Religion and the Constitution.

• Author: Baldacchino, Joseph
• Position: Review

The American Myth of Religious Freedom, by Kenneth R. Craycraft, Jr. Dallas, Texas: Spence Publishing Co., 1999. 226 pp. $27.95.

This book provides a good example of the distortion of reality, not to mention mind-torturing confusion, that occurs when political documents--in this instance, the religious clauses of the First Amendment and the writings of Locke, Jefferson, and Madison--are viewed through sectarian glasses and without regard to the multi-layered historical context in which they were created.

The author does occasionally stumble onto a valid point, as when he notes the impossibility of implementing a term like "freedom of speech" or "freedom of religion" in an abstract, or merely procedural, way. Rather, such terms, as put into actual practice, derive their concrete meanings from the ultimate purpose or worldview of those employing them. Hence, "religious freedom," as defined and put into practice by postmodernist liberals, will not--because it cannot--affect everybody neutrally. It is no more possible for secular liberals, who recognize no ultimate criterion of truth or goodness beyond the radically free individual "conscience," to enforce a notion of "religious freedom" that affects equally both those who share their secularist worldview and those moved by very different ethical and epistemological visions, e.g., traditional Christians, than would be the case if the roles were reversed. According to Cray-craft, "religious freedom," as enforced by the liberal state in conformity with recent Supr eme Court decisions, anathematizes orthodox religious believers.

In contemporary American politics, such believers are marginalized. They are discriminated against in publicly financed education, and they are told that the expression of their moral beliefs is not welcome on an equal basis with secularism in political or cultural debate. In the name of "religious freedom," the liberal state systematically persecutes not only orthodox religious believers, but even agnostics and atheists who happen to agree with them on issues of public morality such as abortion or norms of acceptable sexual practice. Liberalism is intolerant toward orthodox Christianity and other traditional religions; accordingly, Craycraft concludes, echoing Stanley Fish, that liberalism, defined by its adherents as the indiscriminate practice of tolerance, is not in fact liberal.

This much is accurate, if a bit obvious. Where Craycraft goes blatantly, irritatingly, maddeningly wrong is in conflating the ethos of contemporary liberalism with the original intent of the First Amendment and of the Constitution as a whole. Nothing could be further from the truth. The religion clauses of the First Amendment are as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In 1947 the Supreme Court, in Everson v. Board of Education, ruled, taking a phrase from Jefferson, that the First Amendment's establishment clause had erected a "wall of separation" between church and state. That ruling opened the way for a series of decisions that, in effect, have established secularism as the official religion of the United States in the second half of the twentieth century. Far from conforming to the original intent of the amendment, however, as Craycraft argues, these decisions have more nearly stood the will of the framers on its head.

We have it from no less an authority than Chief Justice William Rehnquist that there "is simply no historical foundation for the proposition that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson." In its 1985 ruling in Wallace v. Jaffree, the Supreme Court struck down an Alabama statute providing for a moment of silence in public schools for meditation or prayer. Writing in dissent, Rehnquist, then an associate justice, provided the most comprehensive historical record ever given in a Supreme Court decision concerning the intent of the framers of the First Amendment's religion clauses.

Pointing out that Jefferson was in France at the time the First Amendment was passed by Congress and ratified by the states and that his "wall of separation" phrase was a "misleading metaphor" tossed off in a "short note of courtesy, written fourteen years after" congressional passage, Rehnquist observed that Jefferson "would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religious Clauses ...." By contrast, Madison, who had joined with Jefferson in the battle for enactment of the Virginia Statute of Religious Liberty of 1786, was a member of the First Congress, where he played a leading role in passing the Establishment Clause. But the First Amendment's legislative history, including the significant contributions of Madison, presents "a far different picture of its purpose," Rehnquist continued, "than the highly simplified 'wall of separation between church and State.'"

Rehnquist showed, based on the House proceedings, that Madison was the most important architect in the House, "but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of...