The Upside down Freedom

The idea of religious liberty in America has been stood on its head.

The clamor of the political bandwagons has passed; the voters have spoken. A new administration will be installed next month in Washington, and soon afterward the rest of the nation will settle back into its usual political nonchalance—save, perhaps, for a small portion of those who bothered to turn out at the polls.

But the months ahead should hold clues to the direction in which the new government will take us in regard to one vital issue—an issue of prime inportance to Christians: religious liberty.

Last summer, several hundred representatives from diverse parts of American society gathered in Williamsburg, Virginia, to affirm the foundation of religious liberty as set forth in the First Amendment (CT, Aug. 12, 1988, p. 50). The highlight of their meeting was the signing of the Williamsburg Charter, a 23-page document that hails “the genius of the First Amendment” and explores “the place of religion in American life.”

In this article, adapted from an address given to the Fulbright International Scholars at the Williamsburg Charter Summit, Richard John Neuhaus examines the “religious liberty clauses” of the First Amendment—the foundational freedom upon which all other freedoms rest.

Americans are forever trying to “sort things out.” We are always going back to first principles, invoking precedents, and debating conflicting views of the future.

This is part of what we mean when we say that America is an experiment—a claim that may seem strange to outside observers. After all, European settlers have been here more than 350 years now, and our form of federal government, embodied in the Constitution, is 200 years old. Indeed, it is the oldest continuing form of government in the world. Yet we Americans persist in the claim that ours is an experiment.

In no single place is the experimental nature of American democracy more obvious than in the “religious liberty” clauses of the First Amendment. The first item in the Bill of Rights of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There are two parts, or two clauses, in that provision. One is usually called the “no-establishment” clause, and the other the “free-exercise” clause. Both are in the service of religious freedom.

Some would go further and insist there is really only one religion clause or provision, made up of two parts, each related to the other as the end is related to the means. The free exercise of religion is the end, and nonestablishment of religion is an important means instrumental to that end.

A Curious Inversion

That point needs to be underscored because, especially in the last half-century, the two parts of the religion clause have frequently been inverted. That is to say, it has become common in some circles to give “no establishment” priority over “free exercise.” Thus people often refer to the religion clause simply as “the establishment clause.” Some legal scholars go so far as to suggest that the goal is nonestablishment, and they then allow that some space or “accommodation” can be made for free exercise.

One reason for this inversion is the popular belief that the religion clause is essentially a protection against religion rather than for religion. In other words, it was suggested that the religion clause was intended to protect the state and public life generally from the influence of religion. Thus the “separation of church and state” came to mean the separation of religion from public life.

Such an inversion is both contrary to history and exceedingly dangerous to religious freedom and other human rights. Historically, religious freedom is in largest part an achievement of religion, not a secular achievement against religion. The chief reason impelling the Puritans to these shores was the search for religious freedom.

Roger Williams, perhaps the best-known champion of religious freedom in American history, challenged the Puritans of New England to develop their understanding of religious liberty more consistently. Williams was a champion of religious freedom not because he was hostile to religion, but precisely because he was a deeply committed Christian who insisted that the government had no right to interfere with religious belief and practice. Government establishment of a religion, in his view, constituted such an interference.

Similarly, the debates surrounding the adoption of the First Amendment to the Constitution make clear that the premier concern of the Founders was the freedom of religion (including the freedom of the nonreligious conscience). Early drafts of the amendment focused on religious freedom, and some did not even mention nonestablishment. The logic is very clear: If you are for religious freedom, then you must be against the imposition of a governmentally established religion. Thus the curious inversion, by which “free exercise” is subordinated to “no establishment,” has, I believe, no support from history.

Such an inversion is exceedingly dangerous to religious freedom and other human rights. This has become increasingly obvious in recent decades with the expansion of governmental programs and power into more and more areas of American life. The perverse consequence of the inversion is that wherever government goes, religion must retreat. That is because “no establishment,” it is said, means no connection between religion and government, and especially no connection that involves government support or funds.

The result of this kind of thinking, as you might imagine, is the increased restriction of the free exercise of religion. Schools, social agencies, and other associations that are nonreligious or even antireligious can receive government support and funds, while those that are religious in character cannot. The message is clear and ominous: If you wish to receive the help of government, get rid of religion.

To make matters even more troubling, there are those who argue that tax exemption is also a form of government funding. Therefore, they say, all institutions (religious, educational, scientific, cultural) that are exempt from certain taxes must toe the line of government policy. The implications of such thinking for religious freedom—but not only for religious freedom!—should be obvious.

The Foundational Freedom

The Williamsburg Charter is an effort to arrest these trends by calling us back to the constituting insight that the religion clause is for religion, not against religion. In the words of the Charter: “[T]he two clauses are essentially one provision for preserving religious liberty. Both parts, No establishment and Free exercise, are to be comprehensively understood as being in the service of religious liberty as a positive good.”

This truth is important for all human rights, for the right to religious freedom is the foundation of all other rights. Why should this be the case? Again, it is the logic of our historical development. The Declaration of Independence, which is key to understanding our constitutional history, says that we are endowed by the Creator with certain “unalienable rights.” As the charter puts it, “[T]he security of all rights rests upon the recognition that they are neither given by the state, nor can they be taken away by the state. Such rights are inherent in the inviolability of the human person. History demonstrates that unless these rights are protected our society’s slow, painful progress toward freedom would not have been possible.”

Why should the state respect, and even take pains to protect, the rights of people whose views are disagreeable? Why should troublesome minorities be permitted to get in the way of what the government and the majority of people want to do? The answer to these questions is essentially religious in character. These people have been given rights by an authority that is prior to and higher than the state.

The moral legitimacy of the state itself depends upon the state’s acknowledgment of a higher authority, and this leads us to the factor that was so radically new in the American experiment. Other states in human history believed that their moral legitimacy was derived from a higher authority. From tribal dynasties to the Greek polis to the kings of medieval Europe, it was acknowledged that states derived their authority from God or the gods. Therefore, until the American experiment came about, every state took it for granted that it was necessary for the state to control religion. Until the American experiment, the establishment of religion was the universal rule. After all, if the state’s authority was derived from religion, the state could hardly afford to let religion out of its control.

The novelty, the audacity, of the American proposal was to break that pattern in the belief that religious freedom would be good both for the government and for religion. In agreement with many statements by the Founders, Alexis de Tocqueville observed in the early nineteenth century that religion is “the first political institution” of American democracy. The striking oddity is that the first political institution is not included in or controlled by the formal polity. The political institution on which the entire order of government depends is itself beyond the reach of government.

Painful Progress

All things considered, I believe the audacious experiment of American democracy has worked. I have mentioned some of the problems we have had and will continue to have, and I could mention many more. But the religion clause of the First Amendment has served both religion and government well in our effort to secure ordered liberty. I do not say this boastfully, but gratefully. And I certainly do not suggest that this arrangement can be or should be translated wholesale to other countries and cultures. In some other societies, the problems of religion and government are painful, and progress in resolving those problems is not only slow, but may seem imperceptible.

Despite all the talk about secularization, most societies of the world are pervasively religious, and that may be increasing rather than decreasing. Although this reality is often overlooked, the empirical evidence indicates that this is also the case in American society (see Unsecular America, edited by Richard John Neuhaus [Eerdmans]). The Williamsburg Charter takes note of this important fact: “Highly modernized like the rest of the First World, yet not so secularized, American society largely because of religious freedom remains, like most of the Third World, deeply religious. This fact, which is critical for possibilities of better human understanding, has not been sufficiently appreciated in American self-understanding, or drawn upon in American diplomacy and communication throughout the world.”

Yet in some societies, religion is perceived as a source of conflict and divisiveness. It is seen as an obstacle to progress, especially by those who are eager for modernization. The notion is still prevalent that there is a necessary connection between modernization and secularization. Whether or not there is such a necessary connection is the subject of much theoretical debate.

We can say with considerable certainty, however, that the American experience does not support such a connection. It is at least worth pondering whether the key to the American difference in contrast with, for example, societies of Western Europe, is our way of securing religious freedom. In societies where religion is seen as an obstacle to progress, the temptation is to ignore, banish, or control religion. Generally speaking, where governments have given in to that temptation, the results have been very unhappy both for government and religion. The evidence strongly suggests that the institution of religious freedom is the better way.

The ideas and institutions of religious freedom must have their source not only in government policy but in religious belief and devotion. As noted earlier, religious freedom is in largest part a religious achievement. Respect for those of different religions and protection of those who dissent from all religions must be religiously grounded, if such respect and protection is to be secure. In other words, religious freedom cannot be secured by law alone. Religious freedom requires a religious rationale.

The great goal is to secure an order of religious freedom that permits citizens to engage their deepest differences in a manner that does not destroy, but strengthens, civil society. The achievement of that great goal is at least as much the task of theology and religious leadership as it is the task of social science and political leadership. That task is never completed. It is not completed here in the United States of America. Our task and our experiment continue.

Richard John Neuhaus is director of the Rockford Institute Center on Religion and Society in New York.

Have something to add about this? See something we missed? Share your feedback here.