The Enemies of Religious LibertyJAMES HITCHCOCK
It is common for religious believers to lament the Supreme Court's barely concealed hostility to the free exercise of religion, at least since the middle decades of the twentieth century. But in the long term, even more damage is likely to be done by the influence of ideas advocated by a cluster of political and legal theorists in the academy. For these writers, religious liberty itself is a pernicious idea.
Oddly enough, this formulation seems to harmonize with the argument of the Jesuit theologian John Courtney Murray, according to which belief in religious absolutes can be reconciled with the First Amendment of the Constitution by considering it to be an "article of peace" rather than an "article of faith." In this view, one is not obliged to accept any particular philosophical assumptions but must merely agree to respect the Constitution for the sake of civil harmony. As we shall see, despite Rawls endorsement of this Murrayan ideal, many of the most prominent liberals writing today adopt, whether or not they expicitly say so, a radically comprehensive and even imperial version of liberal ideology.
From the beginning, the American commitment to religious liberty was less than absolute, as the outlawing of Mormon polygamy definitively showed. Religious believers have enjoyed liberty only up to the point where their practices seem to threaten public order. But in the Jehovah's Witness decisions of the 1940s the Supreme Court began significantly to expand the rights of believers, exempting them even from laws considered generally beneficial to society and laying the burden of proof on those who would restrict such liberty.
At the same time that the Court was expanding religious liberty in the 1940s it also began moving away from the assumption, prevalent since the nation's founding, that religion is beneficial to society. After World War II it started invalidating even indirect support that religion receives from government. Justice Felix Frankfurter, fighting a rearguard action against the expansion of religious liberty in the 1940s, demanded that believers relativize their beliefs in order to enjoy the liberty guaranteed by the Constitution, and the Court eventually gave that demand constitutional standing, as citizens who wished to enjoy freedom of worship were told that they must forgo the possibility of bringing their beliefs to bear in the public square.
The First Amendment was thereby brought into tension with itself. Traditionally it had been assumed that "no establishment" was intended to serve as a protection for "free exercise." Now the former provision was understood to place restrictions on religious liberty by excluding religion from public life.
Another part of Frankfurter's bargain was that believers would not only have to abandon any public role for their faith but would also have to act as though their beliefs themselves were merely relative. As Stephen L. Carter points out in Dissent of the Governed (1998), by minimizing the role of religion in the public sphere, modern liberalism also renders it more difficult to live religiously in private. If the First Amendment is considered an "article of faith," society must of necessity discourage belief in ultimate truths, because such beliefs are said to foster division.
It is religion's claim to articulate the meaning of existence that runs up against Rawlsian "comprehensive" liberalism. As Carter observes, deep faith is both incomprehensible and threatening to the liberal order, which therefore defines religion as irrational, private, and divisive. As J. Judd Owen has pointed out in Religion and the Demise of Liberal Rationalism (2001), the liberal concept of individual freedom tends to create an atmosphere in which religion is tolerated only to the degree that it is deemed harmless: tolerance ends at the point where religion makes strong demands on its adherents.
The strict separationist argument has therefore been extended to what is "private" as well as public. Thus Amy Gutmann and Dennis Thompson acknowledge in Democracy and Disagreement (1996) that the liberal order threatens religious belief — and they believe it should. Similarly, in Toleration and the Constitution (1986) David A. J. Richards asserts the necessity of fostering "a religion and an ethics that validate the highest-order moral powers of rationality and reasonableness of a free people," which he declares to be "the only kind of religion suitable for a democracy." Richard Rorty likewise proclaims in Truth and Progress (1991) that the "highest achievements of humanity" are incompatible with traditional religion.
Ostensibly the primary political argument against strong religious beliefs is that they threaten civic peace; for this reason, Cass Sunstein argues in The Partial Constitution (1999) that America's founding document decrees "a secular liberal democracy in a way that is intended to minimize religious tension." He thus urges the liberal state to force the intolerant to be tolerant, with government serving as "a divine instrument" for depriving groups of "weapons to use against one another."
But if no deep conflicts are permissible in the liberal state, coercive methods may be necessary to restrain them. As Stanley Fish, no friend of religion, admits, the liberal state is tolerant in inverse proportion to the seriousness of what is at stake and does not achieve its promised neutrality. At the same time, in There's No Such Thing As Free Speech (1994) he ridicules believers for invoking liberal principles on their own behalf, arguing that they should not expect to benefit from liberalism's promises but ought actually to reject them. Wojciech Sadurski similarly argues in Moral Pluralism (1990) that government cannot be neutral towards those who allegedly deny the principle of neutrality itself.
According to Kathleen M. Sullivan of the Stanford University Law School, the "establishment clause" actually establishes a culture from which there can be no legitimate dissent — in which religion is tolerated only "insofar as it is consistent with the establishment of the secular moral order." She candidly admits that "the religion clauses enable the government to endorse a culture of liberal democracy that will predictably clash over many issues with religious subcultures." But believers "must pay for the secular army which engineers the truce among them" for the sake of civil peace. Critics of the theory of evolution, for example, are accused by Sullivan of being in violation of the spirit of the Constitution, which, she claims, has been "shaped by an argument honoring Galileo's defense of empirical rationality against the abuses of Bible interpretation." Hence the state is obligated to encourage "scientific rationality."
It follows logically that churches should be denied the right to be fully self-governing. Thus in A Wall of Separation (1998) Ted Jelen accuses a Catholic bishop who threatens religious sanctions against dissident church members of being guilty of "a religiously based threat to the prerogatives of democratic citizenship." The same charge would be brought against religious officials who express or enforce opposition to homosexual marriages or abortion. Sullivan thinks that churches can be allowed to exclude women from the ranks of the clergy only so long as this does not "impede the functioning of the civil public order." In Please Don't Wish Me a Merry Christmas (1997), Steven Feldman goes so far as to argue against allowing the major Christian denominations to proselytize among non-Christians.
The liberal state, Sadurski argues, should discriminate among religious groups on the basis of how "progressive" each is thought to be, and Rogers Smith insists in Liberalism and American Constitutional Law (1990) that religion can only enjoy constitutional liberties if it undergoes a basic transformation to make itself more "rational" or "self-critical." Going further, Steven Macedo, who explicitly identifies his view as "comprehensive," defines liberalism in The New Right Versus the Constitution (1987) as "a permanently educative order" for the preservation of liberal values and argues that the power of government can be legitimately used against illiberal churches because doing so promotes greater overall freedom. He urges "the right sort of liberal partisanship in all spheres of life," and, despite the Constitution's explicit prohibition of any religious test for public office, he argues that certain religious believers (notably Catholics) can justly be excluded from certain public functions, such as serving as judges.
Feminism is inevitably a pillar of this new academic liberal orthodoxy, and Macedo insists that religious groups should not be allowed to "inject" their own views of gender roles into public discussions. Calling her position "extremely moderate," Mary E. Becker of the DePaul College of Law rejects the very concept of religious liberty as "patriarchal," since it allegedly means something different for women than for men.
But legal restraint on religious influence is not to be confined only to the public sphere and to corporate religious life; it extends to individuals as well. Macedo acknowledges that such strictures are designed to affect citizens' private beliefs; exclusion from public life, he predicts, will cause believers to find their faiths less credible, and he justifies tolerating these faiths merely on the grounds that such toleration can create an environment in which it might be possible to wean people away from their beliefs.
Along the same lines, Smith asserts that "society" may overide people's commitments to particular religious groups if these commitments "seriously restrain their members' capacities and opportunities for reflective, independent choice." In other words, some private organizations, such as churches, should be restricted because their beliefs can be a danger to liberal values.
Gutmann and Thompson define children as future citizens whose educations are too important to be left entirely to parents, and claim that it is primarily through the educational system that the barrier between "public" and "private" is broken down and personal religious beliefs are claimed as legitimate concerns of the state. Gutmann and Thompson explicitly hold that the state need not be concerned that its educational system might violate the rights of religious believers.
Such views were once anathema to the Supreme Court. In the Pierce decision of 1925, the Court recognized the rights of private schools and parents, and thereby significantly affirmed religious liberty, especially in Justice James C. McReynolds' assertion that "the child is not the creature of the state." The 1970 Yoder case, in which the Court upheld the right of Amish parents not to enroll their children in public high schools, also focused on these issues. In dissenting in the latter case, Justice William O. Douglas got to the heart of the matter in asking whether parents had the right to "impose" their beliefs on their children, or whether on the contrary the state might not have an obligation to expose children to the opportunities of "the new and amazing world of diversity which we have today." (Douglas believed that 90 percent of people were not even fit to be parents.) Logically this left it at best an open question whether parents possess the right to raise their children in a particular religion.
If the academic advocates of comprehensive liberalism get their way, Douglas' extreme, formerly dissenting views would become the norm. Consider one of the most sensitive areas of cultural conflict today: sexual morality. Relying on arguments advanced in the writings of the "comprehensive" liberals examined here, a program promoting sexual abstinence could be challenged as unconstitutional, on the grounds that it arises from theistic beliefs, while a program encouraging sexual experimentation could be justified on the grounds that it is not religious in nature. In such conflicts religious believers are always slated to lose, which Stanley Fish, for one, insists is entirely appropriate.
Comprehensive liberalism implies that the Pierce decision was fundamentally in error and that there is no right to religious education at all, especially in conjunction with the conservative beliefs of parents. In the most extreme version of this argument, articulated by James Dwyer in Religious Schools vs. Children's Rights (1998), religious education inculcates "reactionary and repressive" values in children, and, for the good of the child, the state is not only obligated to prohibit such schools completely or monitor them closely but also to monitor closely how parents educate their children at home.
The issue raised by Douglas in his Yoder dissent was ostensibly the rights of children, a formulation which ignores the fact that in practice children require authority and that the only alternative to parental authority is the authority of the state. Dwyer asserts, almost casually, that parental choice in education might be "inconsistent with the state's aims," a formulation in which parental rights are subordinated to the whims of teachers and in which advocacy on behalf of "children" blends imperceptibly into advancing the aims of the state.
This concept of "children's rights" implies an official orthodoxy, with public agencies determining that certain beliefs are true and others false — and enforcing that distinction in the name of freedom. Becker and Dwyer, for example, demand that all education inculcate feminism and permissive attitudes towards sexual behavior, and that religions which fail to do so be made subject to state regulation.
For some liberals, "free exercise" has therefore come to be seen as dangerous, as it may have the effect of strengthening a cultural phenomenon that they consider unhealthy, even when it is promoted only privately; they would thus abolish religious freedom entirely. Richards thus advocates freedom not for religious beliefs but for "rational and reasonable capacities of persons themselves to originate, exercise, express, and change theories of life and how to live it well."
Dwyer insists that the government does not violate the "establishment clause" so long as its actions are intended to inhibit religion rather than to favor it, and Sullivan acknowledges that religion must be treated "asymmetrically" from other freedoms, with "entanglement" between government and religion a good thing for the purpose of restraining religion. Macedo urges the liberal society to admit frankly its uncompromisable hostility to certain kinds of dogmatic religion, while Martha Nussbaum of the University of Chicago postulates that religious liberty sometimes undermines other freedoms and thus should always be subordinated to those freedoms (for example, there can be no right to speak against the use of contraceptives).
But a test of liberalism's commitment to liberty should be precisely whether it can tolerate the "intolerant" — that is, those who make absolute claims for their beliefs. This in turn is part of liberalism's larger test — whether it can function nonideologically, providing maximum freedom for contending viewpoints, or whether it is itself a comprehensive ideology that demands adherence. As William Galston argues in Liberal Purposes (1991), liberalism rightly understood ought to tolerate even the "unexamined life."
If the Constitution respects not religion as such but merely "conscience," then it follows that the state's endorsement of certain controversial secular positions is no different from its endorsement of religious beliefs. The implications of this view are evaded by treating the First Amendment as embodying two contradictory meanings, which thereby gives nontheistic ideologies a competitive advantage. As Jesse Choper has pointed out in Securing Religious Liberty (1995), the "establishment clause" has no secular equivalent — no promise not to establish a secular code of belief.
In identifying the interests of the state, in formulating some concept of the public good, comprehensive liberals exclude religious believers as such from citizenship, even though a very high proportion of citizens define themselves as religious. A large majority of the nation is thus required to acquiesce in the use of governmental authority precisely for the purpose of undermining their own beliefs, even of impairing their ability to inculcate those beliefs in their children. By redefining "free exercise" and exalting the "establishment clause," separationists have in effect "established" their own hostility to religion.
Extreme separationists justify restraints on religious liberty on the grounds that religion tends to foment divisiveness. But they impose no such restraints on divisiveness of a secular kind. Ironically, liberals who are quick to detect signs of political repression even in democratic societies now justify the restriction of religious liberty on precisely the grounds traditionally used to justify political repression — that full freedom cannot be granted to those who allegedly would use it to undermine the regime of freedom. It is, to say the least, paradoxical to restrict religion undemocratically because it is deemed to be insufficiently supportive of democracy.
James Hitchcock. "The Enemies of Religious Liberty." First Things 140 (February 2004): 26-29.
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