Is a coherent theory of religious freedom possible?

• Author: Smith, Steven D.

Is a theory of religious freedom possible? It's obvious that we can and do talk about and argue about issues of religious freedom--school prayer, aid to parochial schools, and so forth. But a "theory" entails something more than "talk," or ad hoc argumentation.(1) More specifically, we would treat talk as falling short of being a "theory of religious freedom" on either of two grounds that are relevant here.

First, we sometimes distinguish between a "theory" and something else that we might describe as a compromise or "modus vivendi." A modus vivendi doesn't give us an internally consistent set of principles capable of generating answers to questions of religious freedom; it is more in the nature of a negotiated, and perhaps messy, truce.

Second, a position does not qualify as a theory of religious freedom if it begins by preferring one (or some subset) of the competing religious and secular positions, and then proceeds to spell out what that preferred position does and doesn't allow. Suppose I contend, for example, that the law should permit teacher-led school prayer but not compulsory baptism; and when asked to explain these conclusions I argue that they follow from the best interpretation of Catholic theology, or perhaps Mormon or Muslim theology, and that this particular theology is the truest or best one available. I think we do not consider this sort of position to be a theory of religious freedom. On the contrary, this sort of position is as a historical matter entirely familiar, and it is just what religious freedom is supposed to save us from.

1. WHY THERE CAN BE NO THEORY OF RELIGIOUS FREEDOM

   My view is that all argumentation about religious freedom will be disqualified from being a "theory of religious freedom" on one or the other of these grounds.(2) It may be helpful if I give the reason for my view in summary form, and then elaborate. I think the establishment and free exercise controversies that we are familiar with present one aspect of a more universal problem, which we might call the problem of "the spiritual and the temporal."(3) "For the flesh lusteth against the Spirit, and the Spirit against the flesh: and these are contrary the one to the other ...."(4) The enduring problem is to determine how these matters stand in relation to each other. Does the spiritual take priority over the temporal, or vice versa? Is the spiritual more real, or more authoritative, than the temporal--earth being merely a footstool for heaven? Or, conversely, is the spiritual merely derivative, or epiphenomenal, or perhaps merely a delusion?

   Problems of religious freedom present one manifestation of this conflict within the realm of politics and law. These problems may involve competing claims to authority advanced by spiritual and temporal institutions. Or they may involve spiritual claims made by individuals that conflict with more general temporal interests. And when such spiritual-temporal conflicts arise, possible responses or resolutions can be understood as falling into three general categories, which I will describe as "spiritual primacy," "temporal primacy," and "dualism." The first two categories offer the possibility (at least in the abstract) of "theory," or of principled resolutions of conflicts--but not of resolutions that can usefully be described as respecting "religious freedom." The last category--dualism--is capable of recognizing a place for religious freedom, but it does not offer the possibility of principled resolutions of conflicts.

   1. THE PRIMACY OF THE SPIRITUAL

      I want to try to clarify these general observations by considering a concrete example of each of these responses. So let me start with the category of "spiritual primacy." In this view, the temporal is subordinate to, or perhaps a subset of, the spiritual. And it seems to follow that spiritual-temporal conflicts should be resolved by applying spiritual criteria.

      As an example of this approach, consider the medieval papacy's conception of government and law, as interpreted by Walter Ullmann.(5) Ullmann explains that

      the papacy, in common with medieval doctrine and literature,

      held that the individual's activities cannot be separated into

      more or less well defined categories .... Christianity seized

      the whole of man--man was whole and indivisible: every one

      of his actions was thought to have been accessible to the

      judgement by Christian norms and standards.(6)

      Those Christian norms and standards were ultimately directed toward a spiritual and indeed otherwordly end: the salvation of the soul. But it did not follow that the affairs of this life were unimportant. On the contrary, "while the end of this [Christian] society and of its members was in the other world, the terrestrial life was nonetheless of fundamental importance in achieving this other-worldly aim, that is, salvation. The principle of indivisibility embraced the life in this as well as in the other world .... "(7)

      Within this spiritual conception of life, the Church was responsible for administering the Christian norms that governed all earthly activities.(8) Consequently, the papacy regarded the Church and the pope as possessing jurisdiction to direct all the affairs of Christendom. Within this comprehensive jurisdiction, Ullmann argues, all other authorities (including both bishops and princes) were subordinate to papal authority. "Power, that is, jurisdiction, was concentrated in the pope, who handed part of it on to the bishops, part of it to kings and emperors, and so forth."(9) In sum, "the secular prince... [was] a necessary, auxiliary organ.., instituted by divinity to assist the pope in his government."(10)

      This conception provided an intellectual framework within which conflicts between religious and secular authorities could be adjudicated." To use our terms, that framework allowed for a "theory," I think, because it contained inclusive principles that were accepted by the competing interests as those interests were understood at the time. Of course, kings and emperors often resisted the popes' claims, and in the realm of power and politics their resistance was often successful. But in the realm of theory the secular rulers were severely handicapped because they themselves embraced the inclusive premises on which the papal claims rested.

      Thus, Ullmann explains that "it would be wholly erroneous to think that these principles were, so to speak, imposed upon kings and princes."(12)

      No king or emperor ever objected to the papal theme that his

      kingdom was entrusted to him by God: on the contrary, it was

      the kings themselves who, quite independent of, and uninfluenced

      by, the papacy had adopted this standpoint.(13)

      Of course, a king could claim that he received his power from God directly, rather through the intermediary of the pope. The emperor Henry IV made just this claim in his famous dispute with Pope Gregory VII. But in an officially Christian world this assertion seemed weak. The New Testament recorded Christ's conferral of power on Peter--and, by inference, on his successors--but what evidence was there of any independent divine conferral of authority on the king or the emperor? And what special competence could a worldly and perhaps illiterate prince claim in matters of scripture and Christian doctrine? Ullmann stresses that within the Christocentric worldview, papal claims to sovereignty were perfectly logical--indeed...