Our legal mandarins have constructed a self-congratulatory narrative about their vindication of the First Amendment’s religion clauses. Supposedly, until the day in 1947 when the Supreme Court announced in the Everson v. Board of Education case that a “high and impregnable … wall of separation” must be maintained between church and state, religious entanglement prevailed throughout the land. Everson’s principle that government was to provide no aid to religion was subsequently re-grounded in the early 1960s prayer cases, Engel v. Vitale and Abington School District v. Schempp, which proclaimed that legislation must be neutral toward matters of religion and secular in its purpose. Other victories for “secular neutrality” followed. We now call this the standard version of American religious freedom. Some, apparently, don’t find it convincing.
They include the renowned constitutional scholar Steven Smith, whose historical and textual account in this book undermines the standard narrative. He begins by observing that religious freedom in America is a recovery of Christian theology’s long-held commitments to freedom of the church and freedom of conscience. America did not so much offer a new “gift to the world” as assemble the institutional architecture that would protect key historical notions of Christian religious freedom. So to understand the religion clauses of the First Amendment, one need not kiss the ring of Justice William Brennan. One does need to understand the evolution of Christian thought as it interacted with state power in imperial Rome, among medieval kings and princes, and in the Westphalian aftermath of the Protestant Reformation. Smith’s book provides an overview of this centuries-long process of Christianity shaping and being shaped by the law, carefully noting the way this evolution finally manifested itself in the North American colonies and in our constitutional “American settlement.”
Smith begins with Augustan Rome, noting the confrontation that occurred between Christianity and polytheism. No less a figure than Edward Gibbon noted that Rome’s polytheism led it toward a tolerance and ease with varied religious practices that precluded the type of legally enforced religious conformity that would later mark European Christianity. Smith credits Gibbon’s limited point here, but he does so to illuminate what Gibbon misses about Christian belief and its contribution to religious freedom. Roman polytheism had not produced a principled case for religious tolerance: the devotions paid by Roman citizens to their chosen gods rarely caused sectarian strife, but as Smith shows, polytheistic toleration was merely pragmatic, and it could be and was dispensed with whenever religious practice posed a threat to state power.
While later Christian intolerance, particularly if allied with state power, could be vicious—an attempt to enforce an interior belief in the authority of divine revelation—Christianity developed superior rationales for religious freedom and political freedom alike. If interior belief is primary, then commitment to revelation must be freely given for it to be valid. That coerced belief was illegitimate was a concept taught by Lactantius, an advisor to Constantine. Smith examines this intellectual lineage to stress its evolution and continuity in Christian thought. Lactantius’s reflections are, in part, similar to John Locke’s case for religious toleration. Likewise, the idea that belief must be freely given is precisely Thomas Jefferson’s explicitly theological rationale for religious freedom in the Virginia Statute of Religious Freedom.
One doesn’t arrive at such a principle unless some truth is believed to be higher than the state and above its determination. Unlike the Romans, Christians could affirm that they were citizens but, even more, creatures of a living God. It followed that their existence as loving and relational beings, their practices as worshippers of a giving, personal God, could not be defined exclusively by the state. In this way, Christianity inaugurated a new dimension of political liberty.
Smith discusses another component of religious freedom that Christians came to demand: freedom of the church. As a religion of relational persons, lived and practiced corporately, Christianity early came to insist on its institutional integrity, defined as the absence of political interference in ecclesiastical matters. As a result, the theological concept of freedom of the church, even when less practiced than asserted, separated the jurisdictions of state and church. Where Rome united religious and political authority in the office of the state, Christianity instilled principles derived from scripture and theological reflection that separated the two spheres.
The significance for the American experience, Smith argues, is that many of the colonists personally experienced real political-religious entanglement and oppression, with churches unable to preach the Gospel unless it pleased government authority. To the extent that American constitutionalism broke new ground for religious freedom, it was by recovering and securing at the national level a jurisdictional freedom for churches to be protected from political influence. The other part of this constitutional consensus was that at the state level the people maintained the authority to have established churches or not. And this was all that was promised by the First Amendment.
If we are to believe the standard narrative, Smith argues, then we are immediately confronted with a paucity of evidence surrounding the approval of the First Amendment that would support its being a “daring departure” and a “deliberate decision by the Founders to strike out on a fresh path in the relations between government and religion.” Smith as a constitutional historian notes that “Far from embracing grand and novel principles of religious freedom,” the religion clauses had as their “central purpose … to reaffirm the jurisdictional status quo—to acknowledge in writing that even under the new Constitution … the establishment and exercise of religion would remain the business of the states.”
One struggles to find in the record of the first Congress regarding approval of the religion clauses any substantive commitment to separation of church and state and freedom of conscience. Smith cautions us that “in reading these commitments back into the First Amendment, we do not implement but rather overrule the intentions of that amendment’s enactors.”
In applying the religion clauses to actual disputes, Smith argues, we should proceed historically, in accordance with the flow of constitutional arguments as they evolved over time. The strictly jurisdictional reading of the clauses receded in the 19th century in favor of a more comprehensive commitment to “separation of church and state” and “freedom of conscience” that made state churches untenable. But opposing sides in the white-hot controversies of that century did not use the federal courts as part of a strategy to delegitimize their opponents. Their unstated practice was to engage in what Smith terms “soft constitutionalism.”
This practice, which Smith means to revive, pulls from the idea that our Constitution is both “uppercase” and “lowercase”:
Let us describe the first entity—the formal legal document, enforceable by courts—as the ‘hard constitution,’ or simply as the Constitution (uppercase). And we can describe the second, more amorphous but not necessarily less important body of constitutive understandings, practices, and commitments as the ‘soft constitution,’ or as the constitution (lowercase).
Smith comes to this understanding in part through the work of Larry Kramer, former dean of Stanford Law School, who notes that we now understand the Constitution merely as “a subset of law” that is “within the province of courts” to pronounce upon. We’ve forgotten “the notion of central and constitutive understandings and commitments” not embodied in enforceable constitutional law but that are crucial for shaping arguments over constitutional meaning.
The significance for law and religion, writes Smith, is that our country has been in a great conversation throughout its history about the interplay between these two subjects. Squaring off from the beginning have been the “providentialists” and the “secularists.” Secularists have advocated the near total separation of religion and government, while providentialists have said that public acknowledgement of God by the state is warranted. Both groups have had their “eminent representatives: Jefferson and Madison (and, a bit later, Andrew Jackson) on the secularist side; Washington and Adams (and later Lincoln) representing the providentialist position.” Until the mid-20th century, the meaning of our Constitution’s religion clauses was “the product of the ongoing competition and collaboration between the providentialist and secularist interpretations of the Republic.”
The Constitution provided a “framework for argument,” Kramer notes, not a determinate set of legal outcomes. For the latter-day obsession with outcomes, we can thank the hubris of the 20th-century Supreme Court. Formerly, the two sides looked to Congress, state legislatures, campaigns, and public speeches to build support for their position, not to nine justices. The opposing sides experienced victories and defeats according to the vicissitudes of democratic politics, but the Constitution remained above them, permitting both a free hand in trying to convince their fellow citizens of the truth about God, man, and the U.S. Constitution. Contrast this process of political contestation with that of the near finality and exclusivity rendered by judicial decisions. (I do wish that Smith had devoted more time to exploring how soft constitutionalism could be revived as a practice, arguing for it as a live possibility given the impediments to its return.)
We can ask whether the current judiciary’s putting its weight behind the secularist position—its attempt to exclude the providentialist perspective and label adherents as constitutional heretics—has led to greater social peace than obtained under soft constitutionalism. One clue that it hasn’t, says Smith, is that federal judges have believed it prudent to back off from fully applying the logic of their secularist jurisprudence. They continue to find constitutional space for prayers before legislative assemblies, uphold the constitutionality of the words “under God” in the Pledge of Allegiance, and secure the place of government-appointed chaplains, among other highly visible “providentialist” practices. Such pragmatism injects a level of imprecision, if not unpredictability, into our constitutional law. Providentialists live with a court-applied stigma, secularists are left dissatisfied with the ways religion is still permitted to entangle itself with government.
The latter want secularism now, and the courts, in contradiction of their own principles, have shrunk from delivering it. Smith quotes several progressive scholars who find merit in this inconsistency, but he concludes that “it is hard to admire this kind of compromise—namely, one that results from flagrant inconsistency in adhering to announced doctrines.”
In the lead now is a consensus in the legal academy that religious freedom should not receive constitutional protection, the text of the First Amendment be damned. To the extent that religious freedom receives a constitutional shield, it should be under the umbrella of free speech, for example. So it should come as no surprise, Smith notes, that the Obama administration argued in the 2012 Hosanna-Tabor case against the doctrine of “ministerial exception” that permits churches freedom in the selection of clergy. Churches would thus have to fit clergy hiring decisions within the strictures of federal civil rights law—call it the 21st-century return of the Investiture Controversy.
The Supreme Court unanimously rejected this argument and reaffirmed ministerial exception. The Constitution, however, as conservatives know all too well, lives. What is now a consensus against religious freedom in the legal academy will likely migrate into the federal courts. Smith predicts that the conduit by which the academic view becomes judicial orthodoxy will be sexual egalitarianism. This particular ideology builds on the assumption that equality can brook no distinctions or substantive differences not only between men and women but any perceived or real differential treatment accorded to any of the proliferating number of sexual identities. That this could marginalize religious institutions and citizens who dissent from the latest evolution in sexual liberation is becoming an increasing likelihood. Religious liberty must be sharply attenuated if it shields ideas, beliefs, or practices that do not accord “equal respect” to any minority, racial or sexual. The problem, of course, is the amorphously defined concept of equal respect.
Smith’s ending, though, is really his beginning. The prospects for a robust practice of religious liberty may be dim, but Western history affords remarkably dimmer conditions and circumstances for religious minorities, conditions that were then upended by unforeseen developments that made the last first. Religious freedom’s future in America, Smith plainly concludes, rests ultimately with those who combine the inheritance of the American practice of religious liberty with a theory that is worthy of its excellence.
Richard M. Reinsch is a fellow at Liberty Fund and the editor of the Library of Law and Liberty.