B. Religious Tolerance, out of Religious Conviction: The “Liberal” Stance
The second possibility – and the one I ultimately include is the American constitutional stance – is that a society believes that religious truth exists but that society and the State do not reliably know what constitutes true religion, and thus cannot be trusted to get these things right. The State is “liberal” (in an Enlightenment, seventeenth and eighteenth century sense of the term) in that it embraces individual liberty on such matters. The State is neutral, or at least tolerant, but not necessarily agnostic in matters of religion.
The State embraces religious liberty, on this view, not because society disbelieves in the possibility of religious truth, but precisely because it believes in the possibility of religious truth. Society merely disbelieves in state authority over religion and does not share the (naïve) intuition that whatever a majority might believe in matters of religion is therefore the correct understanding of religion. The people share a pervasive conviction of religious truth and in the priority of God‟s commands over Man‟s but, often as a result of this same conviction, they also share a pervasive distrust of state authority to prescribe religious truth. After all, if the idea is that God‟s commands are prior to and superior to any obligations imposed by the State – in the words of the disciple Peter, recorded in the book of Acts, “We must obey God rather than men”5 – on what reasoning can it be accepted that the State (peopled by “men” and not necessarily good ones) necessarily has
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4 Of course, as soon as religious dissenters fleeing oppressive pre-liberal state-religion European regimes reached America, some of them replicated the pre-liberal pattern in their new communities. This led religious dissenters in the American colonies to flee pre-liberal state-religion American regimes. This history, too, formed part of the American experience leading to an eventual reaction against such arrangements generally. For excellent historical treatments, see John M. Barry, Roger Williams and the Creation of the American Soul (2012); Thomas J. Curry,The First Freedom: Church and Stte in America to the Passage of the First Amendment (1986); Mark DeWolfe Howe, The Garden and the Wilderness (1965).
5 Acts 5:29
the right ideas about what God commands? The very idea of State authority to prescribe what shall be orthodox in matters of religious belief and conduct is inconsistent with the premise of the priority of God and God‟s commands over those of any mere human authority.
Unless, that is, one assumes that the State always perfectly reflects the priorities of God in its decisions, actions, and requirements. Liberal societies, in their stance toward religious freedom, of course reject any such assumption. In part, that rejection is based on those societies‟ lived experiences and histories: they have seen governments that thought they knew religious truth, had it wrong (in the view of many), and oppressed dissenters who probably had it (more) right. America was settled in part by people fleeing such governments. In part, the rejection of state competence is based on liberal societies‟ theologies – their religious premises. There is much in Christianity, for example (and in many strands of Judaism), the overwhelmingly dominant religious stance of early America, that leads to skepticism about the necessary correctness of everything and anything the State decides and prescribes. The State may be right in its action and it may be wrong. And that observation surely extends to the State‟s religious views.6
More than that, the liberal view holds that worship of God, and obedience to God‟s commands, is a “natural right” – one of those fundamental rights of man that precedes the social compact and is never superseded by it. Again, this flows in substantial part from religious conviction about the priority of God and of God‟s commands. People might surrender some of their state-of-nature liberty in order to form a collective, civilized society that protects other types of rights against interference from and private violence by the predatory strong at the expense of the innocent weak. But the right to worship God according to the dictates of one‟s own conscience is not one of the rights that is ever justifiably surrendered to society and the State.7 That is because God exists and has a prior and always superior claim on human loyalty. The State acts legitimately only when it honors those prior claims of God.
Thus, the liberal stance is that, while religious truth exists, that does not mean the State can decide what it is. Individuals, and private groups, get to decide what it is, and have the right – the natural right – to act in accordance with their sincere conviction as to what that truth is. Freedom of religion, within such a society, is the collective embrace of the correctness of this proposition – the State‟s acknowledgement, within its fundamental constitution of government, that it is not the supreme authority in this respect; God is, and this means that the State must yield to private religious conscience, at least in the absence of some reasonably certain demonstration that the claim of religious conviction is insincere, not really religious, or harmfully outside the bounds of anything that plausibly could be thought the true command of God – not really the true “exercise of religion” in any plausibly recognizable, legitimate sense. (I will have more to say about this below: the collective conviction that there is such a thing as religious truth establishes boundaries, in extreme cases, on the claims that may be made in the name of God or
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6 [Think about what would be good general sources to cite here. Augustine? Calvin‟s Institutes? Good Jewish source? Romans 13? Modern echoes: Bonhoeffer.]
7 [Good sources and theorists? ]
religious conviction. In the end, I believe this is the only fully convincing rationale for what Free Exercise Clause doctrine has sometimes recognized as a “compelling state interest” overrides of presumptive claims for religious autonomy.)8
Under the liberal view, because the State is not supreme, the State must yield to the legitimate free exercise of religion. And because the State is not supreme, it may not prescribe and compel adherence to, or coerce, religious observance – it must respect the non-exercise of any particular religion, as a corollary aspect of true religious freedom. The consequence is “dis-establishment” of religion and broad freedom for religious exercise and non-exercise – religious freedom because society believes in God, believes in religious truth, and believes that such truth can only survive, thrive, and prevail in an atmosphere of religious liberty.
Such religious liberty can come in weak and in strong variations. The Lockean and early American concept of religious “toleration” is a weaker version of religious freedom than is the later, constitutional concept of “free exercise.” Within either variation, there are difficult instances of application on the margins – questions that I explore briefly below. But the fundamental liberal paradigm of constitutional religious liberty is that the State recognizes and protects religious liberty as a natural right, out of an essentially religious acknowledgement that God‟s authority categorically prevails over the State‟s.
C. Religious Tolerance out of the Conviction that Religious Truth Does Not Exist: The “Modern” View of Rational Skepticism.
A third possible stance is religious tolerance even where society does not believe in the possibility or reality of religious truth. Religious truth does not exist, on this view, but religion nonetheless should be tolerated, and its free exercise indulged or permitted, at least within reasonable bounds. I call this the “modern” view, a label that seeks to capture, however imprecisely, its somewhat “post-liberal” character, its relative recentness, and its broader twentieth-century perspective of rationalism and skepticism. It is distinguishable from the liberal view in its attitude toward religion: it is a post-religious, agnostic, secularist view of reality. It succeeds to the liberal view‟s skepticism about government‟s capacity to identify truth in matters of religion, and to its skepticism about the legitimacy of government power over matters of individual liberty and choice generally. But unlike the liberal view of religious freedom, the modern view is skeptical about religious truth claims generally, not just government power.
On this view, we protect religious liberty not because religion is fundamentally important – not because we believe God exists and makes claims on humans that are of prior and superior obligation to those of the State; God either does not exist or does not really make such claims. Rather, we protect religious liberty because lots of people continue to hold such beliefs and it is consistent with the modern idea of individual
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8 See infra at xx-xx.
autonomy to allow different people to believe different things and, to the extent practicable and sensible, to allow people to live and act autonomously on the basis of their different belief systems. Under this view, all sets of beliefs, religious or not, are equally tolerable. None is to be preferred by the State over any other. Freedom and individual autonomy are, in general, valuable ideals and should be furthered by State policy. This holds true with respect to religion the same as anything else – and not any more so. At root, there is nothing special about religious beliefs. The modern view scrunches up its forehead at the oddness of a phrase like “The Priority of God.”
If the liberal view is, as I think, the original American constitutional view embodied in the First Amendment‟s religion clauses, the modern view is the late-twentieth century, early twenty-first century, dominant American cultural understanding of religious freedom, and the one that increasingly has come to be embodied in Supreme Court decisions interpreting the religion clauses.9 “Religious freedom” is not about the priority of God‟s claims over Man‟s. Religious freedom is, rather, society‟s and the State‟s gently condescending indulgence of the fact that certain benighted people continue to take the notion of religion seriously and that it is not very nice, or very important, for the state to suppress such views. To be sure, the First Amendment contains religion clauses, but the modern attitude is almost one of viewing the First Amendment‟s protection of religion as akin to “historic preservation” of something quaint. The only way to make sense of such a constitutional provision today is to broaden it to reflect the equality of all belief systems. Belief in God is a particular form of belief and people should generally have freedom to believe what they want to believe.
This view accepts the idea of religious freedom, but without the religious premises that (at least initially) gave it life and depth. It leads, naturally, to a weaker, less robust, conception of religious freedom, for the simple reason that the underlying justification for such freedom is weaker. Religious freedom, on this view, makes sense for the same reasons that society protects individual freedom and autonomy generally; it is nice, good, liberal, and tolerant. (The obvious weakness here, on which I elaborate below, is that such a justification does little to support religious freedom specifically.)10
Religious freedom, on this view, also makes sense, to a certain extent, as a neo-Hobbesian “truce,” imposed by the State, to avoid the strife occasioned by religious sects competing for social and political dominance over one another, each motivated by its own competing vision of religious truth.11 The weakness here is that such a justification is a most incomplete explanation for religious liberty: it justifies a prohibition on
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9 Mapping this intuition onto the pattern of Supreme Court religion clause decisions of the past sixty years or so would be a fascinating (if exhausting) project, which I do not wish to undertake here. I leave it as an intuition, formed from a general sense of the “look” of 50-70 years, standing back a good distance from the painting created by the patterns of individual decisions, and inviting the reader to adopt a similar perspective and see if the intuition matches with their own.
10 I develop this view at length in Paulsen, Making Sense of Religious Freedom, supra note 1, at 1600-1604, building on important insights first suggested to me by a chapter in John Garvey‟s excellent book, WHAT ARE FREEDOMS FOR, cited in note 1.
11 Thomas Hobbes, Leviathan Ch. 42 (1651).
government establishment and coercion of official religious views and conduct – perhaps there will be no religious wars if the rules are that no sect can win the game and dominate or exterminate the others even if they win; that all must be allowed to exist in freedom – but it does not do much to justify a generous conception of the free exercise of religion: one could enforce religious peace by establishing none and suppressing all, too, as long as one had the resources, will and inclination to suppress religion rather than protect its irritating free exercise.)12
The practical doctrinal consequences of the “modern” posture, for First Amendment law, are as follows. First, there certainly should be no establishment of religion or anything at all like an establishment; indeed, to treat religious beliefs and exercise differently from secular beliefs and conduct begins to take on the feel of an unjustifiable establishment of religion. Why, after all, would it be at all sensible for religion to be treated preferably to anything else? Religious faith does not, from a secularist standpoint, really correspond to anything objectively real and of superior obligation. (God does not exist, at least not in the sense of traditional religions‟ conceptions of God.) There is thus nothing special about religious beliefs in particular, as opposed to any other set of strongly held personal beliefs. It is merely one belief set that people may hold. There‟s nothing wrong with that, on the modern view, but there‟s nothing wrong with any other such belief sets and – this is the crucial shift – it is improper to treat competing belief-sets and world-view paradigms differently. That is part of what “no establishment of religion” means – at least when viewed through modernist eyes. Non-establishment, on the modern view, tends strongly in the direction of a more thoroughgoing secular relativism.
A second, related consequence of the modern view is that the Free Exercise Clause becomes hard to accept as requiring special accommodation of religion in particular in the form of exemption, or immunity, from the usual rules of civil society. Freedom of belief is fine – if embraced across the board with respect to all beliefs, religious or not. That value can be assimilated comfortably to the values protected in a similar fashion by broad, contemporary notions of the freedom of speech. (As a rule, all speech must be treated alike, regardless of its content or viewpoint. “There is an equality of status in the field of ideas.”13)
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12 I develop this argument in earlier writing as well. Id. at 1604-1609. Indeed, one might even establish religious peace by establishing official religious views and policy, and enforcing the establishment orthodoxy with ruthless efficiency and state coercive power. That actually was Thomas Hobbes‟s view. CITE.
13 Police Department of Chicago v. Mosley, 408 U.S. 92, xxx (1972). There are certain exceptions and variations, but this is the usual rule. For a survey, see Paulsen et al. The Constitution of the United States (Foundation Press 2010) at 950-958 (“A Map of the First Amendment Freedom of Speech.”) For a brief defense, see Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 1919-1922 (2001). Religious speech participates fully in the benefits of this general rule. The religious content of speech by private parties, or the religious identity of the speaker or speakers, is not a basis for discrimination against such speech. See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995). This rule, however, is sometimes honored in the breach. See, e.g., Locke v. Davey, 540 U.S. 712 (2004).
But it is hard to justify the free exercise of religious beliefs that in any way seriously conflict with the usual norms of society, under the modern stance. Why tolerate religion,14 in this strong sense of exempting religious practice from certain of the rules that govern everyone else? On the premises of the modern view, God does not really exist; “God” does not really make commands of loyalty and obedience that constrain human behavior. Religious belief is just a choice that people make, a preference like any other. To borrow Stephen Carter‟s memorable phrase, the modern view tends to regard “God as a hobby” some people happen to have chosen.15 It is fine for the State to accommodate, even indulge, its citizens‟ hobbies, at least to some extent and if the free exercise of such hobbies does not impair anything the State otherwise thinks important. (On the other hand, if something is important enough to pass a law about, the State probably regards the activity as important enough not to permit hobby-exceptions.) But in a situation in which the State ordinarily would not feel inclined to accommodate individual‟s choices and hobbies as exceptions to its rules, there is no good reason to accommodate religious exercise. It thus becomes very hard, on this view – unacceptable really, if one accepts broadened, modern no-establishment principles – to embrace any proposition that religious exercise must be granted a sphere of autonomy or immunity from government regulation broader than any other set of beliefs would have in analogous circumstances. Thus, for example, a religious claim to conscientious objection from military service, on the modern view, should have no greater purchase than a wholly non-religious secular conscientious objection claim. The government should grant both of them or neither of them. But it should not treat them differently.16
Moreover, where circumstances are not precisely analogous – where comparable secular claims of autonomy either do not exist or probably would be dismissed out of hand (for example, Native American religious claims to use otherwise illegal, controlled substances in religious ceremonies,17 to unique access to federal forest lands for site-specific religious observance,18 or to exemption from endangered species law prohibitions on Eagle Feather use prohibitions19), it becomes hard for the modern view to rationalize accommodations of religion that impose anything other than de minimis costs on others, or that occasion any measurable degree of administrative inconvenience or inefficiency, including the asserted inconvenience and inefficiency of making any type of accommodation at all, let alone of sorting out genuine religious claims from spurious ones.
The overall result is a “strong” reading of the Establishment Clause‟s prohibition as tending to forbid any accommodation of religious exercise, let alone special
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14 Brian Leiter, Why Tolerate Religion? Xxx Const. Comm. Xxx (2008)
15 Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993) Chapter xx.
16 This is the perspective adopted, in essence, by the series of cases concerning conscientious objection to the military draft. See Paulsen, Making Sense of Religious Freedom, supra note 1, at 1617-1620; see also id. at 1603. I address this specific issue as an important illustration of the modern perspective, infra at xx.
17 See, e.g., Employment Division v. Smith, 494 U.S. 872 (1990).
18 See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988). 19 See, e.g., United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011).
19 See, e.g., United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011).
accommodation for religion specifically, and a “weak” reading of the Free Exercise Clause as essentially duplicating the protections of the Free Speech Clause – freedom of belief, freedom of expression, and no discrimination based on religious views or identity – but lacking any meaningful punch of its own. Unless costless, and unless it would be granted to non-religious persons on the same terms, religious exercise need not and should not be given any immunity from the operation of the usual rules adopted by society‟s government.
As noted above, I think this vision is not the vision contemplated by the framing generation or embodied in the original meaning of the religion clauses of the First Amendment. But it is an entirely understandable and coherent vision, logical on its own terms, if one reads the religion clauses through “modern” eyes.20 If one has the view (or if the overall society has such a view, or if the governing elites hold such a view) that religious faith is simply a subjective, idiosyncratic personal preference that does not conform to objective reality, it truly does not make much sense to accord religious exercise special treatment or accommodation. Why would one do such a thing? To the committed atheist, or even the rigorously (and perhaps doctrinaire) agnostic, granting religious exercise a special freedom from the usual rules of government is awkward, to say the least. That awkwardness then drives the modern interpreter toward a reading of the First Amendment‟s protection of the right to “the free exercise [of religion]” that is as un-generous, as un-special, as possible given the language. Viewed from an agnostic perspective – the modern stance – religious freedom is an odd right, a constitutional “anomaly” to be hedged in on all sides, grudgingly acknowledged, and narrowly construed.21 The alternative would be madness – allowing every person to be, in the words of Reynolds v. United States, the 1878 Supreme Court case upholding a federal statutory ban on polygamy, “a law unto himself.”22 The phrase is revealing: God does not (really) command a particular claimed religious observance or conduct; religious adherents make up these things for themselves. The modern stance, already incipient in the late nineteenth century, is that religious exercise is not really obedience to the law of God; it is every man claiming the right to be a law unto himself.
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20 The problem with adopting such a perspective is much like the problem with reading the words and phrases of the Constitution to mean things they did not mean at the time written and adopted: it is anachronistic. Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 875-877 (2009). Just as the meaning of words in an authoritative written legal text must be understood in the sense, and in the context, in which they would have been understood at the time and in the place where written, id., the backdrop understanding or perspective one brings to reading and applying such a text should attempt to approximate as nearly as possible the views and perspectives that readers of the text would have had at the time it was written and adopted as constitutional law. See infra at xx [SECTION II of this Article]
21 See Paulsen, Making Sense of Religious Freedom, supra note 1, at 1610-1615. This is the view adopted by the Supreme Court in the notable case of Employment Division v. Smith, 494 U.S. 872, 886-887 (1990) (arguing that a broad Free Exercise Clause right of religious persons “to ignore generally applicable laws” would be “a constitutional anomaly” and that, consequently, recognizing such a right would be “courting anarchy”). It is perhaps ironic that this modern view was embraced so vigorously by the writer of the majority opinion in Smith, Justice Antonin Scalia, who is himself a devout religious believer – a Roman Catholic Christian.
22 98 U.S. 145, 167 (1879). [Triple check date]
As noted, I think this follows logically from the (often unstated) premise of the modern view that God does not really exist and make claims on human conduct and loyalty that have priority over the claims of state and society. If the premise is right, the conclusion is right: religious freedom really is an odd freedom to have written into the Constitution and ought to be construed as narrowly as possible. Indeed, I would state the proposition in bolder terms yet: If God does not exist, religious freedom is a kooky enterprise, protecting delusional people‟s delusions and their actions predicated on such delusions, and giving those delusions priority over the general laws of society.
The modern view is easy enough to understand, and actually shares some insights in common with the “liberal” view. First, even on the liberal view, some claims of autonomy, made in the name of God and religion, are simply untenable – delusional, demented, insincere, pretextual, or otherwise so outside the bounds of what plausibly may be attributed to God as not to warrant treatment as part of the genuine exercise of “religion.” Even on the liberal view, then, certain claims of religious freedom lose to society‟s rules; they do not warrant First Amendment protection as truly involving the free exercise of religion. In the end, I defend this position, which generally goes under the heading of “compelling state interests” that trump otherwise valid religious claims, as implicit in the essentially religious justification for religious freedom: some claims concerning God‟s commands we simply can judge not to be valid and true, and thus fall outside the range of constitutional protection. 23 We tolerate some bogus or bananas claims of religious freedom as a prophylactic matter, but at some squeal point we simply reject them as implausible.
Note, however, how disturbingly similar this is (albeit at a somewhat different level) to the modern view‟s treatment of all religious belief, which is that none of them corresponds to anything true or real. The difference is that the liberal view starts from the premise that God exists and that there is such a thing as true knowledge, belief, and obedience to God‟s true commands. There are also some nonsense claims about God and God‟s commands that may assume the same superficial form. This observation follows logically from the view that there is such a thing as religious truth; religious truth means that there is such a thing as untrue claims made in the name of religion. The task of a religious freedom rule is (the liberal view goes) to protect the former, to the maximum extent, without sweeping in too much of the latter. The modern view overlaps with this view to the extent of believing that it is possible to identify some religious truth claims as nonsense. Indeed, the modern view starts from the premise that God does not exist and there is no such thing as true, knowledge, belief, and obedience to God‟s true commands. When push comes to shove, it is all nonsense, and the task of a religious freedom rule is to protect as little of such nonsense as possible. The modern view thus takes one aspect of the liberal view and runs with it, but in a secular direction because of secular cultural premises.
The second shared insight of the modern view and the liberal view is skepticism about the human capacity accurately to discern God‟s will. For the liberal view, this
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23 See infra at xxx [COMPELLING INTEREST SECTION DISCUSSION OF III.A.4 or 5]
skepticism translates into a thoroughgoing distrust of government power either to prescribe religious exercise for all or to deny free exercise of religion contrary to the usual rules. Folks get God wrong; a majority can get God wrong; and there‟s nothing more dangerous to the freedom to pursue and exercise true religious knowledge, worship, and obedience than the wrong claims of state and society that the majority, or the elites, know better what is the truth in matters of religion.
But the liberal stance‟s correct skepticism about the State‟s ability to discern religious truth – because it is a mere human enterprise and humans err – can subtly shade into skepticism generally about anyone‟s ability to discern, including the individual‟s or the church‟s (or other religious organization‟s). The modern view takes skepticism and runs with it, too. After all, if we don‟t trust the State, because we don‟t trust human authority to perceive correctly the commands or will of God, why should we trust any particular human to get it right either? Skepticism yields more skepticism. If, functionally, as a matter of governance of all, we are of the view that human beings cannot be trusted to correctly perceive the will of God, why should the whole of society ever defer to an individual‟s or minority religious community‟s views in this regard? Why is the one suddenly more likely to have it right than the many? Thus, a “soft” modern view might well take the view that, even if there might be such a thing as true beliefs about God, we cannot trust any individual to discern them correctly. Thus, it makes no sense to exempt such persons (or groups) from the general rules of law adopted by the community. In practical effect, individual claims to religious freedom from government‟s laws really do make the religious adherent “a law unto himself.” Since we cannot tell whether such adherent is correctly perceiving God‟s commands or not, we have no basis for excusing his conduct, even if we concede the theoretical possibility of God making actual commands.
The difference between the liberal view – religious freedom out of religious conviction – and the modern view – religious freedom notwithstanding religious disbelief – is in this respect a function of the extent of skepticism about the possibility of true religious claims generally and the “good faith” (so to speak) of religious persons. For the Believer, and for a society that consists largely of religious Believers, there exists the confidence that there is such a thing as religious Truth, that this truth is Good, and that this truth does not lead to a vast swath of absurd, society-destructive claims. There is, in short, a confidence – a faith – in the ultimate ability to separate the wheat from the chaff (to borrow a well known religious metaphor).24 And there is an acknowledgement that, to a certain substantial extent, the weeds must be permitted to grow along with the wheat, lest the good crop be cut down and killed with the weeds.25 In the modern view, the wheat and the weeds are essentially indistinguishable. There is no “good crop,” really; it‟s all a matter of individual preferences and beliefs. When individual preferences can be accommodated in general, it‟s fine to do so. But when individual preferences need to be overridden, they need to be overridden. Wheat and weeds being indistinguishable,
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24 Matthew 13:24-30
25 Id.
they are either permitted to grow together or, where deemed necessary by secular interests, they may both be mowed down or ploughed under.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 3
The second possibility – and the one I ultimately include is the American constitutional stance – is that a society believes that religious truth exists but that society and the State do not reliably know what constitutes true religion, and thus cannot be trusted to get these things right. The State is “liberal” (in an Enlightenment, seventeenth and eighteenth century sense of the term) in that it embraces individual liberty on such matters. The State is neutral, or at least tolerant, but not necessarily agnostic in matters of religion.
The State embraces religious liberty, on this view, not because society disbelieves in the possibility of religious truth, but precisely because it believes in the possibility of religious truth. Society merely disbelieves in state authority over religion and does not share the (naïve) intuition that whatever a majority might believe in matters of religion is therefore the correct understanding of religion. The people share a pervasive conviction of religious truth and in the priority of God‟s commands over Man‟s but, often as a result of this same conviction, they also share a pervasive distrust of state authority to prescribe religious truth. After all, if the idea is that God‟s commands are prior to and superior to any obligations imposed by the State – in the words of the disciple Peter, recorded in the book of Acts, “We must obey God rather than men”5 – on what reasoning can it be accepted that the State (peopled by “men” and not necessarily good ones) necessarily has
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4 Of course, as soon as religious dissenters fleeing oppressive pre-liberal state-religion European regimes reached America, some of them replicated the pre-liberal pattern in their new communities. This led religious dissenters in the American colonies to flee pre-liberal state-religion American regimes. This history, too, formed part of the American experience leading to an eventual reaction against such arrangements generally. For excellent historical treatments, see John M. Barry, Roger Williams and the Creation of the American Soul (2012); Thomas J. Curry,The First Freedom: Church and Stte in America to the Passage of the First Amendment (1986); Mark DeWolfe Howe, The Garden and the Wilderness (1965).
5 Acts 5:29
the right ideas about what God commands? The very idea of State authority to prescribe what shall be orthodox in matters of religious belief and conduct is inconsistent with the premise of the priority of God and God‟s commands over those of any mere human authority.
Unless, that is, one assumes that the State always perfectly reflects the priorities of God in its decisions, actions, and requirements. Liberal societies, in their stance toward religious freedom, of course reject any such assumption. In part, that rejection is based on those societies‟ lived experiences and histories: they have seen governments that thought they knew religious truth, had it wrong (in the view of many), and oppressed dissenters who probably had it (more) right. America was settled in part by people fleeing such governments. In part, the rejection of state competence is based on liberal societies‟ theologies – their religious premises. There is much in Christianity, for example (and in many strands of Judaism), the overwhelmingly dominant religious stance of early America, that leads to skepticism about the necessary correctness of everything and anything the State decides and prescribes. The State may be right in its action and it may be wrong. And that observation surely extends to the State‟s religious views.6
More than that, the liberal view holds that worship of God, and obedience to God‟s commands, is a “natural right” – one of those fundamental rights of man that precedes the social compact and is never superseded by it. Again, this flows in substantial part from religious conviction about the priority of God and of God‟s commands. People might surrender some of their state-of-nature liberty in order to form a collective, civilized society that protects other types of rights against interference from and private violence by the predatory strong at the expense of the innocent weak. But the right to worship God according to the dictates of one‟s own conscience is not one of the rights that is ever justifiably surrendered to society and the State.7 That is because God exists and has a prior and always superior claim on human loyalty. The State acts legitimately only when it honors those prior claims of God.
Thus, the liberal stance is that, while religious truth exists, that does not mean the State can decide what it is. Individuals, and private groups, get to decide what it is, and have the right – the natural right – to act in accordance with their sincere conviction as to what that truth is. Freedom of religion, within such a society, is the collective embrace of the correctness of this proposition – the State‟s acknowledgement, within its fundamental constitution of government, that it is not the supreme authority in this respect; God is, and this means that the State must yield to private religious conscience, at least in the absence of some reasonably certain demonstration that the claim of religious conviction is insincere, not really religious, or harmfully outside the bounds of anything that plausibly could be thought the true command of God – not really the true “exercise of religion” in any plausibly recognizable, legitimate sense. (I will have more to say about this below: the collective conviction that there is such a thing as religious truth establishes boundaries, in extreme cases, on the claims that may be made in the name of God or
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6 [Think about what would be good general sources to cite here. Augustine? Calvin‟s Institutes? Good Jewish source? Romans 13? Modern echoes: Bonhoeffer.]
7 [Good sources and theorists? ]
religious conviction. In the end, I believe this is the only fully convincing rationale for what Free Exercise Clause doctrine has sometimes recognized as a “compelling state interest” overrides of presumptive claims for religious autonomy.)8
Under the liberal view, because the State is not supreme, the State must yield to the legitimate free exercise of religion. And because the State is not supreme, it may not prescribe and compel adherence to, or coerce, religious observance – it must respect the non-exercise of any particular religion, as a corollary aspect of true religious freedom. The consequence is “dis-establishment” of religion and broad freedom for religious exercise and non-exercise – religious freedom because society believes in God, believes in religious truth, and believes that such truth can only survive, thrive, and prevail in an atmosphere of religious liberty.
Such religious liberty can come in weak and in strong variations. The Lockean and early American concept of religious “toleration” is a weaker version of religious freedom than is the later, constitutional concept of “free exercise.” Within either variation, there are difficult instances of application on the margins – questions that I explore briefly below. But the fundamental liberal paradigm of constitutional religious liberty is that the State recognizes and protects religious liberty as a natural right, out of an essentially religious acknowledgement that God‟s authority categorically prevails over the State‟s.
C. Religious Tolerance out of the Conviction that Religious Truth Does Not Exist: The “Modern” View of Rational Skepticism.
A third possible stance is religious tolerance even where society does not believe in the possibility or reality of religious truth. Religious truth does not exist, on this view, but religion nonetheless should be tolerated, and its free exercise indulged or permitted, at least within reasonable bounds. I call this the “modern” view, a label that seeks to capture, however imprecisely, its somewhat “post-liberal” character, its relative recentness, and its broader twentieth-century perspective of rationalism and skepticism. It is distinguishable from the liberal view in its attitude toward religion: it is a post-religious, agnostic, secularist view of reality. It succeeds to the liberal view‟s skepticism about government‟s capacity to identify truth in matters of religion, and to its skepticism about the legitimacy of government power over matters of individual liberty and choice generally. But unlike the liberal view of religious freedom, the modern view is skeptical about religious truth claims generally, not just government power.
On this view, we protect religious liberty not because religion is fundamentally important – not because we believe God exists and makes claims on humans that are of prior and superior obligation to those of the State; God either does not exist or does not really make such claims. Rather, we protect religious liberty because lots of people continue to hold such beliefs and it is consistent with the modern idea of individual
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8 See infra at xx-xx.
autonomy to allow different people to believe different things and, to the extent practicable and sensible, to allow people to live and act autonomously on the basis of their different belief systems. Under this view, all sets of beliefs, religious or not, are equally tolerable. None is to be preferred by the State over any other. Freedom and individual autonomy are, in general, valuable ideals and should be furthered by State policy. This holds true with respect to religion the same as anything else – and not any more so. At root, there is nothing special about religious beliefs. The modern view scrunches up its forehead at the oddness of a phrase like “The Priority of God.”
If the liberal view is, as I think, the original American constitutional view embodied in the First Amendment‟s religion clauses, the modern view is the late-twentieth century, early twenty-first century, dominant American cultural understanding of religious freedom, and the one that increasingly has come to be embodied in Supreme Court decisions interpreting the religion clauses.9 “Religious freedom” is not about the priority of God‟s claims over Man‟s. Religious freedom is, rather, society‟s and the State‟s gently condescending indulgence of the fact that certain benighted people continue to take the notion of religion seriously and that it is not very nice, or very important, for the state to suppress such views. To be sure, the First Amendment contains religion clauses, but the modern attitude is almost one of viewing the First Amendment‟s protection of religion as akin to “historic preservation” of something quaint. The only way to make sense of such a constitutional provision today is to broaden it to reflect the equality of all belief systems. Belief in God is a particular form of belief and people should generally have freedom to believe what they want to believe.
This view accepts the idea of religious freedom, but without the religious premises that (at least initially) gave it life and depth. It leads, naturally, to a weaker, less robust, conception of religious freedom, for the simple reason that the underlying justification for such freedom is weaker. Religious freedom, on this view, makes sense for the same reasons that society protects individual freedom and autonomy generally; it is nice, good, liberal, and tolerant. (The obvious weakness here, on which I elaborate below, is that such a justification does little to support religious freedom specifically.)10
Religious freedom, on this view, also makes sense, to a certain extent, as a neo-Hobbesian “truce,” imposed by the State, to avoid the strife occasioned by religious sects competing for social and political dominance over one another, each motivated by its own competing vision of religious truth.11 The weakness here is that such a justification is a most incomplete explanation for religious liberty: it justifies a prohibition on
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9 Mapping this intuition onto the pattern of Supreme Court religion clause decisions of the past sixty years or so would be a fascinating (if exhausting) project, which I do not wish to undertake here. I leave it as an intuition, formed from a general sense of the “look” of 50-70 years, standing back a good distance from the painting created by the patterns of individual decisions, and inviting the reader to adopt a similar perspective and see if the intuition matches with their own.
10 I develop this view at length in Paulsen, Making Sense of Religious Freedom, supra note 1, at 1600-1604, building on important insights first suggested to me by a chapter in John Garvey‟s excellent book, WHAT ARE FREEDOMS FOR, cited in note 1.
11 Thomas Hobbes, Leviathan Ch. 42 (1651).
government establishment and coercion of official religious views and conduct – perhaps there will be no religious wars if the rules are that no sect can win the game and dominate or exterminate the others even if they win; that all must be allowed to exist in freedom – but it does not do much to justify a generous conception of the free exercise of religion: one could enforce religious peace by establishing none and suppressing all, too, as long as one had the resources, will and inclination to suppress religion rather than protect its irritating free exercise.)12
The practical doctrinal consequences of the “modern” posture, for First Amendment law, are as follows. First, there certainly should be no establishment of religion or anything at all like an establishment; indeed, to treat religious beliefs and exercise differently from secular beliefs and conduct begins to take on the feel of an unjustifiable establishment of religion. Why, after all, would it be at all sensible for religion to be treated preferably to anything else? Religious faith does not, from a secularist standpoint, really correspond to anything objectively real and of superior obligation. (God does not exist, at least not in the sense of traditional religions‟ conceptions of God.) There is thus nothing special about religious beliefs in particular, as opposed to any other set of strongly held personal beliefs. It is merely one belief set that people may hold. There‟s nothing wrong with that, on the modern view, but there‟s nothing wrong with any other such belief sets and – this is the crucial shift – it is improper to treat competing belief-sets and world-view paradigms differently. That is part of what “no establishment of religion” means – at least when viewed through modernist eyes. Non-establishment, on the modern view, tends strongly in the direction of a more thoroughgoing secular relativism.
A second, related consequence of the modern view is that the Free Exercise Clause becomes hard to accept as requiring special accommodation of religion in particular in the form of exemption, or immunity, from the usual rules of civil society. Freedom of belief is fine – if embraced across the board with respect to all beliefs, religious or not. That value can be assimilated comfortably to the values protected in a similar fashion by broad, contemporary notions of the freedom of speech. (As a rule, all speech must be treated alike, regardless of its content or viewpoint. “There is an equality of status in the field of ideas.”13)
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12 I develop this argument in earlier writing as well. Id. at 1604-1609. Indeed, one might even establish religious peace by establishing official religious views and policy, and enforcing the establishment orthodoxy with ruthless efficiency and state coercive power. That actually was Thomas Hobbes‟s view. CITE.
13 Police Department of Chicago v. Mosley, 408 U.S. 92, xxx (1972). There are certain exceptions and variations, but this is the usual rule. For a survey, see Paulsen et al. The Constitution of the United States (Foundation Press 2010) at 950-958 (“A Map of the First Amendment Freedom of Speech.”) For a brief defense, see Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 1919-1922 (2001). Religious speech participates fully in the benefits of this general rule. The religious content of speech by private parties, or the religious identity of the speaker or speakers, is not a basis for discrimination against such speech. See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995). This rule, however, is sometimes honored in the breach. See, e.g., Locke v. Davey, 540 U.S. 712 (2004).
But it is hard to justify the free exercise of religious beliefs that in any way seriously conflict with the usual norms of society, under the modern stance. Why tolerate religion,14 in this strong sense of exempting religious practice from certain of the rules that govern everyone else? On the premises of the modern view, God does not really exist; “God” does not really make commands of loyalty and obedience that constrain human behavior. Religious belief is just a choice that people make, a preference like any other. To borrow Stephen Carter‟s memorable phrase, the modern view tends to regard “God as a hobby” some people happen to have chosen.15 It is fine for the State to accommodate, even indulge, its citizens‟ hobbies, at least to some extent and if the free exercise of such hobbies does not impair anything the State otherwise thinks important. (On the other hand, if something is important enough to pass a law about, the State probably regards the activity as important enough not to permit hobby-exceptions.) But in a situation in which the State ordinarily would not feel inclined to accommodate individual‟s choices and hobbies as exceptions to its rules, there is no good reason to accommodate religious exercise. It thus becomes very hard, on this view – unacceptable really, if one accepts broadened, modern no-establishment principles – to embrace any proposition that religious exercise must be granted a sphere of autonomy or immunity from government regulation broader than any other set of beliefs would have in analogous circumstances. Thus, for example, a religious claim to conscientious objection from military service, on the modern view, should have no greater purchase than a wholly non-religious secular conscientious objection claim. The government should grant both of them or neither of them. But it should not treat them differently.16
Moreover, where circumstances are not precisely analogous – where comparable secular claims of autonomy either do not exist or probably would be dismissed out of hand (for example, Native American religious claims to use otherwise illegal, controlled substances in religious ceremonies,17 to unique access to federal forest lands for site-specific religious observance,18 or to exemption from endangered species law prohibitions on Eagle Feather use prohibitions19), it becomes hard for the modern view to rationalize accommodations of religion that impose anything other than de minimis costs on others, or that occasion any measurable degree of administrative inconvenience or inefficiency, including the asserted inconvenience and inefficiency of making any type of accommodation at all, let alone of sorting out genuine religious claims from spurious ones.
The overall result is a “strong” reading of the Establishment Clause‟s prohibition as tending to forbid any accommodation of religious exercise, let alone special
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14 Brian Leiter, Why Tolerate Religion? Xxx Const. Comm. Xxx (2008)
15 Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993) Chapter xx.
16 This is the perspective adopted, in essence, by the series of cases concerning conscientious objection to the military draft. See Paulsen, Making Sense of Religious Freedom, supra note 1, at 1617-1620; see also id. at 1603. I address this specific issue as an important illustration of the modern perspective, infra at xx.
17 See, e.g., Employment Division v. Smith, 494 U.S. 872 (1990).
18 See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988). 19 See, e.g., United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011).
19 See, e.g., United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011).
accommodation for religion specifically, and a “weak” reading of the Free Exercise Clause as essentially duplicating the protections of the Free Speech Clause – freedom of belief, freedom of expression, and no discrimination based on religious views or identity – but lacking any meaningful punch of its own. Unless costless, and unless it would be granted to non-religious persons on the same terms, religious exercise need not and should not be given any immunity from the operation of the usual rules adopted by society‟s government.
As noted above, I think this vision is not the vision contemplated by the framing generation or embodied in the original meaning of the religion clauses of the First Amendment. But it is an entirely understandable and coherent vision, logical on its own terms, if one reads the religion clauses through “modern” eyes.20 If one has the view (or if the overall society has such a view, or if the governing elites hold such a view) that religious faith is simply a subjective, idiosyncratic personal preference that does not conform to objective reality, it truly does not make much sense to accord religious exercise special treatment or accommodation. Why would one do such a thing? To the committed atheist, or even the rigorously (and perhaps doctrinaire) agnostic, granting religious exercise a special freedom from the usual rules of government is awkward, to say the least. That awkwardness then drives the modern interpreter toward a reading of the First Amendment‟s protection of the right to “the free exercise [of religion]” that is as un-generous, as un-special, as possible given the language. Viewed from an agnostic perspective – the modern stance – religious freedom is an odd right, a constitutional “anomaly” to be hedged in on all sides, grudgingly acknowledged, and narrowly construed.21 The alternative would be madness – allowing every person to be, in the words of Reynolds v. United States, the 1878 Supreme Court case upholding a federal statutory ban on polygamy, “a law unto himself.”22 The phrase is revealing: God does not (really) command a particular claimed religious observance or conduct; religious adherents make up these things for themselves. The modern stance, already incipient in the late nineteenth century, is that religious exercise is not really obedience to the law of God; it is every man claiming the right to be a law unto himself.
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20 The problem with adopting such a perspective is much like the problem with reading the words and phrases of the Constitution to mean things they did not mean at the time written and adopted: it is anachronistic. Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 875-877 (2009). Just as the meaning of words in an authoritative written legal text must be understood in the sense, and in the context, in which they would have been understood at the time and in the place where written, id., the backdrop understanding or perspective one brings to reading and applying such a text should attempt to approximate as nearly as possible the views and perspectives that readers of the text would have had at the time it was written and adopted as constitutional law. See infra at xx [SECTION II of this Article]
21 See Paulsen, Making Sense of Religious Freedom, supra note 1, at 1610-1615. This is the view adopted by the Supreme Court in the notable case of Employment Division v. Smith, 494 U.S. 872, 886-887 (1990) (arguing that a broad Free Exercise Clause right of religious persons “to ignore generally applicable laws” would be “a constitutional anomaly” and that, consequently, recognizing such a right would be “courting anarchy”). It is perhaps ironic that this modern view was embraced so vigorously by the writer of the majority opinion in Smith, Justice Antonin Scalia, who is himself a devout religious believer – a Roman Catholic Christian.
22 98 U.S. 145, 167 (1879). [Triple check date]
As noted, I think this follows logically from the (often unstated) premise of the modern view that God does not really exist and make claims on human conduct and loyalty that have priority over the claims of state and society. If the premise is right, the conclusion is right: religious freedom really is an odd freedom to have written into the Constitution and ought to be construed as narrowly as possible. Indeed, I would state the proposition in bolder terms yet: If God does not exist, religious freedom is a kooky enterprise, protecting delusional people‟s delusions and their actions predicated on such delusions, and giving those delusions priority over the general laws of society.
The modern view is easy enough to understand, and actually shares some insights in common with the “liberal” view. First, even on the liberal view, some claims of autonomy, made in the name of God and religion, are simply untenable – delusional, demented, insincere, pretextual, or otherwise so outside the bounds of what plausibly may be attributed to God as not to warrant treatment as part of the genuine exercise of “religion.” Even on the liberal view, then, certain claims of religious freedom lose to society‟s rules; they do not warrant First Amendment protection as truly involving the free exercise of religion. In the end, I defend this position, which generally goes under the heading of “compelling state interests” that trump otherwise valid religious claims, as implicit in the essentially religious justification for religious freedom: some claims concerning God‟s commands we simply can judge not to be valid and true, and thus fall outside the range of constitutional protection. 23 We tolerate some bogus or bananas claims of religious freedom as a prophylactic matter, but at some squeal point we simply reject them as implausible.
Note, however, how disturbingly similar this is (albeit at a somewhat different level) to the modern view‟s treatment of all religious belief, which is that none of them corresponds to anything true or real. The difference is that the liberal view starts from the premise that God exists and that there is such a thing as true knowledge, belief, and obedience to God‟s true commands. There are also some nonsense claims about God and God‟s commands that may assume the same superficial form. This observation follows logically from the view that there is such a thing as religious truth; religious truth means that there is such a thing as untrue claims made in the name of religion. The task of a religious freedom rule is (the liberal view goes) to protect the former, to the maximum extent, without sweeping in too much of the latter. The modern view overlaps with this view to the extent of believing that it is possible to identify some religious truth claims as nonsense. Indeed, the modern view starts from the premise that God does not exist and there is no such thing as true, knowledge, belief, and obedience to God‟s true commands. When push comes to shove, it is all nonsense, and the task of a religious freedom rule is to protect as little of such nonsense as possible. The modern view thus takes one aspect of the liberal view and runs with it, but in a secular direction because of secular cultural premises.
The second shared insight of the modern view and the liberal view is skepticism about the human capacity accurately to discern God‟s will. For the liberal view, this
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23 See infra at xxx [COMPELLING INTEREST SECTION DISCUSSION OF III.A.4 or 5]
skepticism translates into a thoroughgoing distrust of government power either to prescribe religious exercise for all or to deny free exercise of religion contrary to the usual rules. Folks get God wrong; a majority can get God wrong; and there‟s nothing more dangerous to the freedom to pursue and exercise true religious knowledge, worship, and obedience than the wrong claims of state and society that the majority, or the elites, know better what is the truth in matters of religion.
But the liberal stance‟s correct skepticism about the State‟s ability to discern religious truth – because it is a mere human enterprise and humans err – can subtly shade into skepticism generally about anyone‟s ability to discern, including the individual‟s or the church‟s (or other religious organization‟s). The modern view takes skepticism and runs with it, too. After all, if we don‟t trust the State, because we don‟t trust human authority to perceive correctly the commands or will of God, why should we trust any particular human to get it right either? Skepticism yields more skepticism. If, functionally, as a matter of governance of all, we are of the view that human beings cannot be trusted to correctly perceive the will of God, why should the whole of society ever defer to an individual‟s or minority religious community‟s views in this regard? Why is the one suddenly more likely to have it right than the many? Thus, a “soft” modern view might well take the view that, even if there might be such a thing as true beliefs about God, we cannot trust any individual to discern them correctly. Thus, it makes no sense to exempt such persons (or groups) from the general rules of law adopted by the community. In practical effect, individual claims to religious freedom from government‟s laws really do make the religious adherent “a law unto himself.” Since we cannot tell whether such adherent is correctly perceiving God‟s commands or not, we have no basis for excusing his conduct, even if we concede the theoretical possibility of God making actual commands.
The difference between the liberal view – religious freedom out of religious conviction – and the modern view – religious freedom notwithstanding religious disbelief – is in this respect a function of the extent of skepticism about the possibility of true religious claims generally and the “good faith” (so to speak) of religious persons. For the Believer, and for a society that consists largely of religious Believers, there exists the confidence that there is such a thing as religious Truth, that this truth is Good, and that this truth does not lead to a vast swath of absurd, society-destructive claims. There is, in short, a confidence – a faith – in the ultimate ability to separate the wheat from the chaff (to borrow a well known religious metaphor).24 And there is an acknowledgement that, to a certain substantial extent, the weeds must be permitted to grow along with the wheat, lest the good crop be cut down and killed with the weeds.25 In the modern view, the wheat and the weeds are essentially indistinguishable. There is no “good crop,” really; it‟s all a matter of individual preferences and beliefs. When individual preferences can be accommodated in general, it‟s fine to do so. But when individual preferences need to be overridden, they need to be overridden. Wheat and weeds being indistinguishable,
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24 Matthew 13:24-30
25 Id.
they are either permitted to grow together or, where deemed necessary by secular interests, they may both be mowed down or ploughed under.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 3
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