing field for faith-based organizations seeking government contracts for the provision of social-welfare programs. (No longer, for example, would Christian drug-abuse counselors be denied the right to compete for government contracts simply on account of their religious affiliation.)
This balance lasted well into the administration of George W. Bush. Endorsing and expanding what Clinton had begun, Bush established an Office of Faith-Based and Community Initiatives in the White House and showed a religion-friendly disposition in his speeches and policy-making. During the 2008 presidential campaign, Barack Obama similarly indicated a serious engagement with religion and a striking deference to people of faith, openly reaching out to evangelical groups like Sojourners and Call to Renewal.
But that was all a feint. Once in office, Obama brought the era of balance to a decisive end, initiating a push toward official secularism that is perhaps unprecedented in its scope and force.
The concerns expressed by Samuelson are therefore not at all unreasonable or exaggerated. He has ably identified the shift from “free exercise of religion” to mere “freedom of worship,” the illiberal attempt to control and manipulate discourse, and above all, the elevation of the principle of “nondiscrimination” into an all-purpose moral and cultural absolute. He shows how these changes have enervated life on the nation’s campuses, leading to a proliferation of “legally recognized victims,” “bias response teams,” and a general atmosphere of hypersensitivity cravenly supported by university administrators. Most pertinently, he tracks and itemizes the many attempted infringements of the free exercise of religion, mainly Christianity, now being litigated here in the land of the free.
There is an element of patent absurdity in all of this. Can a genuinely liberal or civilized society ever be based on a generalized principle of nondiscrimination, in which all judgments of quality are forbidden, all freedom of association is conditional, and all prejudices and personal affinities are subject to government inspection and correction? Absurd or not, however, the implications for religion could not be starker.
All living religions, Judaism emphatically included, rest on a principle of discrimination, of making evaluative distinctions, of separating the greater from the lesser. That which is holy or consecrated is set apart from that which is not, the sacred is made distinct from the profane, committed believers are distinguished from nonbelievers, and the association of such duly initiated believers is understood as constituting a sacred community, with its own principles of organization. Religious liberty thus requires both freedom of belief and freedom of association, welded together into one thing. In the American context, it also entails what the First Amendment calls “free exercise”: that is, the liberty to structure one’s way of life, both in private and in public, around the precepts and practices of one’s moral community.
To put it in a slightly different way, what is going on amounts to an assault on American pluralism: a fundamental feature of our constitutional and social makeup. Pluralism seeks to underwrite the widest possible latitude for a variety of moral communities. That is hardly to deny that we have places of national piety and veneration—think of Arlington National Cemetery and the Lincoln Memorial. These institutions embody and express the nation’s civil religion. But it has long been understood that the persistence of regional, religious, ethnic, and other differences, so long as they are not invidious or destructive in character, or dependent upon unjust or illegal segregation or restriction, is something to be desired and nurtured. Indeed, the American civil religion exists to support the strength and freedom of smaller moral communities that stand apart from it.
In this light, religious freedom is not only an individual liberty but also a corporate liberty, applied to and inherent in groups and protective of their integrity and self-governance. It is the liberty of synagogues, churches, denominations, religious schools and colleges, and other religious institutions and communities to define what they are and what they are not, to control the meaning and terms of their membership, and to exercise their faith in through the way they choose to raise their children and order their community life.
There are, of course, limits to this autonomy, as to all liberties and of pluralism. Religious liberty is not a carte blanche, established once and for all by the invocation of some pristine abstract principle. But its essential place in the life of society should set the bar very high for any government action that would have the effect of burdening its free exercise.
That respect and that high bar have generally been affirmed by the federal courts and Congress—so far. But we seem to have entered a new era, in which even fundamental rights guaranteed under the First Amendment appear to be held of little account, and the road ahead appears perilous.
These developments will present some unique challenges for American Jews. For one thing, if the principle of religious liberty has meant a great deal to them in the past, so has the principle of nondiscrimination. As the one is curtailed and the other expanded, they may now be forced to choose between them, and for precisely the reason that Leo Strauss gave in the 1962 lecture cited by Samuelson. The metastasis of nondiscrimination, Strauss predicted, would produce the death of liberalism, and therefore the end of practicing Jews’ ability to be free to be Jews in America.
What seemed an abstract argument when Strauss formulated it over 50 years ago now seems all too concrete. In this sense, the pressing of a militant secularist agenda that stifles religious liberty could lead to even sharper and more bitter divisions among American Jews than those that already exist.
For those whose sense of their Jewish identity is fundamentally grounded in traditional religious beliefs and practices, the matter will appear in much the same light as it does to Roman Catholic or Orthodox or evangelical Christians. They will feel strongly motivated to fight hard to preserve the integrity and autonomy of their institutions and their way of life. But for liberal secular Jews whose sense of Jewish identity is often intense but largely ethnic, cultural, or historical in character, and largely divorced from Judaism per se, the reaction may be entirely different. For them, the illiberal liberalism of the ACLU and the golden principle of nondiscrimination are likely to be far more compelling, and infringements upon religious free exercise, unless motivated by blatant anti-Semitism, may not seem particularly offensive.
Nor can the Zionist consensus that once held the diverse Jewish community together be counted on to continue playing that role. Anti-Zionism has become one of the staple elements of the same political left that is pressing the nondiscrimination case against religious liberty. The Obama administration’s success in producing “daylight” between Israel and the United States, and its open of support of Iran’s regional ambitions, have not incurred any significant loss of American Jewish support for the liberal agenda.
Might this yet change? In the early 1930s, even so universally-minded a thinker as Hannah Arendt, according to Elisabeth Young-Bruehl’s biography, came to embrace the Jewish cause. “When one is attacked as a Jew,” she understood, “one must defend oneself as a Jew. Not as a German, not as a world-citizen, not as an upholder of the Rights of Man.” Such words read like a blast of common sense, an affirmation of the simple fact that our human particularity, and the human bonds that sustain it, have a powerful claim upon us that no decent government should transgress and no abstract principle—least of all one as inhuman as overweening nondiscrimination—should pretend to countermand. In our own day, one cannot but hope that such blasts of common sense and common sentiment may yet impart new life to Jewish bonds that have atrophied.
To conclude by reiterating the general point: if religious freedom is the first freedom, as Toqueville stressed, that is because it is grounded in the dignity and integrity of the human person. This was the central assumption behind James Madison’s great “Memorial and Remonstrance against Religious Assessments,” in which the founder argued that it is “the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.” This is, or should be, a universal freedom. The great questions of human existence are not the concern of the state, let alone the exclusive province of theology professors and accredited savants, but belong to us all, individually and in whatever associations we form with one another. Any good society, committed to the flourishing of its members, should recognize and encourage and support that search; it certainly has no business curtailing it.