In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.
This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.
His latest offering is cut from this same cloth. In some ways, Rise and Decline might be read as Smith’s swan song to American religious freedom, a subject he has studied closely for decades. He certainly is not sanguine about the prospects for religious freedom in the United States, and in light of the diagnosis he offers there is little cause for cheer.
The major contribution of the book is a revised account of the history of American religious freedom in the United States. A revision requires a conventional narrative, and for Smith the “standard story” contains five basic themes:
1. For centuries, the political and religious authorities of Christendom imposed Christianity on an unwilling public. But the American founders broke free from all that and were themselves liberated to do so by Enlightenment ideas of equality and autonomy. They instituted a totally new and unheard of regime of religious freedom.
2. The First Amendment’s “monumental meaning” embraces sweeping commitments to the separation of religion from government and to the government’s religious neutrality. Even though these principles are imperfectly honored, they are right there in the First Amendment.
3. Alas, after the founding there was a long dark age in the United States, extending through the nineteenth and early twentieth centuries. State establishments were for a time retained; dissenters were not treated as fully equal citizens; and government institutions from Congress on down to the local public schools supported Protestant Christianity in various ways.
4. Beginning in the 1940s with the landmark Everson case, and certainly from the 1960s forward, a courageously committed Supreme Court recovered and redeemed the promise of the founders. Often in the teeth of retrograde resistance, the Court bravely erected the wall of separation. It ended school prayer and Bible reading in public schools. It eliminated (sort of, sometimes) public displays of religious symbols. It aspired to true neutrality.
5. But in recent decades, behold the conservative, religious retreat from our constitutional principles. Religion has become more conspicuous in public life. And the Supreme Court is in the process of reinterpreting the religion clauses in ways that forsake the separation of religion from government.
Though each theme of the standard story contains some grains of truth, Smith argues that each is also deeply in error. And so he offers a corrective—a revised story:
1. American religious freedom reflected a predominantly Christian retrieval, the recovery of much older themes of libertas ecclesiae, or the freedom of the church, and the more recently evolved freedom of inner conscience. The Enlightenment, far from repudiating those Christian notions, actually served as a conduit for them to become part of the new nation.
2. The religion clauses did nothing extraordinary. They reaffirmed the jurisdictional status quo. Matters involving the establishment of religion would remain the province of states. There was no universally embraced principle of religious equality or shared commitment to secular government.
3. The nineteenth century was the golden age of the “American settlement,” which consisted of two substantive ideas—separation of church from state (but not separation of religion from government) and freedom of conscience—as well as one general principle: open contestation about everything else. No hard and conclusive notion of American religious freedom was constitutionalized. Disagreements were preserved.
4. The modern Supreme Court rejected the American settlement and imposed secularism as the constitutional principle of religious freedom. But its enforcement of secularism has been erratic, in part because it has never been very clear about its objectives, in part because religious motivations and expressions have permeated public life from the beginning of the Republic.
5. Religious freedom is today in danger and the danger comes not from religious conservatives but from secular egalitarians. The Court’s elevation of secularism to the status of a constitutional principle has rendered inadmissible the classic, religiously grounded rationales for religious freedom. Secular reasons for protecting religious freedom have increasingly seemed ineffective. The result is that many now gravitate to the conclusion that there is no reason to give religion any kind of special protection.
Smith defends each of these five counter-theses elegantly and persuasively. And in light of the recent and ongoing battles concerning religious accommodations, the final claim seems to my mind especially powerful.
Accommodations from laws of general applicability for those with religious scruples have always been part of the tradition of American religious freedom. Though there is a long-standing debate about whether the Constitution sometimes makes such accommodations compulsory, there has never been a serious question about the permissibility—and even the desirability—of legislative accommodation of those with religious objections where feasible. One of the core assumptions in the accommodationist position is that religion is, in the main, a positive and irreducibly special feature of human life, and that it therefore deserves particular regard and unique protection from the incursions of secular law.
As of 1993, all of this was still true. In that year Congress passed the Religious Freedom Restoration Act with bipartisan support and President Bill Clinton’s enthusiastic signature. The catalyst for the law was the Supreme Court’s 1990 decision, Employment Division v. Smith, in which the Court, in an opinion by Justice Scalia, held that the Constitution did not as a rule require accommodations from neutral laws of general application that may impose an incidental burden on religious objectors.
In retrospect, the political left’s support of RFRA might be explained by pure coincidence: the galvanizing force of a Scalia opinion that seemed insensitive to the claims of a sympathetic religious minority—Native Americans—together with the prospect of accommodating other exotic and essentially non-threatening religious minorities. The notion that RFRA might be used (or that it might be needed!) to accommodate traditional-minded Christians who objected to some fraction of the panoply of sexual liberties and equalities that are now cherished in American culture and have been steadily constitutionalized by the Supreme Court (gay rights, abortion rights, and rights to contraception primary among them) was not perceived.
But it is now. Opponents of RFRA now believe it to be the instrument by which traditional Christians can avoid the progress of sexual freedom and equality—certainly not by stopping it, but simply by abstaining from it in certain circumstances. That makes RFRA a bad law. Employment Division v. Smith is now (notwithstanding its author) embraced: the rhetoric of equality under the law—“one law for everybody, no exceptions!”—is trotted out not because anybody truly believes in such an iron view (exceptions to laws in other domains are made all the time without complaint), but because these particular exceptions might be used even in small ways to sidestep the progressive juggernaut of sexual liberty and equality and the nondiscrimination norms used to achieve it. Traditional faiths like Christianity, as Smith says, in their “very essence will often be a scandal and an offense against the whole ethos of liberal egalitarianism,” the new foundation of the American social order.
It is here that Smith’s final revisionist theme does its most persuasive work. Christian justifications for the assumption that religion is a unique good requiring unique legal protection—the true, original grounds for the American tradition of religious freedom—have been deemed out of order. Secular justifications have failed. What was characterized by legal commentators, and what was imposed by the Supreme Court as hard constitutional law in the modern era, as a principle of neutrality was in reality always a principle of secularism. That principle has resulted in the gradual but inexorable demotion of religion to just another commitment or preference, deserving no more protection than any other. Under those conditions, when religious freedom conflicts with the powerful rights of sexual liberty and their associated egalitarian rights of nondiscrimination, it is bound to lose every time.
Is it then only a matter of time before RFRA is repealed and religious freedom is read out of the Constitution, at first implicitly and later, perhaps, explicitly? Smith’s revised story seems very much to point toward that pessimistic conclusion and he does not give the reader who is rooting for religious freedom a sixth revisionist theme from which to take much solace.
Toward the end of the book, as is his custom, Smith does note some small but hopeful signs that religious freedom is not dead yet. The Supreme Court two years ago vindicated the constitutional right of churches to make independent employment decisions about their ministers, a victory of sorts for libertas ecclesiae, one of the old Christian justifications for religious freedom. And hearkening to the seemingly abandoned American settlement of the nineteenth century, Smith also raises the issue of federalism—that sturdy structure of American constitutional governance—as a method of negotiating conflict by rendering a variety of church-state resolutions possible at different levels of government. Finally, the Supreme Court’s own erratic enforcement of its principle of secularity—its refusal to remove every religious symbol and strike down every religious expression from the public space—is itself a compromise of sorts.
But this is a Steven Smith book, after all. And it would not do at all if these minor glimmerings were pressed with much optimism, the last two of which are at any rate entirely dependent on the current composition of the court and the vagaries of elections. Nor should they be, in light of the immense, profound, and intractable conflicts and challenges that are described and analyzed so well in this work, and that will haunt the future of American religious freedom.
Editor’s note: This review first appeared in the summer 2014 issue of the University Bookman and is reprinted with permission.