THE RISE AND DECLINE OF AMERICAN RELIGIOUS FREEDOM. By Steven D. Smith. (1) Cambridge, MA: Harvard University Press. 2014. Pp. 223. $39.95 (cloth).
Does the history of the Religion Clauses still matter? The answer appears to be increasingly irrelevant in the modern constitutional world. After all, questions such as "what if religion is not special?" and "why tolerate religion?" have recently gained remarkable traction in mainstream legal and philosophical scholarship. (3) These questions and the attitudes underlying them suggest a contemporary openness towards discarding a special solicitude for religion that was largely borne out of history. In many debates today, both inside and outside the courts, religious liberty claims are now seen as pretexts for discrimination, (4) not as the hard-won product of a long struggle for liberation from the temporal reach of divine revelation. (5) How did we get here?
One reason for the unmooring of contemporary questions and answers involving the Religion Clauses from its historical roots is the seeming inability of its own history to supply any coherent or meaningful answer to currently vexing questions surrounding religious freedom. Indeed, even the history itself is contested. The Supreme Court did not help in clarifying matters either when it issued contradictory rulings one after another. (6) While many scholars have been content to live with this arrangement, with one scholar calling the Establishment Clause largely irrelevant, (7) others continued the Herculean task of making sense of the doctrinal quagmire. (8) Whereas twelve years ago, two prominent legal scholars could describe the question of whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause as the most important church-state issue at the time, (9) today, religious questions are at the heart of an even more divisive, if not explosive, question in American society: the fight over gay rights and marriage equality. In this context, the history of the Clauses does not appear to offer any surefire ammunition for either side.
The present analysis takes at its point of departure the claims advanced by Professor Steven D. Smith, a law professor at the University of San Diego, and a prominent scholar of the Religion Clauses, in his new book The Rise and Decline of American Religious Freedom. Smith presents a revised narrative to the standard version of the story of American religious freedom. The principle of separation of church and state, he argues, was not an unprecedented American innovation, but an ideal that has ancient origins. Instead of being a distinctive product of the Enlightenment, Smith characterizes American religious freedom as a happy blending of explicitly Christian commitments with cosmopolitan pagan attitudes (p. 7), and that this convergence of ancient themes in an American package was unwittingly set aside by the Supreme Court when it inaugurated its modern Religion Clause jurisprudence in Everson v. Board of Education (10) (p. 46). Stepping firmly into the thicket of religion-state relations, the Court infused a substantive core into the Religion Clauses which originally had none--the Framers enacted them simply to reaffirm the jurisdictional status quo (p. 8), that is, that matters involving religion would remain the business of the states, and not the federal government. The result of this move was to undo a golden age of American religious freedom, one which is best described as a period of fluid contestation, whereby competing interpretations of the role of religion in American public life had a rightful place at the constitutional table. According to Smith, separation during this period meant separation of church from state, not necessarily religion from government (p. 9). Thanks to the Supreme Court, however, this substantive core, now containing the principle of secular equality, has become hard constitutional law (p. 10), any deviations from which are considered to be official heresy. Consequently, American society is now more divided than ever. Far from being a mere lamentation on the state of Religion Clause jurisprudence, this historical excursion serves as the backdrop to Smith's ultimate concern that American religious freedom is in jeopardy, not from religious conservatives but from secular egalitarians (p. 11).
These are radical claims. And yet both the premise and the implications of Smith's revised narrative have much to offer to current debates involving competing claims to religious liberty and antidiscrimination. Perhaps the account could be seen as a clarion call on the hurtling train of the new secular orthodoxy threatening to unravel the lively experiment of the past two hundred years. Of course, secular egalitarians would argue that the opposite is true. But even in that vein, this account could also be considered a confirmation of their beliefs, that their victories are merely recent and most of all fragile against the tyrannical forces of revealed religion.
In this review, I first briefly consider the uses of history in Religion Clause jurisprudence and question the need for deep origins in excavating the origins of the American principles of 10 separation of church and state and freedom of conscience. A mistaken resort to deep origins detracts from the political and material conditions which shaped the ideas involving religious freedom at the time of its drafting into the Constitution and diminishes the role of human agency. Subsequently, I evaluate Smith's argument that the Supreme Court ended the golden age of American religious freedom when it put a thumb onto the scale and transformed religious freedom questions and answers into hard constitutional law. I argue that these decisions, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores. In the last part of this essay, I pose a brief account of history and judicial review as two technologies of constraint.
These challenges are not intended to undermine the book's goal but rather to support it. If the objective is to keep the American pluralist experiment involving the place of religion in public life from prematurely ending, the solution is not to go back deep into an ancient, remote past or worse, discard history altogether, but it is to let "We the People" grapple with these difficult questions in political and legal circles, armed with a sense of their own past, and an eye cast towards a future that is yet to be written. By their very nature, these questions are open-ended. Within a constitutional tradition such as ours, the task for the courts is to keep that experiment alive.
THE PROBLEM OF DEEP ORIGINS
The distinctiveness of religion as a matter of U.S. constitutional law is seemingly reflected in the two prongs of the Religion Clauses: that of disestablishment and free exercise. At its core, these twin guarantees protect the right of Americans to freely practice their religion. But there universal agreement begins and ends. Since 1947, this unique formulation to protect the liberty of conscience has generated a massive amount of academic literature to explain why the Framers thought it was essential not only to guarantee free exercise but also to mandate disestablishment, and how those ideas could be made applicable within the context of our own time.
Not unlike those of other constitutional provisions, (11) the historical origins of the Religion Clauses not only provide a fascinating view into the eighteenth century world of the Founding generation but they also give the Supreme Court an authoritative ground for its decisions. Indeed, the first prong of the standard model of constitutional interpretation is history, which is to say, the reliance on the original intentions of the ratifiers or the framers of the Constitution. (12) As one commentator remarked, "[t]he past may be only prologue, but for the Supreme Court that prologue sometimes appears to direct the whole drama." (13) Even if one does not wholly subscribe to the originalist school of constitutional interpretation, the subject of which is beyond the scope of this Review, judicial divination of the original intent behind the Religion Clauses generates much normative work in existing cases. (14) Consider Justice Hugo Black's majority opinion in Everson, (15) a landmark case in Religion Clause jurisprudence which incorporated the Establishment Clause to apply as against the states, in addition to the federal government. Justice Black gave short shrift to the complex story of how the principle of religious liberty found roots in and thrived on American soil. Instead, he advanced what Noah Feldman called a "'shock' hypothesis" of religious liberty, (16) in which centuries of persecution before and contemporaneous with the Founding period largely provided the backdrop for the adoption of the Establishment Clause, in order to come up with the rationale that separation of church of state was intended by the Framers to protect religious minorities.
It is hardly controversial in legal academic circles to state that Everson was a modern invention of the Establishment Clause by the Court. Among the most well-known of these challenges is Philip Hamburger's massive tome, Separation of Church and State. In that book, Hamburger excoriated the Court's historical re appropriation as erroneously reading a separationist understanding into the First Amendment which had none, and attributed it to nativist, anti-Catholic sentiment, held by no less than Justice Black himself. (17) Similarly, Smith's Rise and Decline also takes Everson to task. But he does so for an entirely different reason. Smith argues that Everson failed to acknowledge the ancient roots of the American principles of separation of...