Religious freedom is declining in the United States. If the history of freedom were graphed, this would be the lowest point in a curve since the 1960s, when the Supreme Court issued several momentous decisions on school prayer. Our level of religious freedom is falling, and all signs indicate that it will continue to do so.
In his new book, The Rise and Decline of American Religious Freedom, University of San Diego law professor Steven D. Smith notes this trend and explains its causes. In this sense, the book is pessimistic. Yet there is a hopeful note in the midst of this pessimism. According to Smith, the original genius of the United States, what he calls “the American settlement,” which used to protect religious freedom, has long been lost. But is it gone forever? Nothing lasts forever in this world, the author reminds us, including governments. But here’s the hopeful part: Smith argues that, although it will be difficult, it is still possible to recover what made the United States a land of free and flourishing belief.
The concept of the American settlement is central to the book. It is worth examining in detail because it reveals Smith’s intellectual penetration into the roots of the rise and decline of religious freedom in the United States. “The American settlement” is the name that Smith gives to the distinctively American version of religious freedom, under which, Smith writes:
religious freedom expanded, the nation grew more religiously inclusive and the secular and religious perspectives often managed not only to coexist but also to collaborate in supporting a pluralistic but more or less united people.
The American settlement is both a wildly provocative concept and an enlightening one. It is provocative because it tells a different story about the constitutional commitment to religious freedom, and it is enlightening because it illuminates the potential of the religion clauses of the First Amendment.
A Provocative History
Departing from the standard history of religious freedom in the United States at critical points, Smith offers a refreshing account of the constitutional architecture of religious freedom and of the sources that inspire this interpretation. Many of the elements in this story will not be new to a reader familiar with the topic, but Smith assembles them masterfully, garnering new truths through his presentation.
Perhaps the most provocative aspect of Smith’s historical revision concerns the originality of the American experiment. According to Smith, the constitutional commitment to religious freedom was not a product of the Enlightenment born out of radical distrust for religion, as is widely believed. Rather, the American Constitution expresses continuity with a tradition that originated nearly 2,000 years ago when Christ said “Render unto Caesar what is Caesar’s and to God what is God’s.” In Smith’s words, “American religious freedom was not so much a repudiation of and departure from the Christian past as a retrieval and consolidation of that past.”
Two factors characterize the essentially Christian American settlement: the separation of church and state and the sacredness of conscience. The separation of church and state reflects Christ’s teaching on the two jurisdictions, one temporal (Caesar) and one spiritual (God, through the Church). Smith tells us that this Christian concept of dual jurisdiction “had the potential to support what Americans would later call a separation of church and state.”
Moreover, Christianity consecrated conscience with a dignity previously unknown to the pagan world. Because the faith that saves can only be confessed voluntarily, freedom is essential for the religion. Smith cites some eloquent words of Lactantius, advisor of Constantine and tutor to his children: “Liberty has chosen to dwell in religion. For nothing is so much a matter of free will as religion, and no one can be required to worship what he does not will to worship.” These words could very well be those of any of the founding fathers during the drafting process of the religion clauses of the Constitution.
Space for Religion and Dissent?
The distinctive genius of American government and society is revealed in the fact that implementing these twin principles of freedom of the church and freedom of conscience created the space necessary for the development of religion. This original approach toward the challenges of religion in a pluralistic society is at the core of Smith’s vision of the American settlement.
One of the hallmarks of the American settlement is the intentional “agnosticism” of the Constitution on certain points. Think, for example, of the various interpretations of the newly formed American republic, such as the “providential” (Jasper Adams, Joseph Story) and the “secularist” (Thomas Jefferson, James Madison) interpretations. The Constitution does not embrace either version, but provides the framework for both to disagree yet coexist. Smith sums it up well:
The religion clauses of the First Amendment came to be an anchor for hard constitutional commitments to church-state separation and to freedom of conscience . . . While providing the encompassing structure within which Americans have dealt with the challenge of religious pluralism, however, those hard commitments did not dictate the entire content of the American approach…. Although nearly all Americans have embraced that basic commitment, interpretations of the commitment have differed, sometimes dramatically. And an essential feature of the American settlement was that interpretations were allowed to differ.
Of course, the mechanism was not perfect, Smith says, but it worked. That is, until the Supreme Court threw it all away.
By interpreting the Constitution as if the religion clauses express an implicit “principle of neutrality,” the Supreme Court collapsed the very structure created by the Constitution, which was supported by the pillars of federalism, separation of powers, and a broad religious consensus. The principle of church-state separation is now interpreted in a way that inhibits the flourishing of religion. By attributing a commitment to secularism to the Constitution, the Supreme Court has abolished the constitutional space for dissent.
Smith criticizes this judicial trend as being instrumental in the decline of religious freedom. But is it an irreversible process? Smith gives no definitive answer. This may seem disappointing, but this is one of the best reasons to read the book. If we imagine the struggle for religious freedom as a chess game, Smith would tell us that religion has been checked by its opponent—secularism. But it has not yet been checkmated. It is still possible to win the game, but before making any moves, the arrangement of the board should be carefully studied.
Reading Smith’s book is like studying the board. Smith pinpoints the series of moves that have put religious freedom in such an uncomfortable situation. He concisely summarizes the logic of secular neutrality that dominates modern American jurisprudence:
religious freedom means that the state must treat people of all religions (or none) equally, . . . which in turn entails that the state must remain neutral in matters of religion… which entails that the state must remain secular. . . which entails that the state cannot act or endorse religious views or rationales.
Smith deftly dismantles the main arguments of secularist discourse, calling the principle of neutrality a “sort of political optical illusion” and exposing the principle of secular egalitarianism as a “New Orthodoxy” that does not tolerate dissenting voices.
Christianity and the Individual Conscience
One of the book’s most valuable contributions is Smith’s discussion of conscience, although his analysis is lacking in certain key respects. Smith explains that with the rise of Christianity, religion ceased to be purely formal. In Christianity, assent to the truth was transferred from the external focus to the person; religion was “internalized.” Along with the “internalization” of religion, a commitment to truth emerged, and with it, the Church’s role in preserving and teaching the truth. The content of the new faith was understood to be extremely important, because eternal life depended on it.
While this is a valid and interesting observation, Smith fails to properly emphasize the consequences of the Protestant Reformation for the current decline of religious freedom. Quoting Thomas Paine’s declaration that “My own mind is my own church,” Smith highlights the way that even a skeptic such as Paine uses the notion of church to justify freedom from political power. According to Smith, this confirms the broad scope and effectiveness of the principle of the two jurisdictions (church and state, the spiritual and the temporal).
But Smith does not seem to realize that the jurisdiction claimed by Paine does not belong to the church but to the individual conscience. Centuries after the ascent of the Christian church, the Protestant Reformation shook the church from its magisterial role, transferring authority to the individual conscience, the “inner church.” The church was replaced, and individual conscience became its own teacher of truth. As a result, most believe that there is no longer a single truth safeguarded by the church, but as many truths as our own consciences claim. And this is precisely the reason why all religions should be treated equally and that the state should be declared “neutral” toward religion.
The Protestant Reformation changed the terms of the discussion. The question ceased to be the relationship between church and state, becoming instead the relationship between religion and government. From the moment the Reformation asserted the autonomy of conscience from the truth, religion was separated from the church. And from the time that religion was separated from the church, the state was separated from religion.
The Future of American Religious Freedom
In the book’s final chapter, Smith asks if the last chapter in the history of religious freedom in the United States is being written. In view of the profound historical, theological, and political changes experienced since the First Amendment was drafted, does it still make sense to reserve a special place for religion in the Constitution? Considering that the Supreme Court has rejected or forgotten or misunderstood the American settlement, what guarantees the existence of a religious space free from government interference?
These questions make Smith sound pessimistic, but his answer is, “it depends.” Depends on what? It depends on the vitality of the church. As Smith puts it, “the fate of religious freedom will likely depend to a large extent on the fortunes of the church.”
Religion is not an inertly good thing. Religion is not an archaeological site, which is protected because it is part of our history. Religion takes on the meaning of the present. So as long as religion is alive, there will be freedom to practice. In the words of Smith, “If the church continues to be a vigorous and vital institution in society, religious freedom will probably be okay.”
This is the glimmer of hope in Smith's book.
Luis A. Silva is a 2013-2014 William E. Simon Visiting Fellow in Religion and Public Life at Princeton University and Professor of Constitutional Law at Universidad de los Andes Law School. He holds a JD from the Catholic University of Chile and a PhD in Constitutional Law from Universidad de los Andes.