D. Religious Intolerance out of the Conviction that Religious Truth Does Not Exist: The “Post-Modern” View
The final stance brings us full circle: religious intolerance, not because the state believes in God and wishes to establish the One True Faith and suppress all competing notions (the “pre-liberal” view), but religious intolerance because the State disbelieves in God and thus has no use for – and little tolerance of – religious conduct that in any way resists the supposedly more rational, sensible norms the State has adopted as the rules for governing the society in question. Once again, this “post-modern” view proceeds from and succeeds to some of the views of the preceding, “modern” perspective. It simply takes that perspective to a more extreme conclusion. Just as the modern view takes the skepticism of the liberal view seriously, and runs with it – adding modern doubt about religious truth – the post-modern view takes the modern view‟s disbelief in God seriously, and runs with that view. Given the weakness of the conception of religious liberty justified by the modern view, the post-modern perspective simply takes the next logical step and knocks out the last prop sustaining any serious notion of religious liberty. Given that God does not exist, the rationales for religious liberty embraced by the modern view are weak and archaic; better to dispense with them altogether and go straight to the last page of the story. God, if He ever existed, is dead and with him any sensible claim to religious autonomy in contravention of the usual norms of secular society.
This view holds, then, that religious truth does not exist and that it is therefore affirmatively harmful to secular society to permit the free exercise of such views. Whether or not such beliefs and their expression must be tolerated as an aspect of the freedom of speech, the state always has a legitimate interest in suppressing religiously-motivated behaviors in conflict with society‟s laws and rules, whatever they may be. The consequence of this view is an “establishment” of sorts, not of religion, but of secularism – a thoroughly secular State, educational establishment, cultural identity, and system of laws. The free exercise of religion never requires an exemption or immunity from any such law. There may be no “free exercise” at variance with the rules of the secular establishment.
A fair illustration of this post-modern stance toward religious freedom is present-day France. (Several other European democracies appear to represent this stance as well.) France forthrightly embraces the idea of a secular state and reads its constitutional protections of religious liberty in this light. Recently, France has banned the wearing in public of the full-face veil, or burqa, by Muslim women.26 The explicit justification for this ban is the value of secularism and community (“fraternity”): the burqa, it is said, publicly distinguishes one religious community from another, separates that community from society at large, and “hides the face” in a way offensive to French communal norms.
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26 Add general cites to France‟s constitutional provisions, court decisions, Burqa ban, etc.
Occasionally, state interests in security, and in prohibiting what some think improper sexism within a religious community, are invoked as well. But the chief justification for the burqa ban remains, simply, secularism and society‟s interest in suppression of offensive expressions of a distinctive, communal religious communal identity.27
This stance – one in which essentially any interest a deliberative political majority thinks important enough to enact into law is sufficient to prevail over a contrary claim of religious free exercise – is not one that truly values religious liberty in any serious sense of the term. It contemplates no sphere of natural right to engage in religious exercise immune from the cognizance of civil government. The extent of religious freedom is purely a function of the degree to which government chooses to grant it. Government may grant such accommodation to religions it thinks harmless to communitarian interests and deny accommodation to religions, or specific practices, it thinks harmful. And the range of what constitutes a cognizable harm to society, permitting suppression specifically of a religious practice, is extraordinarily broad: anything society disapproves of. This is religious freedom in name only – a hollow shell. It is, to use a mathematics term, the “degenerate case” of religious freedom.
Such an approach in practice resembles most closely the pre-liberal approach of religious intolerance, albeit (arguably) in less virulent form. The pre-liberal approach is one of religious intolerance, out of a conviction that religious truth exists, the State knows what that truth it, and competing visions ought not be tolerated. The religious establishment reigns; and free exercise of religion inconsistent with established orthodoxy is forbidden and punished. The post-modern approach is one of religious intolerance, out of a conviction that religious truth does not exist, the State embraces that secular orthodoxy, and competing visions ought not be tolerated. The secular establishment reigns; and free exercise of religion inconsistent with established orthodoxy is – again – forbidden and punished.
Thus the circle is completed. The evolution of progressively different stances toward the notion of religious truth, and freedom to pursue it, yields a “progress” in approaches toward religious freedom that, ironically, eventually returns to where things started.
To reprise: First, religious intolerance out of religious conviction yields to religious tolerance borne of religious conviction but coupled with distrust of government authority. The priority of God‟s commands over Man‟s leads no longer to establishment and compulsion but instead to broader private liberty, as belief in religious truth produces
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27 I owe this illustration in part to my participation in a series of public debates in April 2011, sponsored by the Federalist Society, at Yale Law School, Brown University, and Harvard Law School, between me and distinguished French constitutional lawyer and public figure Mr. Francois-Henry Briard, concerning France‟s burqa ban, which took effect the week of our debates. I thank Mr. Briard for that wonderful opportunity and for a series of enlightening and provocative debates. The position I took in the debates was the same one I take here. I do not mean to disparage France‟s position – at least not unnecessarily – by characterizing it as one of religious intolerance. But I do disagree with it vigorously, and distinguish it sharply from what I think is the (proper) American position as reflected in the original meaning of the First Amendment to the U.S. Constitution.
a public commitment to private freedom to pursue, and act on, what one believes to be religious truth. The freedom to obey God, rather than men, is understood as a natural law right to be free from any government interference with sincere religious exercise.
Next, as society becomes more secular, religious tolerance borne of religious faith gradually yields to the religious tolerance of a less religious society, rooted less in faith in God than faith in liberty as a generic secular proposition. Religious tolerance becomes a function of secular diversity and the perceived value of personal autonomy generally rather than religious conviction specifically. Religious freedom becomes a narrower, less favored freedom: non-establishment is emphasized; free exercise of religious beliefs in particular is harder to sustain when such exercise conflicts with the norms of secular society.
Finally, the residual religious tolerance of a secular modern society yields to the religious intolerance of a secular post-modern society, bred of a different kind of collective certainty about religious propositions: because religious belief and exercise do not reflect anything real, but merely capricious (or delusional) personal preference, there is no reason for the secular State ever to yield to the exercise of religious convictions. The notion of the priority of God over men is a relic of bygone age, a legal fiction, which, even if it were once the foundational premise of religious liberty, is no longer sustainable or sensible. Free exercise of religion, as a specially protected freedom, is an embarrassment. The priority of the secular State – of human society‟s law – necessarily trumps any and all mere private commitments to false beliefs in a (mythical) God.
II. Freedom For Religion: A Theory of Religious Liberty
Which of these four stances provides the correct, or best, perspective for understanding and applying the religion clauses of the First Amendment? Which one has the best claim of representing faithfully (so to speak) the original public meaning of the religion clauses – the objective linguistic meaning the words and phrases would have had, in social and political context, to a reasonably informed speaker and reader of the English language, at the time and in the place they were adopted?
That is the task of constitutional interpretation – identifying the original public meaning of the language of our written Constitution.28 A critical aspect of that task is
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28 The task of constitutional interpretation is, as I have argued and defended elsewhere, the search for the objective, original public meaning of the authoritative written text of a constitutional provision. See Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. 857 (2009); Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution‟s Secret Drafting History, 91 Georgetown L.J. 1113 (2003); Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional? 90 Cal. L. Rev. 291 (2002). The question of whether one likes or should follow and apply as law the meaning of a constitutional provision is a different matter – a hermeneutical issue or political decision. Interpretation precedes application and is a separate enterprise. See Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, supra, at 910-912, 918-919. (The question of whether to apply the original meaning of the text is, I believe, settled by the Constitution‟s text, at least for those who have agreed to exercise authority under it and apply it faithfully as law: they must
reading the language of the Constitution in context. To read the words of the First Amendment religion clauses (or any other constitutional provision) accurately and apply them faithfully, one must understand their meaning in the social, political, and linguistic milieu in which they were written and seek to ascertain the meaning they would have had within the community in which they were adopted. Though the provisions of the Constitution continue to apply today, as a consequence of the explicit or implicit political decision of today‟s society to continue to be bound by a written Constitution adopted (in the main) many years ago, the meaning of those provisions is the objective meaning they had at the time written, not the subjective or anachronistic understanding of any person or actor today, at variance with that original meaning.29
To read the religion clauses in their original sense, and in context, is an effort faithfully to recover original meaning, not to substitute something else for it. It is a search for original linguistic meaning, not an effort to replace it with an imputed “purpose” alien to the words and usages of the time. This is an important distinction. The task of constitutional interpretation is not to identify, or conjure, an abstract “purpose” or “principle” “behind” (or “underlying”) a constitutional provision and then interpret and apply that purpose or principle rather than the words themselves. That is a familiar trick of legal manipulation: reformulate the text as some abstract proposition loosely thought to flow from the text; take that proposition and expound (or expand) upon it; then read that proposition back into the text, substituting the (reformulated) abstract principle for the actual, original linguistic meaning of the text itself, thereby changing (or shading) the meaning of the text.30 That, to repeat, is to play tricks with the text; and that is emphatically not the point of seeking to understand a text‟s context.
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apply the original meaning of the Constitution‟s terms and phrases, in the exercise of their oaths to exercise their governmental authority in conformity with the text as supreme law. See generally idd. at 864-872.)
Some prominent scholars and theorists of the First Amendment religion clauses posit that, to be successful, any interpretation of the religion clauses must be one that does not require acceptance of religious premises – it must be capable of being embraced by believers, atheists, and agnostics alike. See, e.g., Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313, 316-317 (1996). On this view, an interpretation of the religion clauses fails if it requires the reader to presuppose either “that religion is a good thing [or] that faith is bad or subordinate to reason.” Id. at 313.
With all due respect, Professor Laycock is confusing interpretation (exegesis of the meaning of the text) with the “political” decision of what to do with a text – whether and how to appropriate it for contemporary use (often called “hermeneutics”). Laycock‟s proposition is a political one – an argument about what kinds of interpretations are or should be politically acceptable and sustainable. But that should be irrelevant to the question of the original meaning and proper understanding – the correct interpretation – of constitutional language. As I have explained in previous writing, an interpretation need not be “successful” (in this political sense) to be correct as a matter of constitutional interpretation: “it need only be sound as a matter of straightforward, non-result driven, textual interpretation in accordance with the ordinary, common public meaning of the language employed at the time it was adopted and contemporaneous evidence of the original understanding and purpose of the provision. The political task should be to persuade those who find the resulting interpretation unacceptable as a policy matter nonetheless to accept it as a matter of constitutional interpretation, not to contrive an interpretation to suit those who may dislike a provision‟s natural and intended meaning.” Paulsen, Making Sense of Religious Freedom, supra note 1, at 1613-1614 n. 39.
29 Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, supra note xxx, at 858-859; id. at 872-882.
30 Id. at 878-879 (describing this as “Lawyers‟ Tricks 101” and identifying specific practices and practitioners fitting the description).
The point rather, is that correctly understanding the original public meaning of a constitutional text requires reading its words in their original sense and context and avoiding anachronistic readings produced by an interpreter‟s unwitting tendency to read the text through later, modern (or post-modern) eyes. Original-meaning textualism requires reading texts in their original sense. That entails embracing, to a certain extent, the general world-view and premises of the time and place in which they were written and adopted as part of the Constitution, even if – indeed, especially if – such a world-view and premises are not ones common to today.
Through whose eyes, then, should we read the words of the First Amendment religion clauses? To the extent that the First Amendment‟s language reflects a world-view under which religious liberty was understood as a “natural right” – a theological proposition about the origin and nature of certain rights as being bestowed by God – or an “inalienable right” – a proposition of political theory concerning absolute or categorical limitations on the power of the state with respect to rights of such description – that understanding is highly relevant to correct interpretation and application of the religion clauses. It does not substitute for the text; rather, it assists faithful interpretation of the text, illuminating the meaning of its words and concepts (like “free exercise,” “religion,” and “establishment”) and helping resolve ambiguity.
My proposition is that the religion clauses of the First Amendment reflect the second of the views identified above (the one I call the “liberal” view); that they reflect an essentially religious proposition about the possibility of religious truth and the priority of God‟s real commands over the contrary requirements of human authority; that they emerged from a social, religious, and political context that regarded religious freedom, within the broad bounds of plausibly true claims about God, as a natural and inalienable right – a God-given sphere of liberty over which the State has no proper jurisdiction. The religion clauses reflected broad political recognition, too, of the proposition that duties to God are superior to duties to the State and that the State does not necessarily and reliably reflect God‟s will. Such a theory of the religion clauses, I submit, better explains the presence of these provisions in the Constitution than does any competing theory, and also sheds light on perennial questions about how they should be interpreted and applied. In short, understanding religious freedom under the First Amendment as an inalienable natural right of individuals and groups to act in sincere obedience to God‟s commands, rather than submit to man‟s authority, makes more coherent sense of the religion clauses – their text, their history, their underlying logic and structure – than does any other view. 31
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31 As I have written elsewhere:
[T]he religion clauses . . . entail a series of essentially religious premises: God exists; God makes claims on the loyalty of human beings; these claims sometimes require action that may conflict with government regulation; the claims of God are, for the individual believer, prior to and superior in obligation to the claims of the state; and – this is the crucial point – even from the state‟s perspective the claims of the state ordinarily should yield to the claims of God, as sincerely articulated by the religious believer, because the claims of God rightfully have a stronger claim on human loyalty than do the claims of the
It follows that, in a contest between the dictates of faith and the usual dictates of law, the First Amendment‟s very strong presumption is that it is the law that must yield. That was certainly the dominant, eighteenth-century American view of the priority and obligations of religious faith: where in conflict, God‟s commands trump man‟s.32 More to the point, the dominant eighteenth-century constitutional view was that the State is obliged to acknowledge the correctness, in principle, of this description of priorities: for the state, as well as for the church, God‟s commands trump man‟s. Accordingly, the First Amendment “prefer[s] the sincere individual‟s good faith claim of religious conscience to the government‟s claim of secular authority, absent an extraordinary showing of insincere religion or of a threat to state interests of the highest order.”33 (And, as I develop below, the “state interests” that should count as sufficient to prevail over religious liberty reflect essentially religious premises as well: they more or less track the set of extreme circumstances in which we are prepared to bite the bullet and say, in effect, that the claim of religious obligation is simply not a true religious claim – that God did not and does not command or endorse the religious claimant‟s conduct.)34
Except on these essentially religious premises about the reality and priority of God, the Free Exercise Clause really makes no sense. Assume for a moment that there is no God – the stance of the third and fourth positions discussed above. Why on earth would you want to protect religious liberty? There are perhaps some “soft” reasons: Other things being equal, it is nice to let people act in accordance with their (non-harmful) beliefs whenever possible, even if one thinks them silly or misguided.35 Granting a sphere of religious freedom might lessen religious conflict and thereby promote public peace. Finally, religious belief, even if not justified as true belief, still might be useful to society, because religious people tend to be good people.
But as noted above (and in my other writing), these arguments do not provide a sufficient justification for affirmatively protecting the free exercise of religion in particular, and seemingly none at all for strong protection of free exercise in the form of exemption of religious conduct from the usual rules society has seen fit to adopt for its governance generally. If letting people act on their beliefs is, generally, a good and nice thing, it is hard to justify religious liberty specifically as opposed to “liberty” in general – the “free exercise” of everything. The argument is one for libertarianism, not religious
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state. . . . The law thinks that God exists and that He makes demands (rules, duties, prohibitions) on men, and that this reality requires the state to yield.
Paulsen, Making Sense of Religious Freedom, supra note 1 at 1611.
32 Acts 5:29 [verify cite]
33 Paulsen, Making Sense of Religious Freedom, 72 Notre Dame L. Rev. at 1610, supra note xx
34 More on this presently, in Section III‟s discussion of how these general propositions about the meaning of the religion clauses map onto questions of interpretation of the specific phrases of those clauses. See infra at xxxx.
35 One variation of this, suggested by my designated interlocutor at the conference where this article was presented in draft form, Professor Eugene Volokh, is that society as a whole tends to respect people who hold intense, principled commitments and that religious commitments are often of such a nature.
freedom. After all, what‟s so special about religion, if it has no special claim to stating likely ultimate truth, superior in importance to anything the state requires? What‟s so special about religion, if religious devotion is essentially indistinguishable from anything else an individual believes, desires, or is committed to? What justifies religious liberty if the conflicting claim of conscience, for a religious person, is no different in principle from any other claim of non-religious conscience? Put more strongly yet: If religion is in reality delusional, or simply the projection of the individual‟s own views onto a “God” of some sort, why specially protect such delusion? (Indeed, wouldn‟t one want to protect it less strongly than non-delusional secular personal philosophies or strongly held individual views about reality, society, or politics?)
The indulgence of religion as a quaint and good thing quickly runs out of gas. Why would one ever allow religious claims to prevail over the rules of society that were otherwise thought good and important rules? Religious people might (generally) be good people, worthy of respect, but that justification lacks legs. Why, on such a view, would one ever allow religious people to do things one thought were not good? Religious liberty thus becomes a theory of allowing religious people to act in conformity with the State‟s laws and rules – freedom to do things that society already thinks good and proper. Nobody needs a Free Exercise Clause for that. Presumably, the religious adherent‟s conduct has not, in such a situation, brought him into conflict with society‟s rules. A theory of religious liberty sufficient to explain the inclusion of the religion clauses in the Constitution requires some rationale for the decision to disempower government of its usual powers. While it is not impossible that the Framers might have written the Free Exercise Clause merely as a way of forbidding discrimination of religion and protecting the right of religious persons to act in conformity with laws to which they have no objection, this is a rather weak explanation for the provision as written. It is even harder to swallow the proposition that the Framers crafted a provision specifically concerning toleration of religion more for the sake of tolerance in general than for the sake of religion in particular.
Finally, as for the idea that religious liberty tends to preserve peace on earth and goodwill toward all, it is not clear why permitting free exercise of religion is the right route to such an objective. Exercise of religion – actions motivated by religion – is precisely the sort of thing that tends to cause friction in society. Why would one want to protect such conduct if one‟s goal was to keep the peace?36 Wouldn‟t it make more sense to protect simply freedom of belief but not necessarily its exercise? If public peace is the justification for religious liberty, then certainly one would not wish to protect any conduct at variance with society‟s laws. Permitting free exercise of religion at variance with the norms of society simply makes no sense from a keeping-the-peace perspective. And to the extent one is concerned to keep any religion from waging war on the others, why not just have an Establishment Clause barring any winner-takes-all rewards for any religion, and then enforce neutral laws against harm to others? That would probably be enough to give you religious peace. Who needs a Free Exercise Clause? It just mucks things up by arguably permitting some obstreperous conduct. (And if “free exercise” of
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36 Possible cite to Hobbes, The Leviathan.
religion were thought to embrace only things like choice of prayer books, rituals, and church structure, organization and leadership, the term seems an exceedingly poor choice of words. Why not then have used the term “freedom of worship”?)
The third stance – religious tolerance notwithstanding a culture of disbelief – does not well explain, or justify, the inclusion of the religion clauses in our Constitution. Nor does it cohere very well with the language of the provisions themselves. It produces a relatively weak commitment to religious liberty in practice and rapidly collapses into the fourth stance: religious intolerance in a culture of disbelief.37 The mild justifications for religious liberty, under the third view, collapse when one leans on them with the least bit of weight. If God does not exist, or if we no longer are willing to grant as our background premise for interpreting and applying the religion clauses the assumption that God exists, religious liberty as a rule makes less and less and less sense.38
37 The phrase “culture of disbelief” was popularized by Stephen Carter‟s excellent book several years ago:
If the religion clauses are to make sense, they must be understood in the sense and in the social context in which they were originally written. And so we are left with the original, late-eighteenth century reasons for religious freedom. Religious freedom, in the sense of categorical protection of religious conduct from state interference, makes entire sense within an eighteenth century conception which thinks that religion is categorically a good thing; that religion aims at, and left alone may well hit, something true, vital, and of the highest importance; and that, because true religion is intrinsically worth protecting for its own sake, it merits being placed beyond the reach of society‟s usual rules. “In short, we protect the core freedom because we believe it consists of something objectively important and true, and we adopt an overbroad prophylactic rule for the sake of protecting the core freedom,” even if that means putting up with a lot of “religious” detritus in order not to uproot what may end up being the good crop.39
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37 The phrase “culture of disbelief” was popularized by Stephen Carter‟s excellent book several years ago: Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivializes Religious Devotion 23 (1993).
38 Commenting on the draft version of this paper at the Pepperdine conference where it was presented, Professor Volokh noted that the logic of my argument implies that in a “majority irreligious” nation, where a country does not believe in the notion of true religious propositions, it should not protect religious freedom. This is almost right: as a descriptive matter, surely, one would not expect such a society to adopt a constitutional provision generously and genuinely protecting religious freedom and, if it had earlier adopted one, one would not expect such a society to interpret and apply even a generously worded provision in a generous, genuinely religion-protective fashion. (Indeed, this describes many societies‟ religious sociology and attendant treatment of religious liberty, even where written constitutional language is quite religion-protective.) As a normative matter, however, I would not go so far as to say that such a society should not adopt a protection of religious liberty. I simply would not expect them to do so.
But all of that is, or should be, beside the point as concerns the original meaning of the Constitution‟s religion clauses. Even if one might not expect society today to be as favorably disposed toward religion and its exercise as it was more than two hundred years ago, that properly should not affect the meaning of the constitutional provision that was written and adopted more than two hundred years ago. See generally Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?103 Nw. U. L. Rev. at 875-877, 910-914, 916-919. Supra note xx
39 [Consider whether this is repetitive of earlier allusion and whether it should go there, or here.] For a religious analogy, consider Jesus‟s “Parable of the Weeds,” recorded in Matthew 13:24-30: “Jesus told them another parable: „The Kingdom of heaven is like this. A man sowed good seed in his field. One night, when everyone was asleep, an enemy came and sowed weeds among the wheat and went away.
That this was essentially the view of religious freedom that animated the First Amendment religion clauses is fairly clear. The difficulty with such a proposition is not that it is contrary to historical evidence of the original meaning of the First Amendment; on the contrary, as a matter of history it is reasonably definite that the religion clauses reflect precisely such premises.40 The difficulty rather is that such a position feels uncomfortable today. It does not comport with modern sense and modern sensibilities. It feels anachronistic, jarring, a relic of a bygone era. And in a sense it is: The original meaning of the religion clauses, as a protection of freedom specifically for religion – for the benefit of religion, for religious exercise, for religious persons and groups – does not comport with modern perceptions of what makes good constitutional policy sense.
What of it? If the task of constitutional interpretation is to recover the original linguistic sense and meaning of a provision of the Constitution – a disputed proposition to be sure, but one I take as my starting point here41 – then the fact that what is recovered offends modern sensibilities is really beside the point. It might mean that we as a society would not today adopt the substance of the religion clauses as they were written and understood in 1789. It might mean that modern society should, through some suitable authoritative act (of constitutional amendment or perhaps revolution) reject the original meaning of the First Amendment religion clauses as binding law for us today.42 But it
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When the plants grew and the heads of grain began to form, then the weeds showed up. The man‟s servants came to him and said „Sir, it was good seed you sowed in your field; where did the weeds come from?‟ „It was some enemy who this,‟ he answered. „Do you want us to go and pull up the weeds?‟ they asked him. „No,‟ he answered, „because as you gather the weeds you might pull up some of the wheat along with them. Let the wheat and the weeds both grow together until harvest. Then I will tell the harvest workers to pull up the weeds first, tie them in bundles and burn them, and then to gather in the wheat and put it in my barn.‟”
40 The historical case for the religion premises animating the religion clauses has been well made by numerous scholars. One of the leading modern legal scholars of the religion clauses, Professor (and former Judge) Michael McConnell, has set forth at length the religious-premises historical origins of the religion clauses, noting in particular the great relevance of the religious Great Awakening and of resulting religious arguments for religious liberty to understanding the movement for explicit constitutional protection of religious liberty. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410 (1990). Additional and similar such evidence has been marshaled by numerous other scholars, regularly producing the same conclusion over the course of many years. For a sampling of some of the best treatments, see, e.g., Donald Drakeman, Church, State, and Original Intent (2010); Thomas J. Curry, The First Freedom: Church and State in America to the Passage of the First Amendment (1986); Mark DeWolfe Howe, The Garden and the Wilderness (1965). In this respect, history confirms intuition. As historian Mark DeWolfe Howe aptly put it: “Though it would be possible . . . that men who were deeply skeptical in religious matters should demand a constitutional prohibition against abridgments of religious liberty, surely it is more probable that the demand should come from those who themselves were believers.” Id. at 15.
41 For a full-throated defense of original-public-meaning-whole-text-in-context-textualism as the single, correct approach to interpreting the Constitution, see Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? [cited in note xx] 103 Nw. U. L. Rev. 857 (2009). See also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution‟s Secret Drafting History, 91 Geo. L. J. 1113 (2003).
42 The decision to be bound by (or to continue to be bound by) a written constitution is a political decision, entirely separate from the question of what that written constitution means. Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? Supra note 1 at 910-912, 918-919. [Is this repetitive?]
does not alter the meaning of the constitutional provisions that were in fact enacted many years ago.43 To whatever extent those provisions continue to be considered binding as law today, it is the original sense and meaning of those provisions, not modern preferences, that controls.
43 See
III. Implications for Understanding the Religion Clauses of the First Amendment
This view of the reason for religious liberty under the American constitutional system has important implications for understanding the specific provisions of the religion clauses. It “maps” well onto the language of the Free Exercise Clause and the Establishment Clause, helping clarify ambiguities and resolve points of uncertainty or controversy in the constitutional language.
First, it points decisively in the direction of the “pro-exemptions” view of the Free Exercise Clause, by providing a persuasive justification for adopting the religious perspective of the religious adherent, rather than the perspective of the indifferent government bureaucrat, in understanding what constitutes a law “prohibiting the free exercise” of religion.
Second, it points strongly in the direction of deference to the religious adherent‟s sincere understanding of his religious beliefs and what constitutes a burden on their free exercise resulting from a requirement of law preventing, punishing, or penalizing religious conduct.
Third, it points strongly in the direction of a relatively more narrow, specific, traditional, arguably theistic understanding of “religion,” as opposed to looser modern tendencies to treat any and all belief systems comparably. It does so by providing a coherent basis for understanding the original constitutional meaning of “religion” as grounded in a concern for certain sorts of belief systems only, and for the specific and unique type of conflict posed for the religious adherent between the competing claims of God and of secular law.
Fourth, it favors a narrow view of what might constitute sufficiently “compelling” reasons for denying a claim of freedom to engage in religious conduct and supplies a different and ultimately more satisfying justification for such exceptions as grounded not in the ultimate supremacy of the State but in the limits of what claims plausibly may be attributed to the commands of God.
Fifth and finally, it supports a straightforward reading of the Establishment Clause as a cognate provision protecting freedom for religious exercise by prohibiting government coercion or compulsion to engage in such exercise, in part flowing from religious premises that true religious faith can not result from coercion but only from free
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43 See note xx, supra [current ftnt 33, discussing Volokh critique / question / challenge]
inquiry, free persuasion, and freely-formed conviction. The Establishment Clause is not sensibly read, in context, as an “anti-religion” or “freedom from religion” provision designed to extirpate religious exercise, observance, or advocacy from the public civil life of the community. Rather, it is an affirmative protection of religious liberty that complements the Free Exercise Clause by categorically ousting the coercive power of the state in matters of religious exercise. In what follows, I develop each of these points in the context of considering the specific language of the First Amendment religion clauses. The first four points fall under the heading of the Free Exercise Clause, the fifth point under the Establishment Clause.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 4
The final stance brings us full circle: religious intolerance, not because the state believes in God and wishes to establish the One True Faith and suppress all competing notions (the “pre-liberal” view), but religious intolerance because the State disbelieves in God and thus has no use for – and little tolerance of – religious conduct that in any way resists the supposedly more rational, sensible norms the State has adopted as the rules for governing the society in question. Once again, this “post-modern” view proceeds from and succeeds to some of the views of the preceding, “modern” perspective. It simply takes that perspective to a more extreme conclusion. Just as the modern view takes the skepticism of the liberal view seriously, and runs with it – adding modern doubt about religious truth – the post-modern view takes the modern view‟s disbelief in God seriously, and runs with that view. Given the weakness of the conception of religious liberty justified by the modern view, the post-modern perspective simply takes the next logical step and knocks out the last prop sustaining any serious notion of religious liberty. Given that God does not exist, the rationales for religious liberty embraced by the modern view are weak and archaic; better to dispense with them altogether and go straight to the last page of the story. God, if He ever existed, is dead and with him any sensible claim to religious autonomy in contravention of the usual norms of secular society.
This view holds, then, that religious truth does not exist and that it is therefore affirmatively harmful to secular society to permit the free exercise of such views. Whether or not such beliefs and their expression must be tolerated as an aspect of the freedom of speech, the state always has a legitimate interest in suppressing religiously-motivated behaviors in conflict with society‟s laws and rules, whatever they may be. The consequence of this view is an “establishment” of sorts, not of religion, but of secularism – a thoroughly secular State, educational establishment, cultural identity, and system of laws. The free exercise of religion never requires an exemption or immunity from any such law. There may be no “free exercise” at variance with the rules of the secular establishment.
A fair illustration of this post-modern stance toward religious freedom is present-day France. (Several other European democracies appear to represent this stance as well.) France forthrightly embraces the idea of a secular state and reads its constitutional protections of religious liberty in this light. Recently, France has banned the wearing in public of the full-face veil, or burqa, by Muslim women.26 The explicit justification for this ban is the value of secularism and community (“fraternity”): the burqa, it is said, publicly distinguishes one religious community from another, separates that community from society at large, and “hides the face” in a way offensive to French communal norms.
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26 Add general cites to France‟s constitutional provisions, court decisions, Burqa ban, etc.
Occasionally, state interests in security, and in prohibiting what some think improper sexism within a religious community, are invoked as well. But the chief justification for the burqa ban remains, simply, secularism and society‟s interest in suppression of offensive expressions of a distinctive, communal religious communal identity.27
This stance – one in which essentially any interest a deliberative political majority thinks important enough to enact into law is sufficient to prevail over a contrary claim of religious free exercise – is not one that truly values religious liberty in any serious sense of the term. It contemplates no sphere of natural right to engage in religious exercise immune from the cognizance of civil government. The extent of religious freedom is purely a function of the degree to which government chooses to grant it. Government may grant such accommodation to religions it thinks harmless to communitarian interests and deny accommodation to religions, or specific practices, it thinks harmful. And the range of what constitutes a cognizable harm to society, permitting suppression specifically of a religious practice, is extraordinarily broad: anything society disapproves of. This is religious freedom in name only – a hollow shell. It is, to use a mathematics term, the “degenerate case” of religious freedom.
Such an approach in practice resembles most closely the pre-liberal approach of religious intolerance, albeit (arguably) in less virulent form. The pre-liberal approach is one of religious intolerance, out of a conviction that religious truth exists, the State knows what that truth it, and competing visions ought not be tolerated. The religious establishment reigns; and free exercise of religion inconsistent with established orthodoxy is forbidden and punished. The post-modern approach is one of religious intolerance, out of a conviction that religious truth does not exist, the State embraces that secular orthodoxy, and competing visions ought not be tolerated. The secular establishment reigns; and free exercise of religion inconsistent with established orthodoxy is – again – forbidden and punished.
Thus the circle is completed. The evolution of progressively different stances toward the notion of religious truth, and freedom to pursue it, yields a “progress” in approaches toward religious freedom that, ironically, eventually returns to where things started.
To reprise: First, religious intolerance out of religious conviction yields to religious tolerance borne of religious conviction but coupled with distrust of government authority. The priority of God‟s commands over Man‟s leads no longer to establishment and compulsion but instead to broader private liberty, as belief in religious truth produces
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27 I owe this illustration in part to my participation in a series of public debates in April 2011, sponsored by the Federalist Society, at Yale Law School, Brown University, and Harvard Law School, between me and distinguished French constitutional lawyer and public figure Mr. Francois-Henry Briard, concerning France‟s burqa ban, which took effect the week of our debates. I thank Mr. Briard for that wonderful opportunity and for a series of enlightening and provocative debates. The position I took in the debates was the same one I take here. I do not mean to disparage France‟s position – at least not unnecessarily – by characterizing it as one of religious intolerance. But I do disagree with it vigorously, and distinguish it sharply from what I think is the (proper) American position as reflected in the original meaning of the First Amendment to the U.S. Constitution.
a public commitment to private freedom to pursue, and act on, what one believes to be religious truth. The freedom to obey God, rather than men, is understood as a natural law right to be free from any government interference with sincere religious exercise.
Next, as society becomes more secular, religious tolerance borne of religious faith gradually yields to the religious tolerance of a less religious society, rooted less in faith in God than faith in liberty as a generic secular proposition. Religious tolerance becomes a function of secular diversity and the perceived value of personal autonomy generally rather than religious conviction specifically. Religious freedom becomes a narrower, less favored freedom: non-establishment is emphasized; free exercise of religious beliefs in particular is harder to sustain when such exercise conflicts with the norms of secular society.
Finally, the residual religious tolerance of a secular modern society yields to the religious intolerance of a secular post-modern society, bred of a different kind of collective certainty about religious propositions: because religious belief and exercise do not reflect anything real, but merely capricious (or delusional) personal preference, there is no reason for the secular State ever to yield to the exercise of religious convictions. The notion of the priority of God over men is a relic of bygone age, a legal fiction, which, even if it were once the foundational premise of religious liberty, is no longer sustainable or sensible. Free exercise of religion, as a specially protected freedom, is an embarrassment. The priority of the secular State – of human society‟s law – necessarily trumps any and all mere private commitments to false beliefs in a (mythical) God.
II. Freedom For Religion: A Theory of Religious Liberty
Which of these four stances provides the correct, or best, perspective for understanding and applying the religion clauses of the First Amendment? Which one has the best claim of representing faithfully (so to speak) the original public meaning of the religion clauses – the objective linguistic meaning the words and phrases would have had, in social and political context, to a reasonably informed speaker and reader of the English language, at the time and in the place they were adopted?
That is the task of constitutional interpretation – identifying the original public meaning of the language of our written Constitution.28 A critical aspect of that task is
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28 The task of constitutional interpretation is, as I have argued and defended elsewhere, the search for the objective, original public meaning of the authoritative written text of a constitutional provision. See Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. 857 (2009); Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution‟s Secret Drafting History, 91 Georgetown L.J. 1113 (2003); Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional? 90 Cal. L. Rev. 291 (2002). The question of whether one likes or should follow and apply as law the meaning of a constitutional provision is a different matter – a hermeneutical issue or political decision. Interpretation precedes application and is a separate enterprise. See Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, supra, at 910-912, 918-919. (The question of whether to apply the original meaning of the text is, I believe, settled by the Constitution‟s text, at least for those who have agreed to exercise authority under it and apply it faithfully as law: they must
reading the language of the Constitution in context. To read the words of the First Amendment religion clauses (or any other constitutional provision) accurately and apply them faithfully, one must understand their meaning in the social, political, and linguistic milieu in which they were written and seek to ascertain the meaning they would have had within the community in which they were adopted. Though the provisions of the Constitution continue to apply today, as a consequence of the explicit or implicit political decision of today‟s society to continue to be bound by a written Constitution adopted (in the main) many years ago, the meaning of those provisions is the objective meaning they had at the time written, not the subjective or anachronistic understanding of any person or actor today, at variance with that original meaning.29
To read the religion clauses in their original sense, and in context, is an effort faithfully to recover original meaning, not to substitute something else for it. It is a search for original linguistic meaning, not an effort to replace it with an imputed “purpose” alien to the words and usages of the time. This is an important distinction. The task of constitutional interpretation is not to identify, or conjure, an abstract “purpose” or “principle” “behind” (or “underlying”) a constitutional provision and then interpret and apply that purpose or principle rather than the words themselves. That is a familiar trick of legal manipulation: reformulate the text as some abstract proposition loosely thought to flow from the text; take that proposition and expound (or expand) upon it; then read that proposition back into the text, substituting the (reformulated) abstract principle for the actual, original linguistic meaning of the text itself, thereby changing (or shading) the meaning of the text.30 That, to repeat, is to play tricks with the text; and that is emphatically not the point of seeking to understand a text‟s context.
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apply the original meaning of the Constitution‟s terms and phrases, in the exercise of their oaths to exercise their governmental authority in conformity with the text as supreme law. See generally idd. at 864-872.)
Some prominent scholars and theorists of the First Amendment religion clauses posit that, to be successful, any interpretation of the religion clauses must be one that does not require acceptance of religious premises – it must be capable of being embraced by believers, atheists, and agnostics alike. See, e.g., Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313, 316-317 (1996). On this view, an interpretation of the religion clauses fails if it requires the reader to presuppose either “that religion is a good thing [or] that faith is bad or subordinate to reason.” Id. at 313.
With all due respect, Professor Laycock is confusing interpretation (exegesis of the meaning of the text) with the “political” decision of what to do with a text – whether and how to appropriate it for contemporary use (often called “hermeneutics”). Laycock‟s proposition is a political one – an argument about what kinds of interpretations are or should be politically acceptable and sustainable. But that should be irrelevant to the question of the original meaning and proper understanding – the correct interpretation – of constitutional language. As I have explained in previous writing, an interpretation need not be “successful” (in this political sense) to be correct as a matter of constitutional interpretation: “it need only be sound as a matter of straightforward, non-result driven, textual interpretation in accordance with the ordinary, common public meaning of the language employed at the time it was adopted and contemporaneous evidence of the original understanding and purpose of the provision. The political task should be to persuade those who find the resulting interpretation unacceptable as a policy matter nonetheless to accept it as a matter of constitutional interpretation, not to contrive an interpretation to suit those who may dislike a provision‟s natural and intended meaning.” Paulsen, Making Sense of Religious Freedom, supra note 1, at 1613-1614 n. 39.
29 Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, supra note xxx, at 858-859; id. at 872-882.
30 Id. at 878-879 (describing this as “Lawyers‟ Tricks 101” and identifying specific practices and practitioners fitting the description).
The point rather, is that correctly understanding the original public meaning of a constitutional text requires reading its words in their original sense and context and avoiding anachronistic readings produced by an interpreter‟s unwitting tendency to read the text through later, modern (or post-modern) eyes. Original-meaning textualism requires reading texts in their original sense. That entails embracing, to a certain extent, the general world-view and premises of the time and place in which they were written and adopted as part of the Constitution, even if – indeed, especially if – such a world-view and premises are not ones common to today.
Through whose eyes, then, should we read the words of the First Amendment religion clauses? To the extent that the First Amendment‟s language reflects a world-view under which religious liberty was understood as a “natural right” – a theological proposition about the origin and nature of certain rights as being bestowed by God – or an “inalienable right” – a proposition of political theory concerning absolute or categorical limitations on the power of the state with respect to rights of such description – that understanding is highly relevant to correct interpretation and application of the religion clauses. It does not substitute for the text; rather, it assists faithful interpretation of the text, illuminating the meaning of its words and concepts (like “free exercise,” “religion,” and “establishment”) and helping resolve ambiguity.
My proposition is that the religion clauses of the First Amendment reflect the second of the views identified above (the one I call the “liberal” view); that they reflect an essentially religious proposition about the possibility of religious truth and the priority of God‟s real commands over the contrary requirements of human authority; that they emerged from a social, religious, and political context that regarded religious freedom, within the broad bounds of plausibly true claims about God, as a natural and inalienable right – a God-given sphere of liberty over which the State has no proper jurisdiction. The religion clauses reflected broad political recognition, too, of the proposition that duties to God are superior to duties to the State and that the State does not necessarily and reliably reflect God‟s will. Such a theory of the religion clauses, I submit, better explains the presence of these provisions in the Constitution than does any competing theory, and also sheds light on perennial questions about how they should be interpreted and applied. In short, understanding religious freedom under the First Amendment as an inalienable natural right of individuals and groups to act in sincere obedience to God‟s commands, rather than submit to man‟s authority, makes more coherent sense of the religion clauses – their text, their history, their underlying logic and structure – than does any other view. 31
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31 As I have written elsewhere:
[T]he religion clauses . . . entail a series of essentially religious premises: God exists; God makes claims on the loyalty of human beings; these claims sometimes require action that may conflict with government regulation; the claims of God are, for the individual believer, prior to and superior in obligation to the claims of the state; and – this is the crucial point – even from the state‟s perspective the claims of the state ordinarily should yield to the claims of God, as sincerely articulated by the religious believer, because the claims of God rightfully have a stronger claim on human loyalty than do the claims of the
It follows that, in a contest between the dictates of faith and the usual dictates of law, the First Amendment‟s very strong presumption is that it is the law that must yield. That was certainly the dominant, eighteenth-century American view of the priority and obligations of religious faith: where in conflict, God‟s commands trump man‟s.32 More to the point, the dominant eighteenth-century constitutional view was that the State is obliged to acknowledge the correctness, in principle, of this description of priorities: for the state, as well as for the church, God‟s commands trump man‟s. Accordingly, the First Amendment “prefer[s] the sincere individual‟s good faith claim of religious conscience to the government‟s claim of secular authority, absent an extraordinary showing of insincere religion or of a threat to state interests of the highest order.”33 (And, as I develop below, the “state interests” that should count as sufficient to prevail over religious liberty reflect essentially religious premises as well: they more or less track the set of extreme circumstances in which we are prepared to bite the bullet and say, in effect, that the claim of religious obligation is simply not a true religious claim – that God did not and does not command or endorse the religious claimant‟s conduct.)34
Except on these essentially religious premises about the reality and priority of God, the Free Exercise Clause really makes no sense. Assume for a moment that there is no God – the stance of the third and fourth positions discussed above. Why on earth would you want to protect religious liberty? There are perhaps some “soft” reasons: Other things being equal, it is nice to let people act in accordance with their (non-harmful) beliefs whenever possible, even if one thinks them silly or misguided.35 Granting a sphere of religious freedom might lessen religious conflict and thereby promote public peace. Finally, religious belief, even if not justified as true belief, still might be useful to society, because religious people tend to be good people.
But as noted above (and in my other writing), these arguments do not provide a sufficient justification for affirmatively protecting the free exercise of religion in particular, and seemingly none at all for strong protection of free exercise in the form of exemption of religious conduct from the usual rules society has seen fit to adopt for its governance generally. If letting people act on their beliefs is, generally, a good and nice thing, it is hard to justify religious liberty specifically as opposed to “liberty” in general – the “free exercise” of everything. The argument is one for libertarianism, not religious
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state. . . . The law thinks that God exists and that He makes demands (rules, duties, prohibitions) on men, and that this reality requires the state to yield.
Paulsen, Making Sense of Religious Freedom, supra note 1 at 1611.
32 Acts 5:29 [verify cite]
33 Paulsen, Making Sense of Religious Freedom, 72 Notre Dame L. Rev. at 1610, supra note xx
34 More on this presently, in Section III‟s discussion of how these general propositions about the meaning of the religion clauses map onto questions of interpretation of the specific phrases of those clauses. See infra at xxxx.
35 One variation of this, suggested by my designated interlocutor at the conference where this article was presented in draft form, Professor Eugene Volokh, is that society as a whole tends to respect people who hold intense, principled commitments and that religious commitments are often of such a nature.
freedom. After all, what‟s so special about religion, if it has no special claim to stating likely ultimate truth, superior in importance to anything the state requires? What‟s so special about religion, if religious devotion is essentially indistinguishable from anything else an individual believes, desires, or is committed to? What justifies religious liberty if the conflicting claim of conscience, for a religious person, is no different in principle from any other claim of non-religious conscience? Put more strongly yet: If religion is in reality delusional, or simply the projection of the individual‟s own views onto a “God” of some sort, why specially protect such delusion? (Indeed, wouldn‟t one want to protect it less strongly than non-delusional secular personal philosophies or strongly held individual views about reality, society, or politics?)
The indulgence of religion as a quaint and good thing quickly runs out of gas. Why would one ever allow religious claims to prevail over the rules of society that were otherwise thought good and important rules? Religious people might (generally) be good people, worthy of respect, but that justification lacks legs. Why, on such a view, would one ever allow religious people to do things one thought were not good? Religious liberty thus becomes a theory of allowing religious people to act in conformity with the State‟s laws and rules – freedom to do things that society already thinks good and proper. Nobody needs a Free Exercise Clause for that. Presumably, the religious adherent‟s conduct has not, in such a situation, brought him into conflict with society‟s rules. A theory of religious liberty sufficient to explain the inclusion of the religion clauses in the Constitution requires some rationale for the decision to disempower government of its usual powers. While it is not impossible that the Framers might have written the Free Exercise Clause merely as a way of forbidding discrimination of religion and protecting the right of religious persons to act in conformity with laws to which they have no objection, this is a rather weak explanation for the provision as written. It is even harder to swallow the proposition that the Framers crafted a provision specifically concerning toleration of religion more for the sake of tolerance in general than for the sake of religion in particular.
Finally, as for the idea that religious liberty tends to preserve peace on earth and goodwill toward all, it is not clear why permitting free exercise of religion is the right route to such an objective. Exercise of religion – actions motivated by religion – is precisely the sort of thing that tends to cause friction in society. Why would one want to protect such conduct if one‟s goal was to keep the peace?36 Wouldn‟t it make more sense to protect simply freedom of belief but not necessarily its exercise? If public peace is the justification for religious liberty, then certainly one would not wish to protect any conduct at variance with society‟s laws. Permitting free exercise of religion at variance with the norms of society simply makes no sense from a keeping-the-peace perspective. And to the extent one is concerned to keep any religion from waging war on the others, why not just have an Establishment Clause barring any winner-takes-all rewards for any religion, and then enforce neutral laws against harm to others? That would probably be enough to give you religious peace. Who needs a Free Exercise Clause? It just mucks things up by arguably permitting some obstreperous conduct. (And if “free exercise” of
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36 Possible cite to Hobbes, The Leviathan.
religion were thought to embrace only things like choice of prayer books, rituals, and church structure, organization and leadership, the term seems an exceedingly poor choice of words. Why not then have used the term “freedom of worship”?)
The third stance – religious tolerance notwithstanding a culture of disbelief – does not well explain, or justify, the inclusion of the religion clauses in our Constitution. Nor does it cohere very well with the language of the provisions themselves. It produces a relatively weak commitment to religious liberty in practice and rapidly collapses into the fourth stance: religious intolerance in a culture of disbelief.37 The mild justifications for religious liberty, under the third view, collapse when one leans on them with the least bit of weight. If God does not exist, or if we no longer are willing to grant as our background premise for interpreting and applying the religion clauses the assumption that God exists, religious liberty as a rule makes less and less and less sense.38
37 The phrase “culture of disbelief” was popularized by Stephen Carter‟s excellent book several years ago:
If the religion clauses are to make sense, they must be understood in the sense and in the social context in which they were originally written. And so we are left with the original, late-eighteenth century reasons for religious freedom. Religious freedom, in the sense of categorical protection of religious conduct from state interference, makes entire sense within an eighteenth century conception which thinks that religion is categorically a good thing; that religion aims at, and left alone may well hit, something true, vital, and of the highest importance; and that, because true religion is intrinsically worth protecting for its own sake, it merits being placed beyond the reach of society‟s usual rules. “In short, we protect the core freedom because we believe it consists of something objectively important and true, and we adopt an overbroad prophylactic rule for the sake of protecting the core freedom,” even if that means putting up with a lot of “religious” detritus in order not to uproot what may end up being the good crop.39
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37 The phrase “culture of disbelief” was popularized by Stephen Carter‟s excellent book several years ago: Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivializes Religious Devotion 23 (1993).
38 Commenting on the draft version of this paper at the Pepperdine conference where it was presented, Professor Volokh noted that the logic of my argument implies that in a “majority irreligious” nation, where a country does not believe in the notion of true religious propositions, it should not protect religious freedom. This is almost right: as a descriptive matter, surely, one would not expect such a society to adopt a constitutional provision generously and genuinely protecting religious freedom and, if it had earlier adopted one, one would not expect such a society to interpret and apply even a generously worded provision in a generous, genuinely religion-protective fashion. (Indeed, this describes many societies‟ religious sociology and attendant treatment of religious liberty, even where written constitutional language is quite religion-protective.) As a normative matter, however, I would not go so far as to say that such a society should not adopt a protection of religious liberty. I simply would not expect them to do so.
But all of that is, or should be, beside the point as concerns the original meaning of the Constitution‟s religion clauses. Even if one might not expect society today to be as favorably disposed toward religion and its exercise as it was more than two hundred years ago, that properly should not affect the meaning of the constitutional provision that was written and adopted more than two hundred years ago. See generally Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?103 Nw. U. L. Rev. at 875-877, 910-914, 916-919. Supra note xx
39 [Consider whether this is repetitive of earlier allusion and whether it should go there, or here.] For a religious analogy, consider Jesus‟s “Parable of the Weeds,” recorded in Matthew 13:24-30: “Jesus told them another parable: „The Kingdom of heaven is like this. A man sowed good seed in his field. One night, when everyone was asleep, an enemy came and sowed weeds among the wheat and went away.
That this was essentially the view of religious freedom that animated the First Amendment religion clauses is fairly clear. The difficulty with such a proposition is not that it is contrary to historical evidence of the original meaning of the First Amendment; on the contrary, as a matter of history it is reasonably definite that the religion clauses reflect precisely such premises.40 The difficulty rather is that such a position feels uncomfortable today. It does not comport with modern sense and modern sensibilities. It feels anachronistic, jarring, a relic of a bygone era. And in a sense it is: The original meaning of the religion clauses, as a protection of freedom specifically for religion – for the benefit of religion, for religious exercise, for religious persons and groups – does not comport with modern perceptions of what makes good constitutional policy sense.
What of it? If the task of constitutional interpretation is to recover the original linguistic sense and meaning of a provision of the Constitution – a disputed proposition to be sure, but one I take as my starting point here41 – then the fact that what is recovered offends modern sensibilities is really beside the point. It might mean that we as a society would not today adopt the substance of the religion clauses as they were written and understood in 1789. It might mean that modern society should, through some suitable authoritative act (of constitutional amendment or perhaps revolution) reject the original meaning of the First Amendment religion clauses as binding law for us today.42 But it
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When the plants grew and the heads of grain began to form, then the weeds showed up. The man‟s servants came to him and said „Sir, it was good seed you sowed in your field; where did the weeds come from?‟ „It was some enemy who this,‟ he answered. „Do you want us to go and pull up the weeds?‟ they asked him. „No,‟ he answered, „because as you gather the weeds you might pull up some of the wheat along with them. Let the wheat and the weeds both grow together until harvest. Then I will tell the harvest workers to pull up the weeds first, tie them in bundles and burn them, and then to gather in the wheat and put it in my barn.‟”
40 The historical case for the religion premises animating the religion clauses has been well made by numerous scholars. One of the leading modern legal scholars of the religion clauses, Professor (and former Judge) Michael McConnell, has set forth at length the religious-premises historical origins of the religion clauses, noting in particular the great relevance of the religious Great Awakening and of resulting religious arguments for religious liberty to understanding the movement for explicit constitutional protection of religious liberty. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410 (1990). Additional and similar such evidence has been marshaled by numerous other scholars, regularly producing the same conclusion over the course of many years. For a sampling of some of the best treatments, see, e.g., Donald Drakeman, Church, State, and Original Intent (2010); Thomas J. Curry, The First Freedom: Church and State in America to the Passage of the First Amendment (1986); Mark DeWolfe Howe, The Garden and the Wilderness (1965). In this respect, history confirms intuition. As historian Mark DeWolfe Howe aptly put it: “Though it would be possible . . . that men who were deeply skeptical in religious matters should demand a constitutional prohibition against abridgments of religious liberty, surely it is more probable that the demand should come from those who themselves were believers.” Id. at 15.
41 For a full-throated defense of original-public-meaning-whole-text-in-context-textualism as the single, correct approach to interpreting the Constitution, see Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? [cited in note xx] 103 Nw. U. L. Rev. 857 (2009). See also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution‟s Secret Drafting History, 91 Geo. L. J. 1113 (2003).
42 The decision to be bound by (or to continue to be bound by) a written constitution is a political decision, entirely separate from the question of what that written constitution means. Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? Supra note 1 at 910-912, 918-919. [Is this repetitive?]
does not alter the meaning of the constitutional provisions that were in fact enacted many years ago.43 To whatever extent those provisions continue to be considered binding as law today, it is the original sense and meaning of those provisions, not modern preferences, that controls.
43 See
III. Implications for Understanding the Religion Clauses of the First Amendment
This view of the reason for religious liberty under the American constitutional system has important implications for understanding the specific provisions of the religion clauses. It “maps” well onto the language of the Free Exercise Clause and the Establishment Clause, helping clarify ambiguities and resolve points of uncertainty or controversy in the constitutional language.
First, it points decisively in the direction of the “pro-exemptions” view of the Free Exercise Clause, by providing a persuasive justification for adopting the religious perspective of the religious adherent, rather than the perspective of the indifferent government bureaucrat, in understanding what constitutes a law “prohibiting the free exercise” of religion.
Second, it points strongly in the direction of deference to the religious adherent‟s sincere understanding of his religious beliefs and what constitutes a burden on their free exercise resulting from a requirement of law preventing, punishing, or penalizing religious conduct.
Third, it points strongly in the direction of a relatively more narrow, specific, traditional, arguably theistic understanding of “religion,” as opposed to looser modern tendencies to treat any and all belief systems comparably. It does so by providing a coherent basis for understanding the original constitutional meaning of “religion” as grounded in a concern for certain sorts of belief systems only, and for the specific and unique type of conflict posed for the religious adherent between the competing claims of God and of secular law.
Fourth, it favors a narrow view of what might constitute sufficiently “compelling” reasons for denying a claim of freedom to engage in religious conduct and supplies a different and ultimately more satisfying justification for such exceptions as grounded not in the ultimate supremacy of the State but in the limits of what claims plausibly may be attributed to the commands of God.
Fifth and finally, it supports a straightforward reading of the Establishment Clause as a cognate provision protecting freedom for religious exercise by prohibiting government coercion or compulsion to engage in such exercise, in part flowing from religious premises that true religious faith can not result from coercion but only from free
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43 See note xx, supra [current ftnt 33, discussing Volokh critique / question / challenge]
inquiry, free persuasion, and freely-formed conviction. The Establishment Clause is not sensibly read, in context, as an “anti-religion” or “freedom from religion” provision designed to extirpate religious exercise, observance, or advocacy from the public civil life of the community. Rather, it is an affirmative protection of religious liberty that complements the Free Exercise Clause by categorically ousting the coercive power of the state in matters of religious exercise. In what follows, I develop each of these points in the context of considering the specific language of the First Amendment religion clauses. The first four points fall under the heading of the Free Exercise Clause, the fifth point under the Establishment Clause.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 4
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