In response to: Reimagining Religion’s Distinctiveness in American Law
Many of my undergraduate students have trouble understanding the threat that religion might pose to the state.
Often when teaching the Investiture Controversy, the 11th century contest between Pope Gregory VII and King Henry IV, the Holy Roman Emperor, over the appointment of bishops, I put to them the anachronistic question of whether the Pope has more power than the President of the United States.
Most think the answer obvious. Since the President is the leader of the free world, presides over one of the most powerful nations in human history, and is the commander-in-chief of arguably the most potent military in the world, POTUS is without question more powerful than a bishop who, no matter how impressive St. Peter’s Basilica or the Vatican’s galleries are, only rules over 109 acres within the city of Rome.
When I ask these same students about the Pope’s powers in holding the keys of the kingdom—the ones mentioned in Matthew 16:18 that teach the Pope’s power to open and close the gates of heaven—they begin to see the point of comparing the relative powers of POTUS and the papacy. The former may have access to missile-tipped drones and battleships, but he has no say on the eternal life of Americans. Conversely, if the Pope can depose a President the way Gregory VII deposed Henry IV by virtue of his spiritual powers, the papacy has authority that seemingly trumps any civil ruler.
This potential rivalry was, in fact, partly responsible for opposition in the United States to electing Roman Catholic President, which cropped up in 1928 with Al Smith and in 1960 with John F. Kennedy. Imagine the constitutional crisis that might ensue if a Pope deposed a sitting President. It is a potential crisis way beyond even the one Aaron Sorkin imagined for Jed Bartlet, the Roman Catholic commander-in-chief in West Wing who hid his multiple sclerosis from voters and the White House staff.
This rivalry between temporal and spiritual authorities that flared in the Christian East and Europe, between the Emperor Constantine’s 4th century conversion to Christianity and the late 18th century separation of church and state in the American and French Revolutions, was a chief factor in the guaranteeing of religious freedom in the Constitution’s Bill of Rights. Not only had papal power been a threat to European monarchs and emperors, but the system of ecclesiastical establishments throughout Europe and the North American British colonies had proven to be more of a burden than an aid to effective government.
Established churches not only provoked the resentment of members of dissenting churches, it also removed from the pool of civil servants a large body of talented persons. The best solution during the creation of the federal government was to eliminate the question of religion entirely. The United States at the national level would have no established church and would bar any religious requirement for holding federal office.
And so, seemingly in one fell swoop, the church-state rivalry that had animated so much of the West’s religious history vanished. No longer would the state interfere in the church’s affairs, nor would the church have claims upon the state’s business. The First Amendment specifically prohibits the legislature from showing favoritism in the religious realm. It must not take sides in the religious diversity of the American people, either by tilting toward one communion (laws “respecting an establishment of religion”) or by restricting religious observance (the “free exercise” of faith).
This historic conflict between Christianity and governments in the West is largely absent from Kathleen A. Brady’s Liberty Forum essay on behalf of “religion’s distinctiveness” and the protection faith receives in the American legal system. For her, the First Amendment protects “religious belief and practice from the dangers of state intrusion” as well as the “state and its institutions from the dangers of sectarian control.” It also protects religious minorities from tyrannical majorities. That description is largely accurate even if it lacks the historical drama out of which the separation of church and state emerged.
Where Professor Brady’s account of the First Amendment subtly transforms the discussion—and it is a shift that certainly reflects the contemporary state of the question—is on the state’s protection of religion. Brady asserts that current legal theories assume of religion a uniqueness that deserves legal protection from government. She acknowledges that this has increasingly become a challenge since it seems to favor believers over nonbelievers (“nonreligious belief systems”), a preference at odds with the ideal of equality before the law.
This legal practice of protecting religion from the state, it should be noted, is far removed from the history of church-state relations in the West. The idea that religious beliefs and practices needed protection from civil authorities was foreign to the European experience. Yes, religious dissenters desired protection from the Christian state, and clergy in state churches sometimes desired less intrusive relations with the state. But the idea of protecting religion from a secular government was unimaginable because religion was part and parcel of Europe’s political and social order.
In other words, the idea that Timothy Dolan, Archbishop of New York, would need protection from Andrew Cuomo, New York’s Governor, is not altogether obvious. The corporate papers, property holdings, doctrinal teachings, and liturgical practices of the Archdiocese of New York are so legally entrenched that the notion of religion’s needing protection from the American government seems overwrought.
Even so, religious freedom is an idea and slogan that provokes headlines and agitates voters. The reach of government through regulations and social services has become so formidable that the powers of the United States seem to the religious to be truly threatening. For instance, Christian schools need to comply with specific state and federal guidelines for curricula and student services thanks at least to the authority conferred on accrediting agencies. So too, faith-based medical institutions confront demands for procedures at odds with church teachings on condition of federal funding. And Americans are well aware of debates over gay marriage and its legal outcomes that apparently force Christian business persons to provide services that are at odds with owners’ consciences. In such instances, the idea of protecting religion from the state makes perfect sense.
Professor Brady defends the unique status of legal protections of religion by explaining the value that faith adds to society. For instance, she appeals to James Madison’s reflections on religion’s uniqueness when he explained why faith took precedence over state law. It is “the duty of every individual to worship the Creator as his conscience directs,” he said, and this duty trumps “the claims of Civil Society.” Religion, in Brady’s words, is “a relationship between persons and the ultimate reality or power that grounds everything that exists.”
Why the state has an interest in creating space for people who ask the big questions—“From whence do we come? What is the source of our lives and all that is, and how does the answer to this question inform the answers to other questions about human purposes and goals?”—is not altogether clear except that people who reflect on such matters may wind up making thoughtful interventions in civil society. That is, if they do not opt for Socrates’ precedent of teaching dangerous truths to the city’s youth.
Although Professor Brady’s concern is to highlight what sets religion apart from firmly held secular convictions, she only comes round to Madison and the Founders’ main brief on behalf of religion later in her essay. When she writes that religious faith “also generates ethical commitments that support public virtue and the formation of public values,” she echoes the conviction that distinguished the above-mentioned revolutions, American and French, from one another. Where the French were decidedly anticlerical, the American Founders were generally sympathetic to nonsectarian religion because their new republic needed virtuous citizens. They believed that a free society would fail without responsible members and that religion was one of the primary sources of morality. In which case, policies that allowed churches to flourish— religious freedom—would conceivably have a positive effect.
Having citizens who paid their bills, stayed married, avoided alcoholic excess, and were respectful of public authorities was obviously desirable in the formation of a new country. It is not so apparently desirable today. For instance, the baker who refuses to make a cake for a gay marriage reception is also likely someone who is a faithful spouse, responsible parent, dutiful taxpayer, and even patriotic American. The religious reasons for not baking the cake are also likely at work in the baker’s motivation to be a good wife, mother, and citizen. Yet, in today’s contests over minority rights, religion looks like a threat to a just and equitable society and so something that the state may seek to restrain.
The difficulty here—and liberal society is by no means consistent about this—is that religion has shifted, in the American experience, from a corporate identity to a personal quest for meaning. Rather than faith being part of belonging to a religious institution and so including certain doctrinal convictions (belief in one God) and behavioral obligations (refraining from employment on Sunday), the courts’ understanding of religion leans heavily on notions of conscience (even Madison illustrates this). As such, religion is a deeply personal matter and the state should stay out of such private arenas.
Professor Bradley’s attempt to define religion very much follows in this trajectory, and she devotes several paragraphs to questions of conscience. The high stakes of individual conscience are not simply the products of the courts or the academy. Many Christians themselves also regard religion as a deeply personal matter. The revivals of the First Great Awakening during the 1740s promoted the importance of religious experience in ways that made church membership and corporate rites far less important for being truly religious. At the same time, the religious Right for the last three decades or so has taken a page from black, gay, and feminist political activists by arguing that faith is so comprehensive in its claims on the believer that he or she can never leave faith behind when entering the public square.
This notion of faith as deeply personal, rather than corporate or institutional, raises a great problem for liberal society. If faith informs everything I do, then paying taxes or baking a cake or sending my children to a public school may violate my conscience. And if a majority of the citizens have such sensitive consciences, conducting the affairs of government may become impossible. To be sure, the mainstream Progressive narrative of U.S. history includes instances where heroic stands for conscience based on faith—the Civil Rights movement—emerged as valuable contributions to a free society. By the same token, while many times religion coincided with the advancement of certain liberal goals, it has also motivated believers to protest existing norms and so has divided society along religious lines.
To illustrate the difference between religion personally conceived and corporately conceived, consider the membership vows required by my own denomination, the Orthodox Presbyterian Church. After being examined by a local congregation’s officers, a person needs to answer in the affirmative the following five questions:
- Do you believe the Bible, consisting of the Old and New Testaments, to be the Word of God, and its doctrine of salvation to be the perfect and only true doctrine of salvation?
- Do you believe in one living and true God, in whom eternally there are three distinct persons—God the Father, God the Son, and God the Holy Spirit—who are the same in being and equal in power and glory, and that Jesus Christ is God the Son, come in the flesh?
- Do you confess that because of your sinfulness you abhor and humble yourself before God, that you repent of your sin, and that you trust for salvation not in yourself but in Jesus Christ alone?
- Do you acknowledge Jesus Christ as your sovereign Lord, and do you promise that, in reliance on the grace of God, you will serve him with all that is in you, forsake the world, resist the devil, put to death your sinful deeds and desires, and lead a godly life?
- Do you promise to participate faithfully in this church’s worship and service, to submit in the Lord to its government, and to heed its discipline, even in case you should be found delinquent in doctrine or life?
For this particular denomination, these are the chief parts of being a Christian. None of these questions pertains directly to business transactions, curricular matters, or medical procedures. Of course, the person who takes these vows might have firm convictions about how she should run her business, what school her children should attend, or what procedures hospitals should provide. Given that these other matters are incidental to requirements for institutional membership, our Orthodox Presbyterian should perhaps be less likely to invoke freedom of conscience if she ends up disagreeing with the decisions of local, state, or federal authorities about them. She might simply regard the friction that comes with a free and diverse society as the cost of doing business.
Part of the problem here may involve the old Burkean point about the value of mediating institutions. Those agencies of civil society that buffer persons from government can potentially pose challenges to the smooth operation of a state, but they also perform any number of services that add up to a society comprised of persons who place few, or at least fewer, demands on governmental agencies. Over the course of the 20th century, as the federal government’s power expanded, many institutions of civil society lost power even as the liberty of individuals increased. That process is no less evident in American religion, though the state’s hand in the loss of religious institutions’ power has not been as noticeable as it has in family life or educational or private associations.
Even so, the value of churches and synagogues in identifying and defining religion—as opposed to leaving it to individual conscience—may clear a path through the current debates that surround religious freedom and governmental protection of faith. If the state protected corporate expressions of religion more than personal ones, negotiating the interests of government and religion would likely be less litigious than it is now. To be sure, many Americans would object to legal or policy patterns that granted to pastors, priests, and rabbis greater authority in resolving matters of conscience. But without some mediating institution to inform and guide religious life, believers may be inclined to see religious liberty narrowly if only because they seemingly lack non-state institutions for resolving cases of conscience.
If the choice were between religious institutions or potentially outraged believers, the state might prefer to negotiate with churches and synagogues instead of with persons with easily offended consciences.
Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise…
I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties. Professor Hart…