My Review of Rise and Decline of American Religious Freedom

The new (August/September) issue of the must-read journal First Things includes my short but very favorable review of Steven D. Smith’s The Rise and Decline of American Religious Freedom:

Anyone who wants to understand the perilous condition of religious freedom in America should read this book. In lucid prose, University of San Diego law professor Steven D. Smith contests basic themes of the conventional story of American religious freedom and presents a provocative and compelling counter-narrative. His account culminates in a bracing discussion of the threat posed by the emergent new orthodoxy of secular egalitarianism.

According to the standard story, the framers adopted the First Amendment as a novel experiment in Church-state separation and religious freedom. That story, Smith explains, is doubly wrong. Rather than breaking cleanly with the past, the core concepts of the traditional American understanding of religious freedom developed as a “recovery, adaptation, and consolidation” of “distinctively Christian notions”: the medieval theory of the dual jurisdictions of Church and state, and the Reformation idea of individual conscience as an “inner church.” Further, in the framers’ understanding, the religion clauses of the First Amendment were primarily jurisdictional, not substantive: they made clear that matters of religion remained within the domain of the states. Smith sketches the long and bizarrely convoluted history by which the religion clauses came to be understood as setting forth substantive rights, first against the federal government, and later (under the incorporation doctrine ultimately applied to the Fourteenth Amendment) against the states.

Smith also powerfully argues that the usual narrative, in which the post-World War II and Warren-era Supreme Court rescued the nation from a shameful history of religious persecution and discrimination, has things essentially backwards. He celebrates the “practical genius” of the theoretically inelegant “American settlement,” which recognized specific commitments to separation of Church from state and to freedom of conscience and which saw fit not to resolve the competition between the broader “providentialist” and “secularist” interpretations of those commitments. (Under the providentialist reading, government can acknowledge a dependence on the Creator, and citizens and legislators may act on their religiously informed moral views in making public policy.) When the Supreme Court shattered this settlement by adopting the secularist interpretation, it engendered a destructive “discourse of accusation, anathematization, and abuse,” a discourse that has spread to judicial interventions on related issues like abortion and marriage.

Contrary to common fear-mongering about the supposed theocratic threat from the religious right, Smith cogently sets forth what he sees as the real dangers. First, religious freedom is eroded from within by the “self-subverting logic” of the secularist interpretation: If government can’t act on the basis of any religious views, then it can’t generate the rationales that historically justified religious liberty. Second, secular egalitarianism, especially as reshaped and bolstered by the gay rights movement, is fundamentally incompatible with a robust understanding of religious freedom. Indeed, it has all the markings of an oppressive orthodoxy—a single ultimate value, inordinate certitude of its righteousness, and a desire to “penetrate into hearts and minds” to purify beliefs and motives.

 

Most Popular

U.S.

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More
Film & TV

Why We Can’t Have Wakanda

SPOILERS AHEAD Black Panther is a really good movie that lives up to the hype in just about every way. Surely someone at Marvel Studios had an early doubt, reading the script and thinking: “Wait, we’re going to have hundreds of African warriors in brightly colored tribal garb, using ancient weapons, ... Read More
Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More