Published July 8, 2014
The Rise and Decline of American Religious Freedom
By Steven D. Smith
Harvard, 240 pages, $39.95
Anyone who wants to understand the perilous condition of religious freedom in America should read this book. In lucid prose, University of San Diego law professor Steven D. Smith contests basic themes of the conventional story of American religious freedom and presents a provocative and compelling counter-narrative. His account culminates in a bracing discussion of the threat posed by the emergent new orthodoxy of secular egalitarianism.
According to the standard story, the framers adopted the First Amendment as a novel experiment in Church-state separation and religious freedom. That story, Smith explains, is doubly wrong. Rather than breaking cleanly with the past, the core concepts of the traditional American understanding of religious freedom developed as a “recovery, adaptation, and consolidation” of “distinctively Christian notions”: the medieval theory of the dual jurisdictions of Church and state, and the Reformation idea of individual conscience as an “inner church.” Further, in the framers’ understanding, the religion clauses of the First Amendment were primarily jurisdictional, not substantive: they made clear that matters of religion remained within the domain of the states. Smith sketches the long and bizarrely convoluted history by which the religion clauses came to be understood as setting forth substantive rights, first against the federal government, and later (under the incorporation doctrine ultimately applied to the Fourteenth Amendment) against the states.
Smith also powerfully argues that the usual narrative, in which the post-World War II and Warren-era Supreme Court rescued the nation from a shameful history of religious persecution and discrimination, has things essentially backwards. He celebrates the “practical genius” of the theoretically inelegant “American settlement,” which recognized specific commitments to separation of Church from state and to freedom of conscience and which saw fit not to resolve the competition between the broader “providentialist” and “secularist” interpretations of those commitments. (Under the providentialist reading, government can acknowledge a dependence on the Creator, and citizens and legislators may act on their religiously informed moral views in making public policy.) When the Supreme Court shattered this settlement by adopting the secularist interpretation, it engendered a destructive “discourse of accusation, anathematization, and abuse,” a discourse that has spread to judicial interventions on related issues like abortion and marriage.
Contrary to common fear-mongering about the supposed theocratic threat from the religious right, Smith cogently sets forth what he sees as the real dangers. First, religious freedom is eroded from within by the “self-subverting logic” of the secularist interpretation: If government can’t act on the basis of any religious views, then it can’t generate the rationales that historically justified religious liberty. Second, secular egalitarianism, especially as reshaped and bolstered by the gay rights movement, is fundamentally incompatible with a robust understanding of religious freedom. Indeed, it has all the markings of an oppressive orthodoxy—a single ultimate value, inordinate certitude of its righteousness, and a desire to “penetrate into hearts and minds” to purify beliefs and motives.
— Edward Whelan is president of the Ethics and Public Policy Center.