The free exercise thereof.

• Author: Carter, Stephen L.

This Essay is about the freedom of religion, which raises the possibility that it is also about the existence of God. Ever since the Supreme Court's first classroom prayer decisions, back in the early 1960s, constitutional scholars and judges alike have premised their analysis of religious freedom questions on assumptions about the existence of God that may fairly be described as skeptical--including, most emphatically, the stance that is usually, but inaccurately, referred to as "neutral." For example, in Lyng v. Northwest Indian Cemetery Protective Ass'n,(1) when the Court allowed the Forest Service to open to logging and roadbuilding lands that three Indian tribes held sacred, the Justices explained, with evident sincerity, that this result was neutral toward the religion of the tribes. But the effect of the logging, as even the Court conceded, was to devastate the tribes' religious traditions, which would hardly seem neutral from the point of view of the Native American believer. A member of one of the tribes surely would find the Lyng decision a horrific interference with religious freedom; and the fact on which the Court relied, that the destruction of the tribes' religion was accidental rather than intentional, would be scant comfort.

Beginning in the mid-1980s, a Court majority led by Justice Antonin Scalia has followed the same "neutrality" principle in over half a dozen cases, ruling for the state on subjects ranging from forbidding the wearing of a yarmulke while in military uniform(2) to being forced, in contravention of religious principles, to obtain a Social Security number for a child.(3) The lower federal courts and, lately, the state courts have been caught up in the same trend, ruling for the state in one case after the other,(4) with the unsettling result that only religions possessing sufficient political clout to protect themselves are able to operate relatively free from state interference. So pronounced has the trend become that some scholars have pessimistically declared the death of free exercise of religion.(5) More cautious critics have argued that the Justices are undervaluing the benefits that flow from genuine religious diversity and that, far from being neutral, the courts treat the religions that lose these cases--usually, but not always, the powerless--as presumptively false.(6) Implicit in this last criticism is the notion that the Justices likely would treat their own religions as being at least potentially true. Conduct of the sort demanded by the Western tradition--especially the Protestant tradition--is immediately recognized as religious; conduct of other kinds is seen as marginal to religious life. Thus, the Native Americans involved in Lyng cannot really need the forests; worship is basically how one prays (so the Justices must have reasoned), and nobody is interfering with that. Beyond that, we are free to follow the teachings of our religions up to the edge of the law but no further--even though the laws are drafted with some religions, and not others, in mind. (Nobody proposes to build a road through the Cathedral of St. John the Divine.) Applied in this manner, the neutrality rule itself becomes a kind of establishment of religion: establishing freedom for religions that look and operate like the denominations of the American Protestant tradition.

One need not accept the accuracy of this increasingly common polemical stance to recognize the seed of an important question. Some scholars have defended religious freedom on the ground that because the state does not know any facts about God, official skepticism (which carries an implicit official invitation to private pluralism) is the only sensible stand. But consider the matter the other way around: Over the years, any number of scholars--Stanley Fish is perhaps the most recent--have questioned whether a deeply religious individual can possibly be committed to the liberal values of pluralism and dialogue. The religiously devout, Fish argues, are less interested in participating in the marketplace of ideas than in shutting it down.(7) Despite the polemical cast of the argument, it raises a crucial challenge for advocates of religious freedom: to explain why anybody who is absolutely sure that God exists and is knowable ever would believe in religious freedom for others, except, perhaps, as a transitionary tool until the believer and his friends accumulate enough resources to force everybody else to toe their theological line. More carefully put, the question is whether only a skeptic or a nonbeliever could conclude that religious freedom is valuable as a permanent good.(8)

This conundrum matters--and not simply to religious believers who want to display their tolerance. If Fish and other critics are right in thinking that true believers cannot truly believe in religious freedom and religious pluralism as valuable for their own sake, the ability of the religious to support the liberal state is called into question because the religious freedom that liberalism trumpets becomes a trivial sideshow rather than one of its main attractions. After all, if the citizens whom we might call True Believers cannot support religious freedom, it follows that those who support religious freedom cannot be fellow True Believers (or, at best, are lying about one or the other of their affirmations). Thus the liberal state suddenly fits the caricature put forth by many of its critics: a state run by Nonbelievers who tolerate but at bottom scorn the True Believers. So rather than G.K. Chesterton's famous description of America as "a nation with the soul of a church," we would have a nation that pretends to have the soul of a church.

The challenge is more difficult than it may seem. It is not enough to answer with the traditional response of Christian theology that it is pointless for True Believer to capture the apparatus of the state and coerce Nonbeliever, because God's offer of grace must be accepted voluntarily for the acceptance to have any effect. The critic could easily reply that this is still merely a transitional justification for the free exercise of religion, that, deep down, True Believer remains certain that all is not right with the world until everybody understands God in the same way that he does. In other words, True Believer does not believe in religious freedom in the sense of religious pluralism, and certainly not for its own sake; he believes in pluralism as a necessary interlude before all his fellow citizens are True Believers too, like a Marxist who thinks the state must wither away before true socialism can take hold. So his true vision of pluralism is akin to the way that Locke believed in tolerance: tolerance of all the right ideas about God.(9)

Nor is it enough to respond, as some contemporary theologians have, that religious pluralism is of value even for True Believer who, by studying the ways in which others have found the path to God, might gain a richer understanding of his own faith and his own relationship to the Divine.(10) In this case, religious pluralism is useful only as an adjunct to True Believer's own search; after the search is concluded, the value of pluralism to him is no longer clear. Moreover, no matter what True Believer learns from the (false) understandings of others, his ultimate goal is not a diversity of beliefs; his ultimate goal is that everybody's understandings be True.

In this Essay, I try to take up Fish's challenge, explaining why one could fully believe in God--in particular, the transcendent Creator-God common to the great Western religions--and yet not only believe in religious freedom but also believe in the value of genuine religious pluralism. The Essay is only a speculation, and a relatively modest one at that. I certainly do not claim that strong religious belief somehow entails support for religious freedom and religious pluralism; too much tragic history makes mock of any such claim.

I.

Rather than taking refuge in abstraction, I will from the start be personal. Let me begin with a profession of my own faith, at least as much of it as is relevant to the subject matter of the paper. I will set out that profession of faith as a set of three principles, only one of which I will subsequently argue for. I must begin this way because I intend to speculate on what theory of religious freedom we might create were we to begin not with a neutral or skeptical assumption, but rather with a set of assumptions about religious truth.

The three principles are these:

(1) God exists. In particular, the transcendent Creator-God familiar to the great Western religions, Christianity, Judaism, and Islam exists. And if the Creator-God exists, God has a Nature and a Will that human beings might dimly perceive.

(2) The human task is to struggle toward God. Although I make this a separate point, the medieval theologians argued that if the Creator-God is real and transcendent, it follows that human beings have an absolute duty to order their lives in accordance with God's will.(11) If God exists, moreover, then God's will is not relative but absolute: God wills X, not Y, and all those who think God wills Y rather than X are wrong. So the human task is to discern X and then do it. This, of course, is a vision of what form of life is best for people, and might therefore seem to be forbidden as a motivating force of the liberal state. But this is true only if the struggle toward God is defined in a way that limits rather than exalts human possibility; more to the point, if it is only a description rather than a prescription, it need make no difference whatever in the choices or conduct of any particular individual.

These first two premises, although not of course shared by everybody, at least have the virtue of being relatively uncontroversial among professional theologians. Acceptance of the third, however, might require (dare I say it?) a leap of faith--or at least, for the moment...