The Fate of American Religious Freedom: An Interview with Legal Scholar Steven D. Smith

By | January 13, 2015

(AP Photo/Matt Rourke)

(AP Photo/Matt Rourke)

In the wake of important judicial rulings on culture war issues such as same-sex marriage and contraception, “religious freedom” has emerged as one of the most hotly contested terms in American political discourse. As public opinion on these issues has liberalized, many conservatives have embraced religious freedom as a safe vantage from which to legislate. In response, many progressives cite the secularity of the United States Constitution to argue against overtly religious policy.

Steven D. Smith is the Warren Distinguished Professor of Law at the University of San Diego. His most recent book, The Rise and Decline of American Religious Freedom, advocates a return to what he calls “the American settlement”—an arrangement under which the constitution is read to be neither religious nor secular, but rather open to the best argument of either persuasion. Eric C. Miller spoke with Smith about his project.

R&P: In recent years, scholars of law and history have published a lot of interesting books about religious freedom in America. Your book is on the “rise and decline” of religious freedom, and I’ve read others on “the myth,” “the tragedy,” and “the impossibility” of religious freedom. Why is there currently so much interest in this subject, and why is it cast in such dramatic terms?

SS: I think there are two main reasons (which may ultimately come down to the same reason) for the interest, and for the woeful tone. One reason is that religion is at the core of the culture wars, which seem to be intensifying. A stark manifestation of this fact was a finding in the opinion of Judge Vaughn Walker, the federal district judge who invalidated California’s Proposition 8. The judge found that something like 85 percent of voters who attended church regularly voted in favor of the measure—in favor of traditional marriage, basically—while close to 85 percent of people who never attend church voted against it. Given divergences like this, people on the “progressive” side of the culture wars often come to view religion as the enemy. And they may come to see religious freedom as empowering that enemy.

Which leads to the second reason for the interest, and the apocalyptic tone: the traditional commitment to religious freedom seems more embattled today, and more vulnerable, than at any time in the modern period. Just a few years ago it was liberals (like Justice Brennan) who were the champions of religious freedom; today they are often opponents or skeptics (as the recent furor over the Hobby Lobby decision reflected). And the dominant opinion among legal scholars who work in this area seems to be that special constitutional protection for religious freedom is a product of contingent features of the founding period but is not something that could be justified today.

My book tries to offer some background for and insight into these developments. I suggest that the traditional “American settlement” with respect to religious pluralism centered on a principle of open contestation under which both providentialist and more secularist interpretations of the Republic had an assured place in the public square. This settlement was theoretically inelegant and sometimes messy in practice, but it allowed for peaceful engagement—and for an expansion of religious pluralism.

Beginning with the school prayer decisions in the early 1960s, however, the Supreme Court in effect repudiated this settlement, elevated a secularist interpretation to the status of constitutional orthodoxy, and demoted the providentialist view to the position of constitutional heresy.

One consequence of this repudiation was a sort of revival of the old “wars of religion” (in a less violent form, thankfully). The older battle lines had been between Catholics and Protestants; the newer division is between secularists and providentialists. A second consequence has been that the classic justifications for religious freedom, as articulated by Locke, Jefferson, Madison and others, were rendered inadmissible, because they were all theological in character. As a result, the commitment to religious freedom comes to be less defensible.

R&P: I really enjoyed your book, in part because it challenged some of my progressive assumptions about the American settlement. But it seems to me that much of the concern—in the culture war realm, anyway—focuses on exception rather than rule. Religious people remain perfectly free to practice their faith in countless ways without any governmental interference. But in a few cases—like Prop 8 and Hobby Lobby—religious citizens have claimed the right to impose their beliefs on people who don’t share them. Isn’t it fair to draw a line here?

SS: I have to say, Eric, that the all-too-familiar objection to “imposing beliefs [or values] on others” is in my view a rhetorically potent but question-begging and wholly unhelpful way of addressing these kinds of conflicts. That is because the description equally applies to both sides of the controversies.

You mention the Hobby Lobby controversy. Hobby Lobby’s owners, the Green family, evidently believe that abortion is a sin, and that it would be a violation of their Christian commitments for them to facilitate that sin by providing insurance that covers some prescriptions they regard as abortifacients. If the Greens are excused from providing such coverage, you can say if you like that they are “imposing their beliefs” on their employees. (Although I confess that this description seems to me a bit strained, and tendentious: no employees are required to believe anything, or to forgo abortion or contraception.) Conversely, if the government forces the Greens to provide such coverage, this is clearly a case of the government imposing some set of (to them) alien values or requirements. “Imposition” occurs either way.

As it happens, in this particular instance the burden of the imposition on the Greens seems considerably more severe than the burden of an exemption on the employees. If an exemption is given, the burden on a Hobby Lobby employee who wants or needs contraceptives is that she will have to obtain them in some other way, or else try to find another employer. That is a burden, to be sure. Still, contraceptives are readily available, and there are lots of employers in America. If an exemption is denied, conversely, the burden on the Greens (if they remain faithful to their convictions) is, basically, that they will probably have to shut down their business.

Of course, you may not share the Greens’ beliefs—not many people today do—and so you may not sympathize with them. But, seriously, which burden seems more onerous?

In Rise and Decline I suggest that our contemporary approach to religious pluralism might accurately be characterized as one of denial (or self-deception). We intone, over and over again, that government must be “neutral” toward all religions. And then we desperately try to ignore or obfuscate the fact that in cases of genuine conflict, there simply is no meaningfully neutral position.

In this vein, a pervasive strategy is to criticize your opponent’s position for departing from neutrality (as it will, inevitably) while distracting attention (other people’s and your own) away from the fact that your own position is equally a departure from neutrality. There are various techniques for accomplishing this. But the language of “imposing values on others” is one very common (and often rhetorically effective) way of practicing this sort of deception or self-deception.

R&P: I’m not quite ready to concede the point, but I think I can concede this example and still argue that, in the vast majority of cases, the government does not interfere in religious practice. High profile claims of interference always seem to coincide with the interests of conservative politics, which makes folks like me a little cynical. But here’s a question: if we endorse an environment of open contestation, rather than enforced secularism, how should controversies like these be decided? Since Prop 8 lost and Hobby Lobby won, are we sort of there already?

SS: It would be a mistake, I think, to suppose that important free exercise claims always arise on the conservative side. Protecting the right of a Muslim prisoner to wear a beard—which is the issue before the Supreme Court this term—isn’t exactly a conservative cause. But you’re right: the most visible free exercise cases in recent years—such as Hobby Lobby—have involved claims by traditionalists or religious conservatives.

This fact might help explain why liberals have largely shifted their attitudes toward religious freedom. You mention a cynical attitude; a cynical suggestion from the other direction might say that from John Stuart Mill through Justice Brennan, liberals were the great champions of religious freedom as long as the leading beneficiaries—in England, dissenters from the established church; in this country, draft resisters, Native American peyote users, the Amish—were themselves on the liberal side, or at least were people with whom liberals could readily sympathize.

But as the beneficiaries have come to be more on the traditionalist side, liberals now perceive religious freedom as an impediment to their agenda. That diagnosis is too cynical and simple—or at least I hope it is—but it may contain some truth.

As to how current controversies over the contraception mandate or objections to same-sex marriage would come out under “the American settlement,” there’s no way to say for sure. The whole point of the principle of open contestation was to assure the contending parties, whether secularist or providentialist, a place at the political table, so to speak, so that they could argue out the issues on the merits.

The argument was open because there was no presumption, as there is now, that religious or “providentialist” reasons for political decisions are illegitimate—and no expectation that the Supreme Court would step in and settle controversies by fiat. Which side would “win” depended, consequently, on who could mobilize the most support and make the most persuasive case—persuasive not just in mundane political or pragmatic terms, but in terms of appeals to our (lower case) “constitution,” or to the values, principles, and traditions that constitute us as a people. Secularist positions would prevail on some issues in some times and places, more religious positions for other issues, times, and places.

R&P: I think I am representative of a lot of progressives in that I consider myself an advocate of religious freedom, but I object to (what I see as) its opportunistic deployment. In my view, many of those who appeal to religious freedom these days really only care about conservative Christian freedom, or otherwise embrace freedom as a cloaking device for oppression and moral condemnation. But I also don’t want to fall into the trap you’ve identified—of embracing or opposing freedom based on my own partisan interest. You suggest that open contestation would not only improve our legal structure, but the quality of our public discourse on controversial subjects. How?

SS: Two points in response. First, I suppose it’s natural for any of us to care about a legal right—religious freedom, freedom of speech, right to counsel, whatever—when it’s working to protect us or people we sympathize with. And, conversely, to be more suspicious when the right is helping people we disagree with. It’s also possible, as you say, to use rights opportunistically. If religious freedom can get you out of going to Vietnam, for instance, there’s an incentive to try to exploit the right.

Back in high school, a good friend—who was a thoughtful, earnest pacifist but not a religious person—asked if I could help him prepare a religious justification for avoiding military service. The incentives were strong.

By and large, though, I think it’s more charitable but also more realistic to treat claims of religious freedom as sincere, whether they arise on the right or the left. Would a Muslim prisoner litigate a claim over wearing a beard if he didn’t have a sincere religious conviction? Maybe, but … And purely as a business proposition, Hobby Lobby only hurts itself by closing on Sundays, for instance, or by forfeiting the services of qualified workers who don’t like the business’s Christian policies. Why would the Green family adopt such profit-reducing policies if they didn’t have a sincere commitment?

Second, you ask how open contestation would affect public discourse. With apologies, I’m inclined to refer to another book I did several years ago, called The Disenchantment of Secular Discourse. The basic thesis is that legally or culturally imposed secularist constraints inhibit us from presenting, defending, and examining our deepest normative commitments; we’re forced instead to “smuggle” in those commitments under the heading of generic values like liberty or equality. The result is a public discourse that is impoverished, inefficacious, sometimes disingenuous.

Or worse. Often, when our real normative commitments can’t be presented, the best or only remaining rhetorical strategy is to dismiss those we disagree with on the assumption that they are acting from bad faith, bigotry, or hatred. That strategy, and that kind of dismissiveness, are pervasive these days (as your question itself may suggest).

An egregious example, in my view, is the Supreme Court’s majority opinion in United States v. Windsor, which invalidated a portion of the federal Defense of Marriage Act. Justice Kennedy said the law was invalid because it was enacted from “a bare desire to harm a politically unpopular group,” or from a “purpose to demean” or “to injure.” All of the familiar (and fiercely contested) reasons given for DOMA and equivalent state laws are thereby implicitly declared to be not merely unpersuasive, but pretextual: the millions of Americans who purport to believe those reasons are essentially lying, or deceiving themselves, to conceal what is in reality pure irrational malevolence.

But how could Anthony Kennedy possibly know this to be so? Does appointment to the Supreme Court confer an ability to look into the hearts and minds of millions of people he has never met? And can you think of any accusation better calculated to promote resentment and cultural division? This is judicial discourse at its most degraded, I believe, truly unworthy of Supreme Court justices, but it’s linked to the limitations created by secularist constraints.

Whether at this point easing those constraints would lead to improvements in the discourse is hard to predict: bad discursive habits may be hard to break. But I would say it’s worth a try.

Eric C. Miller is assistant professor in the Department of Communication Studies at Bloomsburg University of Pennsylvania.


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