The “standard story” of American religious freedom goes something like this: The Founders, in their wisdom, introduced novel conceptions of religious liberty that ensured a secular government and equal treatment of all faiths. Ensuing generations of Americans failed to honor those principles. In the middle of the twentieth century, a courageous Supreme Court recovered the Founders’ approach. Since then, conservative religious believers have tried to undo the Court’s restorative efforts.
Steven Smith, a professor of law at the University of San Diego, isn’t buying that story, and in his latest book, The Rise and Decline of American Religious Freedom, he explains why. For most of our history, Smith argues, our country largely abided by an “American settlement” for religious pluralism that included separation of church from state (but not of religion from government) and freedom of conscience. But the mid-twentieth-century Supreme Court altered the “American settlement” and thereby placed “religious freedom in jeopardy.”
Smith is well-known for his work in legal and political theory, and his previous books have offered measured though sober accounts of important legal questions, as evidenced by less-than-cheery titles like Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, Law’s Quandary, and The Disenchantment of Secular Discourse. Smith’s newest book expresses greater pessimism about the current trajectory of religious freedom in America. But he may not be pessimistic enough.
In Rise and Decline, Smith endorses three arguments for protecting religious liberty that were originally proposed by legal scholar Douglas Laycock: (1) Attempts to impose or suppress religion have led to a great deal of suffering because people care so deeply about religion, and it is better to avoid this suffering; (2) some religious adherents will fight, kill, or die for the sake of their beliefs, and that, too, is best avoided; and (3) religious beliefs are of relatively little importance to the government. Smith acknowledges that support for these arguments might waver, but he thinks “many Americans surely still find those rationales persuasive and admissible.”
I am not so sure. First, the state today has more benevolent means of suppressing religion than in times past—a reality that dispenses with Laycock’s first argument. Second, the American experiment has domesticated a great deal of religious belief, making fewer believers willing to suffer or die for their values. Finally, the government’s regulatory arm now reaches more areas in which religious beliefs collide with government norms.
The contingent nature of Laycock’s arguments is even more problematic for a reason that Smith raises in other work but does not specifically address in Rise and Decline. It can be summed up in an observation that Harvard law professor Mark Tushnet made almost thirty years ago: “[T]he constitutional law of religion…is founded on a tradition that we no longer fully understand.” Tushnet observed that despite both liberal and republican influences on the Framers, the overwhelming success of the liberal tradition means that “the republican tradition is far less available to us than it was to the framers.” Notions such as the “common good” are not recognizable within the liberal tradition, and we have no coherent way to recover them.
Our society has become only more fractured about fundamental questions of truth, meaning, and ethics. We cannot agree even on whether those categories retain any coherence. To be sure, the importance of religious freedom as an abstracted ideal has not lost all cultural and political salience. Our government continues to advocate for religious freedom around the globe. And most Americans value religious liberty in a general sense.
For all that, fewer people today recognize or care about the immediate and practical need of legal protections for the free exercise of religion. Many past challenges to religious freedom are no longer active threats. We don’t enforce blasphemy laws, for example, and we don’t force people to make compelled statements of belief. We don’t impose taxes to support the training of ministers, and many of us are free to practice our religion without government constraints.
Those changes are bound to have a practical effect on the cultural salience of religious liberty. Take the least threatened religious believer in America today: the progressively oriented Christian who remains a part of the dominant historical and cultural faith in the United States while at the same time holding views that are largely aligned with contemporary liberal values. Few aspects of progressive Christian belief and practice confront government regulation in a way that threatens the free exercise of religion. That does not mean progressive Christians hold no views antithetical to government interests. To the contrary, many elements of the so-called “religious left” challenge American policy on war, criminal law, immigration, and the environment. But most of these arguments pose few questions about the boundaries of free exercise. They are religiously informed policy arguments, not religious free exercise arguments.
There is also a growing number of Americans who are either actually or functionally “non-religious” and may therefore have no need for free exercise protections. This group is still relatively small, but it is not insignificant, and it is growing steadily. More important, this group has gone from being almost imperceptible in the late eighteenth century to being sociologically significant now. It is no longer possible to ignore nonbelievers in framing normative and legal religious-liberty arguments, particularly in cases implicating the Establishment Clause. That reality is nowhere more evident than in the growing recognition that even “nonsectarian” prayers are incapable of accommodating atheists.
Both the non-religious and the religious mainstream may be less inclined to worry about the contested boundaries of the free exercise right. They might view its outer limits as either unimportant or even antithetical to other ideological interests. As a result, cultural views about the importance of the free exercise right might weaken even as support for more abstract notions of religious liberty remains high.
The pressure on the category of “religion” raises another question that Smith takes up in Rise and Decline: the notion of “conscience.” Smith notes that at the time of the Framing, the “free exercise of religion” was “virtually synonymous with freedom of conscience.” As a purely linguistic matter, the word “conscience” would have been a better fit than “religion” for the trajectory of “belief” that we have witnessed in American society. It would have more easily encompassed all kinds of non-religious but deeply held beliefs that we see today. But the broader linguistic capacity of “conscience” over “religion” might also suggest one reason that courts have moved to other First Amendment provisions to supplement religious liberty protections. Concepts such as “speech” and “assembly” (or, if you prefer, the judicially recognized right of “association”) do not depend on any religion-specific justifications.
These other rights may be likelier to resonate today than arguments rooted in the free exercise of religion. The values that undergird speech, assembly, and association draw from a history with greater current cultural appeal than the free exercise right. In fact, these rights have historically protected many progressive movements through an approach akin to what I have elsewhere called “confident pluralism.” Of particular relevance to the current cultural moment are the protections extended to gay social clubs and gay student groups during the early gay-rights movement.
Smith published Rise and Decline just prior to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Holt v. Hobbs, and it’s worth considering how those cases fit his story. Both were wins for religious liberty, but both were statutory rather than constitutional decisions. In one sense, the focus on statutes is completely unsurprising given the state of constitutional free exercise concerns. But it’s not clear that these statutory protections by themselves alter the direction of Smith’s narrative of decline. For that kind of directional change, we would need the Court to re-examine its reasoning in the 1990 peyote case, Employment Division v. Smith. Such a re-examination would be entirely warranted. As Laycock rightly noted in an amicus brief filed just this month, the rule announced in the peyote case came unexpectedly (the rule “was neither briefed nor argued” to the Court) and the decision “cannot be said to have become embedded in the law.” But the Supreme Court has thus far not budged. And as long as that decision stays on the books, Smith may have been better off basing the title of his latest book on an article he wrote in the Harvard Law Review a few years ago: “Discourse in the Dusk: The Twilight of Religious Freedom?” Even then, Smith’s question mark might be too optimistic.