The rise and fall of religious freedom in constitutional discourse.

Author:Smith, Steven D.

The thesis of this Article can be succinctly stated: our consitutional commitment to religious freedom contains a fatal internal flaw--a propensity toward self-cancellation. This internal flaw has manifested itself in our recent constitutional history. The intelligent constitutional commitment to religious freedom that once existed in this country has deteriorated,(1) and this deterioration is due, in significant measure, not to a decline in religiosity in either the general or the legal culture, but rather to the self-negating quality of the commitment itself.

This self-negating propensity stems from the paradoxical relationship between religious freedom's historical justification and its current interpretation. The principal historical justification for our constitutional commitment to religious freedom was a religious rationale.(2) The justification relied upon religious premises and worked within a religious world view.(3) Moreover, quite apart from its historical significance, the religious justification is also the most satisfying, and perhaps the only adequate justification for a special constitutional commitment to religious liberty. Today, however, religious freedom, at least as it has come to be understood, forbids governmental reliance upon religious justifications as a basis for public policies or decisions.(4) Therein lies the paradox--our constitutional commitment to religious freedom undermines its own foundation; it cancels itself out by precluding government from recognizing and acting upon the principal justification supporting that commitment.

If correct, the thesis that religious liberty is self-negating will explain a good deal. It is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undiputed sovereignty.(5) This Article suggests that the internal, self-negating quality of our commitment to religious freedom renders us incapable of interpreting and applying that commitment in a coherent fashion.

In addition to doctrinal confusion, the law in this area has lately exhibited a marked insensitivity to the value of what it is ostensibly designed to protect--the freedom of citizens to believe and practice their religion. This insensitivity is especially evident in recent decisions under the Free Exercise Clause, but it is manifest in other areas as well.(6) It would be easy to blame this relaxation of protection on a growing secularism that marginalizes religious belief and practice. But that easy explanation is inconsistent with survey and sociological evidence indicating that religious belief has not declined in this country.(7) I will argue that the waning of our constitutional commitment to religious liberty need not be explained by any deterioration in religious commitment. Rather, the phenomenon results from the self-canceling character of the commitment itself.

Thus, the thesis of this Article has considerable explanatory value--if, that is, the thesis is not implausible. But that is an important reservation. Legal disputes raising issues of religious freedom are as numerous today as ever, and they often elicit judicial pronouncements paying respect to the importance of religious freedom has dwindled.

I can offer no quick answer to this objection, but its force can perhaps be blunted by a preliminary clarification of what I will argue. My contention that there is at present no intelligent constitutional commitment to religious freedom should not be understood to assert more than it actually clims. For example, in denying that there is an "intelligent" constitutional commitment to religious freedom, I acknowledge that there may be a commitment that is merely traditional or instinctual,(8) but that is not based on consciously understood and currently believable grounds. In addition, a constitutional commitment to religious freedom is not the same as actual religious freedom; either might exist without the other.(9) Hence, in arguing that there is no intelligent constitutional commitment to religious freedom I do not deny that a considerable measure of actual religious freedom continues to exist in this country.

Furthermore, I am speaking about a specific constitutional commitment to religious freedom. It is possible that there is a commitment to other kinds of freedom--general personal autonomy, perhaps, or freedom of belief--and that religious conduct or belief may sometimes fall within these other categories.(10) One might hold, for example, that a person is free to be a pantheist simply because pantheism is a belief and citizens have a constitutional right to believe whatever they choose. The fact that pantheism is a religious belief would be irrelevant to this claim. I do not deny the existence of constitutional commitments to various kinds of freedoms that may sometimes happen to protect religious beliefs or practices. I contend only that there was once an intelligent constitutional commitment to religious freedom specifically, and that this commitment has seriously deteriorated.

That deterioration is due in part, I will argue, to the conceptual paradox that has caused our constitutional commitment to religious freedom to cancel itself out. This contention also warrants preliminary clarification. First, I will focus on one intellectual strand in a complex historical and cultural tapestry. The strand I have chosen to examine is a central one, but I do not mean to imply that it represents the whole picture. Second, even with respect to the intellectual strand I am considering, I do not mean to suggest there is anything compulsory or logically inescapable about the conceptual paradox. We--the constitutional community, including especially the Supreme Court and those who criticize or prescribe to it--might have avoided the paradox by thinking more carefully about the meaning of religious freedom. Specifically, we might have avoided the paradox by declining to adopt an interpretation holding that governmental reliance upon religious justifications is incompatible with a commitment to religious freedom. It is even possible that we still can dissolve the paradox and escape the malaise that currently afflicts constitutional musings on the matter of religious freedom (although at the moment I see little reason for optimism on this score). The paradox, in short, describes the course our thinking about religious freedom has taken, not a course that our thinking was or is compelled to take.

Part I discusses the religious justification and argues for the central importance of that justification in generating a commitment to religious freedom in the founding period. Part II describes the disapperance of the religious justification from contemporary constitutional discourse. It also considers and rejects the view that would explain this disappearance by an assumption that secularization has deprived the religious justification's premises of their plausibility. Part III offers a better explanation: the religious justification has been rendered inadmissible in public discussion by the prevailing interpretation of what religious freedom means. In this way, our commitment to religious freedom has nullified its own historical justification.

Part IV considers possible nonreligious replacements for the religious justification. It concludes that the most common nonreligious rationales for religious freedom are vulnerable to serious objections and, thus, are probably inadequate to sustain a strong constitutional commitment. Part V examines the consequences of this failure of justification, arguing that it has produced massive incoherence in religion clause jurisprudence and a withdrawal of judicial protection for religious freedom.


    Thomas Jefferson's description of "the constitutional freedom of religion" as "the most inalienable and sacred of all human rights"(11) reflects, more or less accurately, an understanding that has prevailed during much of our history.(12) That understanding generates a serious problem: what is the justification for affording special constitutional protection to religious freedom? Our constitutional scheme, of course, is vitally concerned with human freedom generally.(13) However, most aspects of that freedom receive only generic protection through provisions designed to ensure, for example, democractic government and due process of law. Yet a few freedoms have historically been singled out and elevated to special constitutional status. Religious freedom has been one of these.(14) The question is, why? How did religion, as opposed to other candidates for special protection, such as economic interests, come to achieve distinct recognition as a centerpiece in our constitutional system?(15)

    1. The Religious Justification

      As a historical matter, the answer to that question has often taken the form of a religious justification.(16) In current discourse, however, this explanation is less familiar, and may even seem counterintuitive. Consequently, it will be useful to spell out the religious justification before considering its role in our constitutional history.

      The religious justification has been stated in various ways and with varying degrees of elaboration. The essential argument can be presented in the form of two claims: the priority claim and the voluntariness claim. The priority claim asserts that "religious goods"--that is, the distinctive goods, benefits, or blessings toward which religious beliefs and practices are directed--are more valuable or more important than most or perhaps all other human goods. The idea is expressed in The Bible: "For what is a man profited if he gains the whole world, and loses his own soul?"(17) The priority claim can also be made in more deontological terms: religious duties take precedence over other duties, including nonreligious legal or...

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