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The Myth of American Religious Freedom
by David Sehat
Oxford, 368 pages, $29.95

Conservatives, argues David Sehat, profess religious freedom, but only to secretly assert the coercive power of law to force people to live under a particular religious establishment. Liberals, in turn, are afraid to acknowledge the conservatives’ plot, lest they lose power at the ballot box. Instead, they argue that America has always separated church and state. That, Sehat insists, is the dangerous “myth” that has caused deep confusion about America’s heritage of religious liberty.

Nor is this coercive assertion of religion of only antiquarian interest. Sehat, a professor of history at Georgia State University, argues that, as recently as the 1987 confirmation process in connection with Judge Robert Bork’s nomination to the Supreme Court, “it soon became apparent, if it had not been obvious all along, [that] conservatives were not interested in equally maximizing religious liberty for all”just those of Judeo-Christian heritage.” Rather than correct the myth of religious freedom, liberals have played along, “reluctant to acknowledge past religious power for fear that it would strengthen conservative jurisprudence.”

Contrary to Sehat, however, religious freedom has been a contested ideal since the beginning of the nation, and it is just as American to run a “heretic” out of town on a rail as to let him speak and worship freely. It is true that there have been close links between the Christian faith of a majority of Americans and the country’s legal and cultural underpinnings. In 1811, for example, Chancellor James Kent of New York, in The People v. Ruggles , declared Christianity a part of the common law, and even as late as 1952 the Supreme Court declared, in Zorach v. Clausen , that “we are a religious people whose institutions presuppose a Supreme Being.”

Yet the great paradox of American religious freedom is how a nation, overwhelmingly Protestant, that enacted laws against blasphemy, required religious tests for public office, and generally assumed that Christianity provided a base for democratic government welcomed people of every religion (and none) even before there arose what Sehat describes as “the Liberal Moment”: the slow, primarily judge-driven dissolution of any formal connections between religion and the state.

This “moment” extended from the end of the Second World War through the early 1960s, although Sehat finds precursors even in the 1920s. The moment began with decisions such as that in the famous 1941 case West Virginia Board of Education v. Barnette , in which the Court held that the state could not force Jehovah’s Witnesses to salute the flag. By the 1960s the liberal moment had triumphed with decisions such as Torcaso v. Watkins , which declared that freedom of religion included the freedom not to believe. Such decisions, and the larger tumult of the 1960s, dismantled the formal “moral establishment,” yet that establishment continued through what Sehat calls a “proxy religious establishment,” which, while not enshrined in law, was nevertheless effective in coercing nonbelievers.

With a Roberts Court presumably favorable to that proxy establishment, Sehat thinks it now is time for a “judicial minimalism” that will seek to adjudicate competing moral and religious claims. He does not describe this minimalism in detail, but, again presumably, it will consolidate the gains of the liberal moment. He argues that a “morality that is enforced by law must be tied to reason and subject to argumentation about how moral standards advance good in a way that is agreeable to many different groups.” How judges would articulate the content of that reason, or what agreeable might mean in this context, he leaves vague, but he suggests that a “defense of individual rights made democracy possible, and the only unity required was a shared agreement to protect the rights of all.”

And therein lies part of the problem. The “shared agreement” Sehat wishes for a post-religious America is precisely what Europe carved out over the eighteen centuries before America’s founding generation got around to drafting the First Amendment. What Sehat misses is that what he calls the moral establishment, which roughly corresponds to the mainline Protestant cultural hegemony that existed through the early 1960s, was common to all sides of the debate and made the conversation over religious liberty possible in the first place. Indeed, because, as he concedes, religious believers still constitute a majority of Americans (and Christians a majority of those), his argument amounts to the demand that believers agree to exclude religious reasons from the public square and allow only secular reasoning as an acceptable basis for any “shared agreement.”

Sehat describes at least four kinds of developments in American religious history. First are decisions, such as the Barnette case, that help one religious group express its beliefs against the opposition of other groups. Second are those in which religion in general, or a specific faith in particular, is favored against other beliefs, as in the older requirement at the state level that officeholders believe in God, or in the nineteenth-century practice of supporting some churches with taxes. Third is “the preferential treatment of Christianity in the legal system,” which is sometimes extended to cultural preference in general. The fourth, emerging primarily from that liberal moment, is a secular worldview that interposes itself between individuals and the state or adjudicates on behalf of a secular state between private individuals. These four are not the same, and not all are inconsistent with a notion of religious freedom (indeed, only the fourth presents a true and lasting threat to religious belief), but Sehat confuses these narratives as he tries to fit them into his story of “dissenters” (such as William Lloyd Garrison and Elizabeth Cady Stanton) fighting against conservative oppression.

Even Sehat’s thesis that the American heritage of religious freedom is a myth is not a new one. A decade ago Kenneth Craycraft argued, in The American Myth of Religious Freedom , that the myth was that the government could neutrally adjudicate moral claims among religions. Instead, Craycraft contended, the structure James Madison and others wrought always placed the interests of the government above those of religious people. Craycraft argues that the solution is to trust, not in the Supreme Court or in national elites to protect religious liberty, but in a divided federal government and strong state governments, which will allow the people to form smaller political communities that express how they choose to live.

In the end, Sehat fails to acknowledge, as do Craycraft and other astute observers of the public scene, that the square does not remain naked. The judicial minimalism enforcing abstract individual rights that Sehat thinks would protect religious liberty is a fantasy; in an empty public square, the state inevitably will assert its own beliefs. And those beliefs likely will not be favorable to anyone’s religious expression. Indeed, in some ways, Sehat’s minimalist state is already here: Courts at the state and federal levels have used expansive government “interests” as reasons to trump protected religious exercise. Conversely, the state now tolerates express religious bigotry; the United States Court of Appeals for the Ninth Circuit recently upheld a declaration by the San Francisco Board of Supervisors that attacked the Catholic Church as an improper “foreign” influence in the public square. Further, as legal scholars such as Rob Vischer have pointed out, under the auspices of a secular state, individual religious liberty is morphing into an open-ended right to individual autonomy, which a secular state favors in otherwise private disputes between private parties.

The historical antecedents that led to this intellectual landscape make up the more interesting development, but it is not one that is readily accessible in Sehat’s account. Sehat’s reliance on individual “rights” as protectors of religious freedom is unpersuasive when these “rights” are divorced from their historical”largely Christian”context. Unfortunately, Madison and the other Founders, whom Sehat discusses in his opening sections, can be of little help here. While Madison did call for a centralized, “godless” state to protect minority groups and individual rights, he did not foresee the consequences of a political culture in which there was no intermediary between the individual and the state.

Indeed, for all its faults, the moral establishment recognized a central tenet of the Western tradition: The state does not have total power over the individual. Public acknowledgment of religion’s claims is a recognition of the limits of state power. Even now, Americans rely on an attenuated Christian understanding of individual dignity to navigate the separation between law and faith. The real myth, in other words, may be that there can be religious freedom at all in the modern state without a strong religious tradition acting both as a curb to the state’s power on behalf of believers and nonbelievers alike and also as an alternative narrative within which people can work out their individual visions of the good life.

Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University.