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.
ECM: 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?
SDS: 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.
ECM: 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?
SDS: 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.
Read the whole thing at Religion and Politics.