“I esteem . . . Toleration to be the chief Characteristical Mark of the True Church.”
It is fitting that the most confused and confusing legal tradition in America today is First Amendment case law regarding religious liberty. It is confusing because at the Founding a young nation composed principally of strongly religious people was induced to believe that its nascent political and legal traditions were invented and instituted in order to secure, protect, and even promote the tenets of the Christianity in which it almost universally believed. Supreme Court adjudication has henceforth been a long-sustained struggle between those who take their measure from popular sentiment (especially at the time of the Founding) and those who understand the actual implications of the political theory manifested in the United States Constitution and the legal tradition that flows from it.
Terry Eastland has thus done a service to scholars of church-state relations by bringing together 25 of the most important U.S. Supreme Court cases on the religion clauses of the First Amendment horn 1940 to 1992. He also supplies valuable footnotes where needed for clarification and includes contemporary commentary after 15 of the cases. Finally, the last part of the book includes interpretive articles by three of today’s most important commentators on First Amendment jurisprudence: Mary Ann Glendon, Michael J. Sandel, and Michael W. McConnell. Sandel’s essay is an especially valuable commentary on the current state of the Supreme Court’s understanding of religion.
As Eastland explains in the excellent introduction, during the first 150 years or so of life under the Bill of Rights, the federal courts had little to say about the relation of church to state, since the individual states had not yet been “incorporated” under the Bill of Rights through the 14th Amendment. Not until Cantwell v. Connecticut (1940) did the Supreme Court declare that “the fundamental concept of liberty embodied in that Amendment”—namely due process of law—”embraces the liberties guaranteed by the First Amendment.”
One can immediately see why Supreme Court jurisprudence is such a muddle. Regardless of how one interprets the First Amendment, no one can claim that the Founders ever intended it to apply to the individual states or to individual persons or religions (much as James Madison would have liked it to). Thus, a legal tenet meant solely to apply to the federal government and framed with that unique property in mind is now applied to situations that it was never intended to address. Even if one believes that incorporation is a sound doctrine, it still cannot be denied that the First Amendment was written for a different purpose. It is a square peg being pounded into a round hole.
This is especially problematic for those who hold that the First Amendment was to allow a great range of legislative freedom regarding religious liberty for the several states under the principle of federalism, which, when applied to particular cases, severely restricts religious liberty. That is, the First Amendment itself is a poor guarantor of religious freedom when applied to persons and religious groups. The First Amendment was meant to allow states to legislate as they saw fit, and to protect the federal government from the contamination of religious establishment. To take away the former leaves the courts and Congress to apply the latter in a far more sweeping and aggressive manner. Under Cantwell, for a state to support religion is for the federal government to establish religion.
Therefore, rather than as incorporating the states under the First Amendment, Cantwell ought to be seen as repealing the First Amendment. Through incorporation, the Supreme Court forces Congress to do something that the First Amendment explicitly forbids, namely to make laws “respecting an establishment of religion” and “prohibiting the free exercise thereof.” And Cantwell takes rights away from the states that the First Amendment was written explicitly to protect, such as the right to establish (or not) religion in any way they chose.
So, while Mary Ann Glendon holds out hope that the tradition is not really as confusing as it seems, nonetheless, “the Supreme Court’s religion-clause case law has reached the state where it is described on all sides, and even by the judges themselves, as hopelessly confused, inconsistent and incoherent.” Glendon believes that the confusion is caused less by the possibility of making sense out of the First Amendment than by the inadequate moral, political, and social theory that informs the judgment of Supreme Court justices as they decide religion-clause cases.
In short, whether from the right or the left, the moral anthropology informing legal and political thought in America has lately been one of extreme individualism and moral pluralism, in which communities such as family, church, and “other groups of memory and mutual aid” are seen not as instruments of authentic freedom, but impediments to it. Rather than understanding human personhood in terms of these salutary traditions and contexts—most especially religious ones—it is reduced to radically atomistic individualism.
Glendon is certainly correct that this is the current state of affairs, but she fails to ask whether its very cause may be the political and legal institutions that we in America invest with an almost sacred status. She excuses the Founders, since they had no way of knowing that “the dense texture of 18th century American society, with its family farms and businesses, its tight-knit communities, and its churches firmly woven in the social fabric” would all erode to the extent that they have. Again, this is probably correct, as are her reminders that the Founders never “underestimated the importance of the [religious] institutions whose durability they assumed” and that “it seems not to have occurred to our early leaders that there might come a time when the society’s ability to produce virtuous citizens and statesmen would falter.” But what if the legal and political institutions they established are the very instruments of this faltering? While we might be able to excuse the Founders’ inability to prophesy the future moral failure of America, we might not be able to excuse them for erecting the structures that have caused this decline.
American history embodies two concepts. The first is that American society is deeply formed by religion—specifically Christianity—which is seen as the necessary condition of a well-ordered life; the other conscientiously denies the efficacy of the influence of religion upon—and in fact sees it as an impediment to—a well-ordered political society. The concepts that inform the political institutions of America—and that suggest the nature of our political culture—may be ones which ineluctably erode the belief we once possessed that we are not atomistic individuals but rather religiously formed, “embedded” persons. Is the mix of liberal individualism and a certain form of sympathetically idiomatic Protestantism perhaps a deadly one for a well-ordered society?
The confusion of which Glendon writes is by no means restricted to judicial opinions. Many, if not most, legal and political theorists wind up in the same sort of confused mess that American case law is in. For example, while Stephen Carter’s The Culture of Disbelief is a painstakingly honest book, he has trouble avoiding the same pitfalls that have led to the incoherence of Supreme Court adjudication. Though he demonstrates a sincere effort to preserve something like authentic religious liberty, grounded in and at the service of religious truth. Carter is too much a part of a political culture that disdains such retrograde concepts as exclusive religious truth. He does not succumb easily, and his book is admirable for its effort to resist, but The Culture of Disbelief is very much a product of the culture it purports to criticize. Carter wants American law and politics to respect faith, but it is the faith of a liberal democrat who happens to attend an Episcopal church.
The giveaway is that Carter almost never uses the word “religion” in the singular. It is always “the religions do” this and “the religions are” that. This is because his book is a call not to protect religious liberty but to preserve religious pluralism. That is. Carter’s heroes are not those who want the state to leave them alone so that they can practice their exclusively true religion, but rather those who want the state to establish and maintain a state of affairs in which such people will not offend anyone. As Philip Turner, Dean of the Yale Divinity School, says in a jacket blurb, “In Carter the American people have a much needed advocate for the rapidly disappearing public virtues of civility and tolerance.” Thus, despite his own repeated disclaimers, religious liberty is at the service of religious pluralism, not vice versa.
It is Carter’s disclaimers that make his book as confused and confusing as the tangled church-state relationship on which he is attempting to comment. Carter wants to maintain that his own religion—Episcopalian Christianity—is true (sort of), but he would never be so offensive as to suggest that this implies that, say. Buddhism is false. Moreover, on the one hand he says that “the religions” have a legitimate role in criticizing the political order, while on the other he denies that religions which might create disorder or “division” are legitimate. Division equals hatred, as in: “Christ’s message, after all, is one of love and inclusion, not of hatred and division.” Oh?
Carter’s understanding of “the religions” is informed more by John Locke than by Jesus Christ.
The Toleration of those that differ from others in Matters of Religion, is so agreeable to the Gospel of Jesus Christ, and to the genuine Reason of Mankind, that it seems monstrous for Men to be so blind, as not to perceive the Necessity and Advantage of it, in so clear a light.
Do not think that I came to bring peace on the earth; I did not come to bring peace, but a sword. For I came to set a man against his father, and a daughter against her mother, and a daughter-in-law against her mother-in-law.
Blessed are you when men hate you.
If anyone comes to Me, and does not hate his own father and mother and wife and children and brothers and sisters, yes, even his own life, he cannot be My disciple.
Now the words of Jesus are strong and difficult—and they may even be false—but they cannot be seen in communion with Locke’s. Indeed, they explicitly contradict Locke’s notions, and attempts such as Carter’s to reconcile them almost always affirm the religion of Locke and not of Jesus.
This is manifest in at least three ways. First, religion for Carter is not a statement of transcendent truth that makes a claim of obligation on all men. Rather, “religions” represent individual preferences, which must be protected under the guise of the rights of autonomous private conscience. Carter sometimes .seems to be aware of the insufficiency of this idea, but he ultimately cannot escape it himself. For instance, he complains that “for Americans to take their religions [sic] seriously, to treat them as ordained rather than chosen, is to risk assignment to the lunatic fringe.” But just one page earlier he endorses the idea of choice, which is supposed to be a sign of sanity; “American ideology cherishes religion, as it does all matters of private conscience, which is why we justly celebrate a strong tradition against state interference with private religious choice.” And again, later in the book: “My own view is that [religious] exclusivity . . . betrays a lack of faith in God’s charity, but everyone is entitled to choose a religious belief.”
Carter never mentions, nor even seems aware of, Michael Sandel’s outstanding essay “Freedom of Conscience or Freedom of Choice?” first published in 1990 and reprinted in Eastland’s Religious Liberty in the Supreme Court. Sandel argues that modern Supreme Court jurisprudence does not serve religious liberty, but rather individualism and religious pluralism. Because the Court assumes that religion is something one chooses from a position of radical autonomy, it cannot take into account the needs of those persons who feel that they are constrained by religious commitments that they did not choose. The Court assumes an “image of the self as free and independent, unencumbered by aims and attachments it does not choose for itself.” Any such encumbrance is a violation of human freedom, and so any religion that assumes to oblige belief on all men is, in the opinion of Justice John Paul Stevens in Wallace v. Jaffree, unworthy of respect by the Court.
Sandel believes that such an opinion reveals not respect for religion “but respect for the self whose religion it is.” The man who feels constrained by obligations and commitments he has not chosen is therefore not due equal respect by the Court since his religious opinions are illiberal; they strike at the very foundation of the American ideal of private, voluntary conscience. But, says Sandel, this “liberal conception of the person ill equips the Court to secure religious liberty for those who regard themselves as claimed by religious commitments they have not chosen.” The Court is endorsing religious pluralism, not protecting religious freedom; those who are not convinced that government ought to make such an endorsement are excluded from consideration.
Thus the second manifestation of Stephen Carter’s Lockean religion is his implicit assertion that God is strongly and exclusively on the political side of those who believe that She is a Liberal Democrat. Or, to put it another way, God is the Ultimate Pluralist, reigning in judgment over nonpluralists. So, for instance, when Christians use their symbols “as divisively as they did in Houston” at the 1992 Republican National Convention (Carter gives no examples of this), “presuming to cast their opponents into the outer darkness, I tremble with anger—and, since that decision is not really within the scope of their ecclesiastical authority, I tremble for their souls.” On the other hand (and on the very next page), he remarks that Martin Luther King, Jr., “and other religious leaders showed no reluctance to claim for their positions an ‘exclusive alignment with the Almighty.'” “Nor is there any reason that they should have been reluctant,” says Carter, “provided that they had come in a prayerful way to a sincere belief that they had discovered the will of God.”
Religions, for Carter, should not be protected because one of them might be true, but rather because in their very multiplicity they contribute to the liberal concept of pluralism as an unqualified good. Religions are at the service of the pluralist state, insuring that the divine principle of tolerance be upheld by laws and those who make them. Carter complains that he wants the state to respect, not merely to tolerate, his religion, but only because his religion endorses the state religion of tolerance. It should be respected not because it might be true, but because it gives theological sanction to the religion of pluralism at the heart of the American ethos.
Now, Carter is careful to point out that his moral judgment of the bad Republicans is based upon their political positions, rather than their religious opinions (which they ought to be free to choose). But he fails to see that the political opinions of some religious believers cannot be so easily separated from their religious convictions. Or, perhaps more accurately, he cannot see that some religious convictions do not so neatly and miraculously coincide with liberal democratic political opinions. Carter wants his religion to be respected, but, mirabile dictu, he cannot think of any issue on which it does not endorse liberal democratic politics—from abortion and homosexual “rights” to women’s ordination and prayer in school.
As Carter explains, “the National Council of Churches was surely right that God’s name should not be used ‘to breed intolerance and to divide,'” as it allegedly was at the Republican Convention. “But it was wrong to suggest that any partisan use of God’s name tends to do so.” The N.C.C. erred in its implicit denial “that one party might in fact stand for values that are closer than the other’s to the will of God.” And, of course, the party that comes closest is the one that elevates pluralism to the level of dogma. Carter tries to argue that only the conclusions of the “religious right” ought to be morally condemned, not the fact that they are infused with what he indelicately calls “God-talk.” But of course this makes no sense. If a man’s religion necessarily induces him to make immoral judgments (as all religious conservatives do in Carter’s world), the religion that informs them ought to be condemned as well.
And the opinions and religions that deserve the harshest condemnation are those that do not endorse liberal democracy. For Carter, the purpose of religions is to secure and promote democratic pluralism, and their moral legitimacy is judged accordingly. Religions are in service to the democratic state, and this state, in turn, is good for the right kind of religions. The wrong kind of religions will either have to tough it out in a political culture that condemns them (rightly. Carter thinks) or conform their beliefs to the proper liberal ones. Thus, Roman Catholics may persist if they want in their immoral condemnation of homosexual acts, but the state is legitimate to condemn them for it; “The state has a perfect right to send a message that it is very wrong to discriminate on the basis of sexual orientation.” But how does the state “send a message” other than through legal or political sanction?
Carter wants a robust religion that will condemn some acts of the state, but only those acts that show a flagging commitment to rigorous liberal democratic pluralist morality. “Democracy needs its nose-thumbers, and to speak of the religions as intermediaries is to insist that they play important roles in the proper function of the republic.” But every concrete instance in which “the religions” are applauded for such nose-thumbing is one in which they condemn anything that smacks of “division” or “intolerance”—in short, any that is not so reactionary as to suggest that democratic pluralism might not be an unqualified good.
This leads directly to the third manifestation of Carter’s Lockean religion: the chimerical assertion that American legal and political institutions of religious freedom are designed to protect religion from the state, rather than the state from religion. Now it is probably unarguable that the broadly popular sentiment at the time of the American Founding was that the state ought to protect religious freedom. Nor is it arguable that the First Amendment, as originally envisioned, does not prevent the various states from establishing religion (which Massachusetts did until 1835). Moreover, I prescind from judging the propriety of including the states under the Bill of Rights through the agency of the 14th Amendment. But to claim that the intention of the Constitution of the United States is to protect religion from the state rather than the state from religion is simple legal fiction, and Carter swallows it feathers and all.
In endorsing this fiction Carter first invokes not one of the Founding Fathers but Roger Williams, who died some 100 years before the First Amendment was written. (Carter is either unaware of this or uninterested in informing the reader that he is aware of this; he discusses Williams in a paragraph about “most members of the Founding Generation.”) Certainly Williams’s theory is a rigorous call for the protection of dissenting religion for the sake of religion, but his theory is not that of James Madison or of Thomas Jefferson, both of whom were preoccupied with protecting the state from Williams’s kind of religion rather than in protecting that religion from the state.
Jefferson, for instance, sought to undermine the “monkish ignorance” of traditional religion, and he explicitly said that he hoped the political institutions he helped to erect would eradicate Christianity from America. “I confidently expect,” he wrote in 1822, “that the present generation will see Unitarianism become the general religion of the United States.” He clearly believed that the religious-political institutions of the American Founding were in large part, if not exclusively, the instrument for effecting this conversion.
And Madison was of the opinion that the state needed safeguards against religion since, as he wrote to Jefferson in 1787, “even in its coolest State, [religion] has been much oftener a motive to oppression than a restraint from it.” Of course a cursory reading (which is all Carter gives it) of Madison’s Memorial and Remonstrance Against Religious Assessments and Federalist No. 10 and 51 might leave the impression that Madison is benign toward religion. But one must note why he wanted to encourage the proliferation of many sects: to diffuse their concentrated ability to influence public policy—that is, to protect the state from them. Madison’s hope was that the political institutions of the Founding would contribute to an eventual benign secularism, in which religious orthodoxy would be consigned to its proper place on the lunatic fringe of American society.
In short, Michael McConnell’s essay in the Eastland book could well be describing Madison and Jefferson when it criticizes modern thinkers whose position amounts to “a demand for freedom from religion, not freedom of religion. And the society they would create is one not of religious diversity but of a dull and conformist secularism.” Importantly, McConnell implicitly recognizes that this secularism is not necessarily achieved by direct legislation against religion, but rather by a secular legal concept that gradually crowds out the religious ones that once shaped men’s lives in a more salutary way. As he explains, America’s descent into secularism “most often . . . comes in the form of mores, sometimes reinforced by law, that make it uncomfortable or costly to put one’s religious principles into practice in public.” (McConnell’s analysis, here as elsewhere, is deficient insofar as he exempts the Founders from this charge of aggressive secularism.)
What is even more damaging is that these legal mores—the historical idea of a secular legal culture—have been so powerful that Christians have forgotten the example of a truly countercultural religion, which does not miraculously conform to every principal of enlightened liberal democracy, whether in its Republican or Democratic party forms. Stephen Carter, despite his best intentions, is a living example of just such forgetfulness.
[Religious Liberty in the Supreme Court: Cases That Define the Debate Over Church and State, edited by Terry Eastland (Washington, D.C.: Ethics and Public Policy Center) 527 pp., $29.95]
[The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, by Stephen L. Carter (New York: Basic Books) 328 pp., $25.00]