From Establishment To Freedom Of Public Religion
| Author | John Witte, Jr |
| Position | Jonas Robitscher Professor of Law, Director of Law and Religion Program |
| Pages | 499-518 |
Page 499
Jonas Robitscher Professor of Law, Director of Law and Religion Program, and Director of Center for the Interdisciplinary Study of Religion at Emory University. This text is based on my opening lecture for a conference on "Faith and Law" hosted by the Ohio State Bar Association (Nov. 12, 2003). I wish to thank Robert E. Reber, Stephen Cianca, and Ward Cornett for their kind invitation for me to participate in the event.
The civic catechisms and canticles of our day still celebrate Thomas Jefferson's experiment in religious liberty. To end a millennium of repressive religious establishments, we are taught, Jefferson sought liberty in the twin formulas of privatizing religion and secularizing politics. Religion must be "a concern purely between our God and our consciences," he wrote.1 Politics must be conducted with "a wall of separation between church and state."2 "Publick Religion"3 is a threat to private religion, and must thus be discouraged. "Political ministry" is a menace to political integrity and must thus be outlawed.
These Jeffersonian maxims remain for many today the cardinal axioms of a unique American logic of religious freedom to which every patriotic individual and institution should yield. Every public school student learns the virtues of keeping his Bible at home and her prayers in the closet. Page 500 Every church knows the tax law advantages of high cultural conformity and low political temperature. Every politician understands the calculus of courting religious favors without subvening religious causes. Religious privatization is the bargain we must strike to attain religious freedom for all. A wall of separation is the barrier we must build to contain religious bigotry for good. If only those right-wing killjoys of our day would learn proper patriotism, instead of pestering us with their Decalogues and faith- based initiatives!
"[A] page of history is worth a volume of logic," Justice Holmes once said.4 And careful historical work in the past two decades has begun to call a good deal of this popular Jeffersonian logic into question. Not only are Jefferson's views on disestablishment and free exercise considerably more delphic than was once imagined.5 But the fuller account now available of the genesis and exodus of the American experiment in religious liberty suggests that Jefferson's views were hardly conventional in his own day-or in the century to follow. Indeed, the Jeffersonian model of religious liberty came to constitutional prominence only in the 1940s, and then largely at the behest of the United States Supreme Court. During much of the time before that, the American experiment was devoted not so much to privatizing religion and to secularizing politics, as to balancing the freedoms of all private religions against the establishment of one public religion.
The implications of these new historical insights have only begun to be worked out. The hard religious right has woven these historical insights into a crusade to reclaim the nation's Christian roots and to reestablish its Christian traditions in place of the current establishment of secularism. The hard religious left has converted them into a new appreciation for the bold prescience of the United States Supreme Court to anticipate the needs of our fragmented postmodern and post-Christian polity. The Supreme Court itself, however, has quietly abandoned much of its earlier separationist logic in recent years, and moved gradually toward to the recognition that both private and public forms of religion deserve constitutional freedom.
To relate this story and its implications a bit more fully, permit me to revisit Jefferson's model of religious liberty, now viewed in juxtaposition with the model of religious liberty developed by John Adams, his life-long friendly rival. It was Adams's model, I shall argue, more than Jefferson's, Page 501 that dominated American constitutional law for the first 150 years of the republic. It was Jefferson's model that the Supreme Court revived in the 1940s to overcome the abuses and limitations that Adam's model had betrayed. Today, I shall conclude, neither model standing alone is adequate, but the insights of both models can be combined into a new understanding of the freedom of public religion.
As our civic catechism has taught us, Thomas Jefferson regarded his 1786 Law for the Establishment of Religious Freedom in Virginia as a "fair" and "novel experiment."6 This law, declared Jefferson, defied the ancient assumptions of the West: that one form of Christianity must be established in a community, and that the state must protect and support it against all other religions. Virginia would no longer suffer such state prescriptions or proscriptions of religion. All forms of Christianity must now stand on their own feet and on an equal footing with the faiths of "the Jew and the Gentile, . . . the Mahometan, the Hindoo, and [the] Infidel of every denomination."7 Their survival and growth must turn on the cogency of their word, not the coercion of the sword, on the faith of their members, not the force of the law.
True religious liberty, Jefferson argued, requires both the free exercise and the disestablishment of religion. On the one hand, the state should protect the liberty of conscience and free exercise of all its subjects-however impious or impish their religious beliefs and customs might appear. "Almighty God hath created the mind free," Jefferson wrote, and thus
no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, or shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.8
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On the other hand, the state should disestablish all religion. The state should not give special aid, support, privilege, or protection to religious doctrines or groups-through special tax appropriations and exemptions, special donations of goods and realty, or special laws of incorporation and criminal protection. The state should not direct its laws to religious purposes. The state should not draw on the services of religious associations, nor seek to interfere in their order, organization, or orthodoxy. As Jefferson put it in his famous 1802 letter to the Danbury Baptist Association:
Believing with you that religion is a matter which lies solely between a man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate . . . a wall of separation between church and State.9
Clergy were to respect this wall of separation as much as politicians. Clergy needed to stick to their specialty of soulcraft rather than interfere in the specialty of statecraft. Religion is merely "a separate department" of knowledge, Jefferson wrote, alongside other specialized disciplines like physics, biology, law, politics, and medicine.10 Preachers are the specialists in religion, and are hired to devote their time and energy to this specialty.
Whenever, therefore, preachers, instead of a lesson in religion, put them off with a discourse on the Copernican system, on chemical affinities, on the construction of government, or the characters or conduct of those administering it, it is a breach of contract, depriving their Page 503 audience of the kind of service for which they were salaried. . . .11
Jefferson's life-long friendly rival, John Adams, wrote an equally spirited defense of the Massachusetts "experiment" in religious liberty. "It can no longer be called in question," Adams wrote, that "authority in magistrates and obedience of citizens can be grounded on reason, morality, and the Christian religion," without succumbing to "the monkery of priests, or the knavery of politicians."12 The 1780 Massachusetts Constitution, which Adams largely drafted, guarantees the liberty of conscience and free exercise of all its citizens. But it also institutes a "mild and equitable establishment of religion," featuring special state protections and privileges for preferred forms of Christian piety, morality, and charity.13
True religious liberty, Adams argued, requires the state to balance the freedom of many private religions with the establishment of one public religion.
On the one hand, every civil society must protect a plurality of private religions-whose rights are limited only by the parallel rights of juxtaposed religions and the duties of the established public religion. The notion that a state could coerce all persons into adherence and adherents to a common public religion alone was for Adams a philosophical fiction. Persons would make their own private judgments in matters of faith. Any attempt to coerce their consciences would only breed hypocrisy and resentment. Moreover, the maintenance of religious plurality was essential for the protection of civil society and civil liberties. "Checks and Balances," Adams wrote to his friend in Monticello, in the political as well as the religious sphere,
are our only Security, for the progress of Mind, as well as the Security of Body. Every Species of Christians would persecute Deists, as soon as either Sect would persecute another, if it had unchecked and unballanced Power. Nay, Page 504 the Deists would persecute Christians, and Atheists would persecute Deists, with as unrelenting Cruelty, as any Christians would persecute them or one another. Know thyself, Human nature!14
On the other...
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