Introduction
Religious freedom only makes entire sense as a social and constitutional arrangement on the supposition that God exists (or very likely exists); that God makes claims on the loyalty and conduct of human beings; and that such claims, rightly perceived and understood, are prior to, and superior to, the claims of any human authority. Simply put: God‟s commands – God‟s will, God‟s purposes– rightfully trump man‟s. Freedom of religion, understood as a human legal right, is government‟s recognition of the priority and superiority of God‟s true commands over anything the State requires or forbids.
That is the essence of religious liberty, understood as a natural law right. So understood, it is not a right that human authorities confer on those whom they rule – a dispensation. That would be, subtly and ironically, inconsistent with the very liberty the State purports to confer. It would be an assertion, at some level, of the priority and supremacy of the State and not God: the State, in its beneficence, grants the exercise of religion – the strivings of individuals and groups to discern and fulfill their duties to God, in good faith, as they understand them – a certain amount of leeway. But the nature and extent of such freedom is, on such a view, ultimately for the State to judge.
The state-conferred-dispensation view, which I think is the dominant view today, is not really religious liberty, in the sense of freedom of religious exercise from ultimate State control. It is a cipher, or shadow, or parody of religious liberty. At bottom, what justifies religious liberty – the only thing that makes it at all sensible as a liberty distinct from other liberties – is some shared sense that true religious obligation is more important than civil obligation and that, consequently, civil society must recognize this truth. Religious liberty is the legal duty of civil society to defer to the plausibly true free exercise of genuine religious faith.
That is the only conception that can fully justify the idea of constitutional protection of “free exercise” of religion – protection of freedom of religious conduct in opposition to the State‟s typical commands. The same premises support a related aspect of religious freedom (embodied in the Establishment Clause of the First Amendment): Because God‟s commands, rightly perceived, trump the State‟s commands, it makes no sense to say that the State can determine what God‟s commands are and whether an individual or group has rightly perceived them. The State may not in this respect, or any other, set itself up as the arbiter of religious truth and enforce its determinations as law. The State is presumptively incompetent authoritatively to determine what God does or does not command. At least, that must be the operating premise if the right of religious freedom is not to be a chimera. And even if that premise must give way in clear, or extreme, cases – because surely there are some claims individuals make about God‟s commands that are simply intolerably and irredeemably false – a strong presumption of state incompetence needs to be the starting point for any coherent system of religious freedom from state control or interference. Thus, it is incompatible with religious liberty for the state to “establish” an official religion or in any fashion prescribe, and then coerce, religious exercise.
Significantly, this is not because we deny the possibility that religious truth exists. Rather, the underlying theory of why we protect religious liberty is that such a thing as religious truth does exist. We value freedom for religion because we rightly prioritize true religion over the State‟s commands. We simply recognize the possibility of human error, and especially of governmental error, in matters of religion and so we do not trust the State to tell us the proper way to know, worship, and serve God. We value freedom for religion precisely because, if society gets these things wrong (as experience tells us it is quite likely to do) such errors, where backed by the power of the State, will tend to endanger religious truth. Error likes to stamp out truth if it has power to do so. And error is probable. Moreover, even if it were the case that society or the State did know religious truth, we would rightly question, on theological as well as practical grounds, the value and propriety of coercion in matters of religious conviction. True faith does not result from coercion, or so we are inclined to believe, often as a matter of religious faith.
Thus we protect the free exercise of religion for all (or as many as possible) and prohibit the establishment of any, not because of skepticism about the possibility of religious truth but because of the conviction that there is such a possibility as religious truth and because of agreement that religious truth is more important than anything else. We are skeptical not about truth, but about human perceptions of it and especially about State authority to discern or prescribe it.
My thesis is that this is, in its essence, the theory underlying and justifying the Religion Clauses of the First Amendment and that they should be read, understood, and applied in this light. The First Amendment‟s religious liberty provisions make no sense except on the supposition that God exists – that such a thing as religious truth exists and that the commands of true religious faith are real and superior to the commands of civil society. The framing generation, I submit, generally shared the supposition that God exists and generally shared this understanding of what religious liberty is for. (They disagreed, widely and not always cheerfully, about the nature and character of God, the manner and content of his revelation, and resulting human obligations and right conduct; but that is part of why that generation came to agree on the idea of religious freedom.)
The language of the Religion Clauses appears to reflect such an understanding – that is, the First Amendment‟s terms seem to reflect quite well the essentially religious premises underlying any serious commitment to the idea of religious liberty. The Free Exercise Clause is properly understood as conferring broad substantive immunity from government laws or regulations that would operate so as to prohibit sincere religious belief and exercise. As long as a claimed religious practice is truly religious, not pretextual, and has any plausible claim to religious truth – that is, as long as the claimed religious right is not contrary to the clear, universal moral command of God, resulting in serious harms outside the truly consenting, sincerely confessing community of faith – the State‟s rule must yield in the specific instance. The Establishment Clause is properly understood as barring government from compelling religious belief or exercise or punishing failure to adhere to a state-prescribed religious orthodoxy. It protects the free non-exercise of religion, just as the Free Exercise Clause protects its free exercise. The two clauses protect the same central liberty, from two slightly different directions: the Establishment Clause forbids government prescription of religious exercise; the Free Exercise Clause forbids government proscription of religious exercise.1
I began by saying that religious liberty only makes entire sense on the basis of these essentially religious premises about the existence of God and the priority of God‟s commands. It is possible to craft a narrower, more crabbed conception of religious liberty on different, more-or-less “secular” premises. But such conceptions, while in some respects more intuitively appealing to the modern liberal mind, have less explanatory power both in terms of why we would have – why the framing generation would have insisted upon – a specific First Amendment protection for the free exercise of
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1 This position (and in some respects even the verbal formulation) is one I have advanced before, in other writing. See Michael Stokes Paulsen, God is Great, Garvey is Good: Making Sense of Religious Freedom, 72 Notre Dame L. Rev. 1597, 1609-1610, 1611-1625 (1997) (reviewing John H. Garvey, WHAT ARE FREEDOMS FOR? (1996)) (hereinafter “Making Sense of Religious Freedom”) (comprehensively discussing, primarily, the meaning of the Free Exercise Clause); Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795 (1993) (hereinafter “Lemon is Dead”) (discussing, primarily, the meaning of the Establishment Clause and defending the proposition that the clause prohibits government coercion to engage in religious exercise, worship, affirmation, or direct support of a religious institution). See also Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249 (1995) (hereinafter “A RFRA Runs Through It”) (discussing question of what “interests” of state should prevail over legitimate claims to the free exercise of religion); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311 (1986) (hereinafter “Equal Protection Approach”) (asserting view that Establishment Clause is properly understood as equally protecting the freedom not to exercise religion). In this essay, I build on ideas presented in these articles and refine and modify some of them. In doing so, I have sometimes taken the liberty of closely paraphrasing formulations I have used before. I have endeavored not to overburden the text with too many direct quotation marks and at the same time not to depart greatly from prior formulations of propositions except where I really do intend a refinement (or repudiation). The result is a certain amount of borderline-self-plagiarism, for which I hereby apologize – and which this general footnote hopefully mitigates to the extent necessary by attributing the original sources.
religion and in terms of what that provision actually says. Secular theories of religious liberty are weaker theories and harder to defend on principle.2
But there are such possible theories and one of the first inquiries in seeking a full understanding of the religion clauses is to sketch the range of possible societal stances toward religious liberty and to identify and locate the conception that the First Amendment seems best to match. Section I of this essay identifies four general stances toward religious freedom, gridded by different views as to whether they proceed from the premise that religious truth exists and different views as to whether one should be tolerant or intolerant of individual (and group) departures from society‟s general answer to this question. Section II stakes the claim that the First Amendment religion clauses fit into the general stance of strong toleration of individual claims to religious free exercise because of a belief in the reality and possibility of religious truth and liberal skepticism about the capacity of the state to identify and prescribe such truth. The model for understanding the Religion Clauses of the First Amendment, then, is “Freedom For Religion” – protection of religious freedom because of the belief that religion is intrinsically important and that knowledge and worship of God, and obedience to God‟s commands and expectations, is in principle more important than anything government or society might say. Section III discusses how this model might help illumine understanding of the language of the First Amendment‟s Free Exercise Clause and Establishment Clause, and guide its faithful application. In particular, it helps explain why the First Amendment, properly construed, protects only the free exercise of religion and not analogous claims of secular conscience and conduct, not matter how similar in form or sympathetic; why it protects such free exercise even from facially neutral laws; and why and how religious premises may help identify the bounds, or limits, of cognizable claims of freedom – immunity from state authority – for religion.
I. Four Stances Toward Religious Freedom
There are fundamentally four types of stances a society, and its governmental system, can adopt with respect to the relationship between state authority and religious exercise. The first two proceed from a society‟s general understanding that religious truth exists, but fork off in different directions depending on views about the role of the state in defining and enforcing religious truth. The first view thinks the state can know what religious truth is and should enforce it; the second thinks the state not competent to judge such matters and should tolerate, even embrace, private freedom to decide and act on views that may differ from society‟s general view of what religious truth is.
The third and fourth stances proceed from a society‟s general view that religious truth does not exist, but take different positions as to what stance the State should take with respect to persons or groups who nonetheless believe in religious truth. The third view would tolerate beliefs and to some extent conduct at variance with the non-religious
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2 For extended discussion of this part, see Paulsen, Making Sense of Religious Freedom, supra note 1 at 1600-1609.
general views of society; the fourth view would tend to regard most any religious conduct at variance with society‟s laws as unjustified and unacceptable.
The four stances usefully can be arranged in a crudely chronological fashion from a “pre-liberal” stance of religious intolerance (because of a belief in religious truth), to a “liberal” stance of religious tolerance (because of a belief in religious truth), to a “modern” stance of religious tolerance (despite a disbelief in religious truth), and finally to a “post-modern” stance of religious intolerance (because of a disbelief in religious truth). The labels are imperfect3 and the lines between categories often blurred. But, painting with a broad brush, the different categories correspond generally to real differences in paradigms of the relationship between religious and State authority.
A. Religious Intolerance out of Religious Conviction: The “Pre-Liberal” Stance
The first possibility is that a society believes that religious truth exists and that society and the (religious) State know what that truth is and therefore should not tolerate contrary positions. The logic behind such a position is that if one is fully convinced both that God exists and that one knows precisely what God commands, requires, or expects (and if there is broad agreement within society on these points), toleration of dissent is toleration of grave, destructive, fundamental moral error, harmful both to the individuals concerned and society at large. To allow dissenting conduct, or even dissenting expression, is (on this view) inconsistent with the premise that religious truth exists and we know of what that truth consists. Why tolerate error on these most fundamental of things? More than that, the conduct and stance of the state and of society as a whole should reflect the known, agreed understanding of God‟s will.
The consequence of such a “pre-liberal” view is that there is no room for freedom of religious exercise at variance with the commands of the State. There is not, and should not be, any “free exercise” of religion in this strong sense. Nor, even, should religious dissent be tolerated. Furthermore, it makes entire sense to prescribe, by law, what religious beliefs should be official, conform all state policy to such beliefs, and prescribe their observance. The pre-liberal view logically embraces, in short, an “established” religion, prescribed by the State and enforced upon all subjects or citizens of the State. Its hallmarks are State prescription and State coercion in matters of religion.
One readily recognizes in this stance the views that led to religious conflicts, and even religious wars, in Europe (and the Middle East, and elsewhere) for centuries, and that was part of the European history against which the quintessentially American view
—————
3 In prior writing, I have sometimes used the term “liberal” to describe what I here dub “modern.” Both labels are imperfect. My intention here is to distinguish between classical liberal understandings of the reasons for protecting religious liberty that were dominant in the eighteenth and at least early nineteenth centuries – views influenced by intellectual currents formed by the Reformation, Renaissance, Great Awakening, and Enlightenment but that ultimately accept the reality of God and the priority of God‟s commands over man‟s law – and later, twentieth century “modern” understandings of the reasons for religious liberty that purport to depend less (or not at all) on whether or not God exists and makes true commands that bind human conscience and conduct.
of religious liberty was reacting, and from which many European-Americans were fleeing in the century preceding American independence.4 One can also recognize in this stance the views that form various radical Islamist movements even today, and some fundamentalist strands of other religions. The pre-liberal view obviously is not dead; it persists in many areas of the globe and in certain religious communities. It proceeds from a sincere conviction of religious truth, and it insists, as a result of that conviction, that falsity – all that does not conform to the religious truth so identified – be defeated, repudiated, extirpated, overcome, or killed.
This view believes in what I would call “The Priority of God” and shares that belief with the liberal stance that I discuss next: God‟s requirements and expectations are more important than any contrary human commands. The difference is that the Pre-liberal view believes that society, and the State, reliably know what God‟s requirements and expectations are and that it is proper for the State to impose those commands as its human commands, enforce conformity to them, and obliterate (to the extent possible) dissent.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 2
Religious freedom only makes entire sense as a social and constitutional arrangement on the supposition that God exists (or very likely exists); that God makes claims on the loyalty and conduct of human beings; and that such claims, rightly perceived and understood, are prior to, and superior to, the claims of any human authority. Simply put: God‟s commands – God‟s will, God‟s purposes– rightfully trump man‟s. Freedom of religion, understood as a human legal right, is government‟s recognition of the priority and superiority of God‟s true commands over anything the State requires or forbids.
That is the essence of religious liberty, understood as a natural law right. So understood, it is not a right that human authorities confer on those whom they rule – a dispensation. That would be, subtly and ironically, inconsistent with the very liberty the State purports to confer. It would be an assertion, at some level, of the priority and supremacy of the State and not God: the State, in its beneficence, grants the exercise of religion – the strivings of individuals and groups to discern and fulfill their duties to God, in good faith, as they understand them – a certain amount of leeway. But the nature and extent of such freedom is, on such a view, ultimately for the State to judge.
The state-conferred-dispensation view, which I think is the dominant view today, is not really religious liberty, in the sense of freedom of religious exercise from ultimate State control. It is a cipher, or shadow, or parody of religious liberty. At bottom, what justifies religious liberty – the only thing that makes it at all sensible as a liberty distinct from other liberties – is some shared sense that true religious obligation is more important than civil obligation and that, consequently, civil society must recognize this truth. Religious liberty is the legal duty of civil society to defer to the plausibly true free exercise of genuine religious faith.
That is the only conception that can fully justify the idea of constitutional protection of “free exercise” of religion – protection of freedom of religious conduct in opposition to the State‟s typical commands. The same premises support a related aspect of religious freedom (embodied in the Establishment Clause of the First Amendment): Because God‟s commands, rightly perceived, trump the State‟s commands, it makes no sense to say that the State can determine what God‟s commands are and whether an individual or group has rightly perceived them. The State may not in this respect, or any other, set itself up as the arbiter of religious truth and enforce its determinations as law. The State is presumptively incompetent authoritatively to determine what God does or does not command. At least, that must be the operating premise if the right of religious freedom is not to be a chimera. And even if that premise must give way in clear, or extreme, cases – because surely there are some claims individuals make about God‟s commands that are simply intolerably and irredeemably false – a strong presumption of state incompetence needs to be the starting point for any coherent system of religious freedom from state control or interference. Thus, it is incompatible with religious liberty for the state to “establish” an official religion or in any fashion prescribe, and then coerce, religious exercise.
Significantly, this is not because we deny the possibility that religious truth exists. Rather, the underlying theory of why we protect religious liberty is that such a thing as religious truth does exist. We value freedom for religion because we rightly prioritize true religion over the State‟s commands. We simply recognize the possibility of human error, and especially of governmental error, in matters of religion and so we do not trust the State to tell us the proper way to know, worship, and serve God. We value freedom for religion precisely because, if society gets these things wrong (as experience tells us it is quite likely to do) such errors, where backed by the power of the State, will tend to endanger religious truth. Error likes to stamp out truth if it has power to do so. And error is probable. Moreover, even if it were the case that society or the State did know religious truth, we would rightly question, on theological as well as practical grounds, the value and propriety of coercion in matters of religious conviction. True faith does not result from coercion, or so we are inclined to believe, often as a matter of religious faith.
Thus we protect the free exercise of religion for all (or as many as possible) and prohibit the establishment of any, not because of skepticism about the possibility of religious truth but because of the conviction that there is such a possibility as religious truth and because of agreement that religious truth is more important than anything else. We are skeptical not about truth, but about human perceptions of it and especially about State authority to discern or prescribe it.
My thesis is that this is, in its essence, the theory underlying and justifying the Religion Clauses of the First Amendment and that they should be read, understood, and applied in this light. The First Amendment‟s religious liberty provisions make no sense except on the supposition that God exists – that such a thing as religious truth exists and that the commands of true religious faith are real and superior to the commands of civil society. The framing generation, I submit, generally shared the supposition that God exists and generally shared this understanding of what religious liberty is for. (They disagreed, widely and not always cheerfully, about the nature and character of God, the manner and content of his revelation, and resulting human obligations and right conduct; but that is part of why that generation came to agree on the idea of religious freedom.)
The language of the Religion Clauses appears to reflect such an understanding – that is, the First Amendment‟s terms seem to reflect quite well the essentially religious premises underlying any serious commitment to the idea of religious liberty. The Free Exercise Clause is properly understood as conferring broad substantive immunity from government laws or regulations that would operate so as to prohibit sincere religious belief and exercise. As long as a claimed religious practice is truly religious, not pretextual, and has any plausible claim to religious truth – that is, as long as the claimed religious right is not contrary to the clear, universal moral command of God, resulting in serious harms outside the truly consenting, sincerely confessing community of faith – the State‟s rule must yield in the specific instance. The Establishment Clause is properly understood as barring government from compelling religious belief or exercise or punishing failure to adhere to a state-prescribed religious orthodoxy. It protects the free non-exercise of religion, just as the Free Exercise Clause protects its free exercise. The two clauses protect the same central liberty, from two slightly different directions: the Establishment Clause forbids government prescription of religious exercise; the Free Exercise Clause forbids government proscription of religious exercise.1
I began by saying that religious liberty only makes entire sense on the basis of these essentially religious premises about the existence of God and the priority of God‟s commands. It is possible to craft a narrower, more crabbed conception of religious liberty on different, more-or-less “secular” premises. But such conceptions, while in some respects more intuitively appealing to the modern liberal mind, have less explanatory power both in terms of why we would have – why the framing generation would have insisted upon – a specific First Amendment protection for the free exercise of
—————
1 This position (and in some respects even the verbal formulation) is one I have advanced before, in other writing. See Michael Stokes Paulsen, God is Great, Garvey is Good: Making Sense of Religious Freedom, 72 Notre Dame L. Rev. 1597, 1609-1610, 1611-1625 (1997) (reviewing John H. Garvey, WHAT ARE FREEDOMS FOR? (1996)) (hereinafter “Making Sense of Religious Freedom”) (comprehensively discussing, primarily, the meaning of the Free Exercise Clause); Michael Stokes Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795 (1993) (hereinafter “Lemon is Dead”) (discussing, primarily, the meaning of the Establishment Clause and defending the proposition that the clause prohibits government coercion to engage in religious exercise, worship, affirmation, or direct support of a religious institution). See also Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249 (1995) (hereinafter “A RFRA Runs Through It”) (discussing question of what “interests” of state should prevail over legitimate claims to the free exercise of religion); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311 (1986) (hereinafter “Equal Protection Approach”) (asserting view that Establishment Clause is properly understood as equally protecting the freedom not to exercise religion). In this essay, I build on ideas presented in these articles and refine and modify some of them. In doing so, I have sometimes taken the liberty of closely paraphrasing formulations I have used before. I have endeavored not to overburden the text with too many direct quotation marks and at the same time not to depart greatly from prior formulations of propositions except where I really do intend a refinement (or repudiation). The result is a certain amount of borderline-self-plagiarism, for which I hereby apologize – and which this general footnote hopefully mitigates to the extent necessary by attributing the original sources.
religion and in terms of what that provision actually says. Secular theories of religious liberty are weaker theories and harder to defend on principle.2
But there are such possible theories and one of the first inquiries in seeking a full understanding of the religion clauses is to sketch the range of possible societal stances toward religious liberty and to identify and locate the conception that the First Amendment seems best to match. Section I of this essay identifies four general stances toward religious freedom, gridded by different views as to whether they proceed from the premise that religious truth exists and different views as to whether one should be tolerant or intolerant of individual (and group) departures from society‟s general answer to this question. Section II stakes the claim that the First Amendment religion clauses fit into the general stance of strong toleration of individual claims to religious free exercise because of a belief in the reality and possibility of religious truth and liberal skepticism about the capacity of the state to identify and prescribe such truth. The model for understanding the Religion Clauses of the First Amendment, then, is “Freedom For Religion” – protection of religious freedom because of the belief that religion is intrinsically important and that knowledge and worship of God, and obedience to God‟s commands and expectations, is in principle more important than anything government or society might say. Section III discusses how this model might help illumine understanding of the language of the First Amendment‟s Free Exercise Clause and Establishment Clause, and guide its faithful application. In particular, it helps explain why the First Amendment, properly construed, protects only the free exercise of religion and not analogous claims of secular conscience and conduct, not matter how similar in form or sympathetic; why it protects such free exercise even from facially neutral laws; and why and how religious premises may help identify the bounds, or limits, of cognizable claims of freedom – immunity from state authority – for religion.
I. Four Stances Toward Religious Freedom
There are fundamentally four types of stances a society, and its governmental system, can adopt with respect to the relationship between state authority and religious exercise. The first two proceed from a society‟s general understanding that religious truth exists, but fork off in different directions depending on views about the role of the state in defining and enforcing religious truth. The first view thinks the state can know what religious truth is and should enforce it; the second thinks the state not competent to judge such matters and should tolerate, even embrace, private freedom to decide and act on views that may differ from society‟s general view of what religious truth is.
The third and fourth stances proceed from a society‟s general view that religious truth does not exist, but take different positions as to what stance the State should take with respect to persons or groups who nonetheless believe in religious truth. The third view would tolerate beliefs and to some extent conduct at variance with the non-religious
—————
2 For extended discussion of this part, see Paulsen, Making Sense of Religious Freedom, supra note 1 at 1600-1609.
general views of society; the fourth view would tend to regard most any religious conduct at variance with society‟s laws as unjustified and unacceptable.
The four stances usefully can be arranged in a crudely chronological fashion from a “pre-liberal” stance of religious intolerance (because of a belief in religious truth), to a “liberal” stance of religious tolerance (because of a belief in religious truth), to a “modern” stance of religious tolerance (despite a disbelief in religious truth), and finally to a “post-modern” stance of religious intolerance (because of a disbelief in religious truth). The labels are imperfect3 and the lines between categories often blurred. But, painting with a broad brush, the different categories correspond generally to real differences in paradigms of the relationship between religious and State authority.
A. Religious Intolerance out of Religious Conviction: The “Pre-Liberal” Stance
The first possibility is that a society believes that religious truth exists and that society and the (religious) State know what that truth is and therefore should not tolerate contrary positions. The logic behind such a position is that if one is fully convinced both that God exists and that one knows precisely what God commands, requires, or expects (and if there is broad agreement within society on these points), toleration of dissent is toleration of grave, destructive, fundamental moral error, harmful both to the individuals concerned and society at large. To allow dissenting conduct, or even dissenting expression, is (on this view) inconsistent with the premise that religious truth exists and we know of what that truth consists. Why tolerate error on these most fundamental of things? More than that, the conduct and stance of the state and of society as a whole should reflect the known, agreed understanding of God‟s will.
The consequence of such a “pre-liberal” view is that there is no room for freedom of religious exercise at variance with the commands of the State. There is not, and should not be, any “free exercise” of religion in this strong sense. Nor, even, should religious dissent be tolerated. Furthermore, it makes entire sense to prescribe, by law, what religious beliefs should be official, conform all state policy to such beliefs, and prescribe their observance. The pre-liberal view logically embraces, in short, an “established” religion, prescribed by the State and enforced upon all subjects or citizens of the State. Its hallmarks are State prescription and State coercion in matters of religion.
One readily recognizes in this stance the views that led to religious conflicts, and even religious wars, in Europe (and the Middle East, and elsewhere) for centuries, and that was part of the European history against which the quintessentially American view
—————
3 In prior writing, I have sometimes used the term “liberal” to describe what I here dub “modern.” Both labels are imperfect. My intention here is to distinguish between classical liberal understandings of the reasons for protecting religious liberty that were dominant in the eighteenth and at least early nineteenth centuries – views influenced by intellectual currents formed by the Reformation, Renaissance, Great Awakening, and Enlightenment but that ultimately accept the reality of God and the priority of God‟s commands over man‟s law – and later, twentieth century “modern” understandings of the reasons for religious liberty that purport to depend less (or not at all) on whether or not God exists and makes true commands that bind human conscience and conduct.
of religious liberty was reacting, and from which many European-Americans were fleeing in the century preceding American independence.4 One can also recognize in this stance the views that form various radical Islamist movements even today, and some fundamentalist strands of other religions. The pre-liberal view obviously is not dead; it persists in many areas of the globe and in certain religious communities. It proceeds from a sincere conviction of religious truth, and it insists, as a result of that conviction, that falsity – all that does not conform to the religious truth so identified – be defeated, repudiated, extirpated, overcome, or killed.
This view believes in what I would call “The Priority of God” and shares that belief with the liberal stance that I discuss next: God‟s requirements and expectations are more important than any contrary human commands. The difference is that the Pre-liberal view believes that society, and the State, reliably know what God‟s requirements and expectations are and that it is proper for the State to impose those commands as its human commands, enforce conformity to them, and obliterate (to the extent possible) dissent.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 2
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