Americans are rightly proud of our tradition of religious liberty. The founders recognized that religious convictions cut very deeply into the soul, making people capable of great sacrifices—and often stimulating bitter conflicts and terrible persecutions. Thus we have the First Amendment and its definition of the first freedom: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
We need to recognize, however, that our approach to religious freedom has in fact changed a great deal in the more than 200 years of national history. These changes reflect shifts in the overarching religious consensus in the United States. By my reading of the signs of the times, this consensus is changing yet again. The shift foretells a renegotiation and redefinition of the nature and scope of religious liberty—one that I fear will not favor religious believers.
Historical Context
There have been three main phases or agreements about religious liberty in our country. The first was a federalism that recognized local forms of establishment but wished to keep the national government out of the religion business. The second corresponded to the long century of ecumenical Protestant hegemony that naturally intertwined itself with state power. And the third, which followed the Second World War, has been characterized by a move toward religious neutrality.
Phase One. At the time the Constitution was written, the Congregational Church was established in Massachusetts and Connecticut, and it received public support from tax revenue. In Georgia and South Carolina, the Anglican or Episcopal Church was established. It was not until Everson v. Board of Education in 1947 that the Supreme Court stipulated that non-establishment and free exercise applied to the states as well as the federal government. Nevertheless, soon after the nation was founded, elite opinion consolidated around a view that government should remain at a distance from religion. This consensus had two sources: one focused on the rights of individual conscience and the other on the integrity of the church as an independent institution.
This position led to disestablishment in the states, culminating with Massachusetts in 1830. It is important to recognize, however, that this consensus was very pro-religion. Political and cultural leaders did not want any particular denomination to have privileged access to state power, but they were in favor of a religious society and thus a religiously inspired public culture. Or, to be more accurate, they were in favor of a Protestant society and a Protestant-inspired government.
Phase Two. By the time of crusading Abolitionism and the formation of the Republican Party in 1854, the ascendancy of a pan-Protestant consensus was in full swing. It reached its high point with Prohibition. A person can still find public monuments in many American cities dedicated to the crusade against demon rum. They often feature an expanded list of theological virtues: faith, hope, love—and temperance. The insertion of “under God” into the Pledge of Allegiance in 1954 was a late, defensive expression of the power of this consensus, which was already being challenged by a new secularism.
The Protestant consensus encouraged anti-Catholicism in culture as well as law. In 1875 President Ulysses S. Grant urged the creation of public schools “unmixed with sectarian, pagan or atheistical dogmas.” Non-sectarian and non-atheistical meant schools that could be trusted to inculcate American values, meaning generic and non-dogmatic Protestant values, which were considered the finest expression of true freedom. Here religious freedom means the freedom to be a generic Protestant, with Catholicism grudgingly tolerated at best, and Mormons subject to intense persecution. The courts interpreted religious freedom accordingly.
The Protestant consensus became more capacious as the 20th century wore on. After World War II it expanded to include Judaism and Catholicism, and we came to think of ourselves as a religious nation committed to Judeo-Christian values. But as the religious consensus expanded, it also eroded. Influential writers like H. L. Mencken mocked religious believers, reflecting an increasingly confident and outspoken view that religion—especially traditional Christianity—is a social liability that hinders progress. Many factors contributed to this emerging opinion. The abject failure of Prohibition soured many on Protestantism’s crusading spirit. Newly emerging Protestant fundamentalism was self-consciously antagonistic and reflected an anti-establishment populism. For many the threat to society changed. Whatever their personal beliefs, the founders thought religion good for society and atheism a threat. By contrast, for someone like Mr. Mencken or Clarence Darrow or Margaret Sanger, religion was the problem.
Phase Three. Our constitutional interpretation came to reflect this new development. It shifted toward an ideal of religious neutrality. The Supreme Court decision in 1947 that applied the prohibition of religious establishment to the states led to the development of a complex set of legal rules limiting the role of religion in public life.
Law professors rightly seek to clarify this jurisprudence, but for our purposes I think a broad but largely accurate simplification will suffice: our constitutional law concerning religious liberty sought to secure an orderly separation of religion from the social influence the Protestant era had encouraged. This separation has helped protect small religious minorities from undue public control, but the major emphasis has been on restraining the influence of religious majorities.
Preoccupations with prayer at high school graduation ceremonies provide the most obvious example. The court has been eager to protect the tender conscience of the lonely, unbelieving student from the supposedly great social pressures of an anodyne interdenominational prayer by a local pastor. The danger is not that a hardline Calvinist will impose his doctrines on wishy-washy Methodists, which the founders worried about. Instead, the court after World War II reflected a broader concern that believers of all stripes are too predominant and therefore make unbelievers feel uncomfortable and excluded. Freedom of religion therefore means the option of being free from religion. I believe this emphasis will characterize the next phase of our history: the shift from individual freedom from religion to a vision of society as a whole free from religious influence.
The Anti-Religious Cohort
Over the last few decades the Mencken cohort has grown. In the 1950s around 3 percent of Americans checked the “none” box in surveys asking about religious affiliation. Now 20 percent of the population does so. Moreover, these so-called “nones” are heavily represented in elite culture. A recent report on family life from the University of Virginia’s Institute for Advanced Studies in Culture identifies parents they call the “engaged progressives.” Representing 21 percent of parents, this group is the most highly educated and most influential. It overlaps with the nones. Fewer than 20 percent in this group go to church regularly. More than half never attend.
In itself this demographic change need not foretell dramatic changes in law. A significant segment of Americans who do not go to church might support the now established postwar trend toward religious neutrality: the belief that the country needs to make space for unbelievers and not presume their adherence to a religious consensus, however vague. But the nones and engaged progressives are not just irreligious. They are often anti-religious and eager to limit the influence of traditional Christianity.
As the study observes, engaged progressive parents value tolerance and diversity, but their overall moral outlook puts them at odds with many religious people. Nones and engaged progressives overwhelming support abortion and gay marriage, for example. They are also highly partisan; an overwhelming majority vote for liberal candidates and have thus become a key pillar of the Democratic Party. This moral and political profile makes them hostile to traditional religion. The study explains: “The only type of diversity that engaged progressives might tacitly oppose within their children’s friendship network would be a born-again Christian.”
The anti-religious instinct of this cohort came into the open during the last election cycle. Delegates to the Democratic National Convention notoriously struck the word God from the party platform, only to have it halfheartedly restored by anxious party leaders. During the election the talking points included attacking the Republican “war on women.” This well-crafted slogan was designed to rally the nones, the secular base that is now the largest identifiable constituency in the Democratic Party.
Institutions of cultural authority tell us what is good and respectable—and what is bad and shameful. It is now crushingly obvious that this machinery, which can include museums, universities, foundations or mainstream media, reflects many of the values of the nones and engaged progressives. From their point of view, traditional Christianity is quaint when confined to exotic liturgies or remote Amish communities, but it most certainly should not influence the future of American culture and politics.
This shift toward antagonism cannot help but affect our attitudes toward religious liberty. Our Constitution accords rights to the people, and the courts cannot void them willy-nilly. Therefore, unless the Constitution is amended, there will always be a prohibition of establishment and a right of free exercise. But history shows that the Constitution is a plastic document. When elite culture thinks something is bad for society as a whole, judges find ways to suppress it. In the late 19th century, for example, the First Amendment offered no protection for Mormons. In 1890 the Supreme Court upheld the Edmunds-Tucker Act of 1887, legislation that prohibited polygamy and dissolved the Church of Jesus Christ of Latter-day Saints and confiscated its property.
Trends in Jurisprudence
Not surprisingly, law professors today who view traditional Christianity as a social threat are beginning to theorize changes to the law. I see three trends. The first and most obvious involves what I have called the Selma analogy: the equation of gay liberation with the historic struggle for civil rights for black Americans. The second shifts from freedom of religion to freedom of worship. The third hopes to redefine religious liberty as a general liberty of conscience.
The civil rights laws adopted in the 1960s were designed to bulldoze racism out of American public life, and the Selma analogy prepares the way for a narrowing of religious freedom by equating dissent from progressive values with discrimination. Proponents of gay rights, for example, believe the freedom of religious individuals and institutions should be limited if they do not conform to the new consensus about sexual morality.
Some judges already agree. In 2008 the New Mexico Human Rights Commission determined that wedding photographers violated the state’s anti-discrimination law by refusing to photograph a lesbian commitment ceremony. The photographers, Elaine and Jonathan Huguenin, appealed to the New Mexico Supreme Court, arguing that their religious views about marriage prevented them from photographing the ceremony. The court was not sympathetic. It applied what is called the “public accommodation doctrine” of civil rights law: those offering services to the general public may not discriminate. This doctrine overrides a great deal of what we think of as religious liberty.
In a concurring opinion Justice Richard C. Bosson put it clearly: “The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead,” but “in the smaller, more focused world of the marketplace, of commerce, of public accommodation,” they have to abide by anti-discrimination laws. This is “the price of citizenship,” he wrote. Apparently this price includes the violation of religious conscience when it comes to gay rights, which makes it seem that religious freedom is only allowed in the privacy of home or the precincts of church.
The shift toward a private, personal freedom that lacks space for public expression has become prominent in the ways the Obama administration talks about religious freedom. The International Religious Freedom Act of 1998 sought to make religious freedom a diplomatic priority. The current administration consistently reframes this priority as freedom of worship. The shift in language is understandable. The United States has many allies in the Muslim world for whom anything like our approach to religious liberty is at best a remote possibility. For different reasons the same is the case in China and elsewhere. The danger, however, is that this narrow understanding of religious freedom will gain traction in our domestic debates and become another way for legal theorists to argue for a minimal interpretation of the First Amendment.
The Selma analogy and the diminution of religious liberty to a bare freedom of worship represent two ways to redefine the First Amendment. Added to these, I see a third and more dramatic threat: today some law professors ask why religious people should get special rights in the first place. Why should a Catholic or a Baptist or a Hindu get special constitutional protection, but not a committed utilitarian or ardent socialist? Evoking the principle of fairness, some now argue that the conscience of every person needs legal protection, not just consciences formed by religious traditions. Thus the First Amendment needs to be reinterpreted to provide freedom of conscience, not freedom of religion.
This mentality is libertarian and is gaining traction, not the least because it seems to expand rather than limit freedom. (Even representatives of the church can sometimes seem to imply this when they focus on conscience.) But the promise of expansion is an illusion. Libertarianism theorizes an unworkable system: If the conscience of every person must be equally respected, then we will have freedom of conscience only when nothing important is at stake.
There is no guarantee that our legal culture will follow the trajectories I have outlined. Judges are influenced by good legal arguments, and the defenders of religious freedom today may succeed in breaking down the Selma analogy and reverse the trend to attenuate religious freedom by redefining it as freedom of worship. The current membership of the U.S. Supreme Court has shown itself very firmly aligned with a robust approach to religious freedom. There are reasons to be hopeful in the near term. But history shows that the rule of law generally reflects what the social consensus believes is conducive to the common good. The law ministers to culture, not the other way around. The nones and other progressives are frustrated by the influence of traditional Christianity over American society. This makes me pessimistic about the medium and long term.
The Heart of the Conflict
To be blunt: Religious people who hold traditional values are in the way of what many powerful people want. We are in the way of widespread acceptance of abortion, unrestricted embryonic stem cell research and experimentation with fetal tissue. We are in the way of doctor-assisted suicide, euthanasia and the mercy-killing of genetically defective infants. We are in the way of new reproductive technologies, which will become more important as our society makes sex more sterile. We are in the way of gay rights and the redefinition of marriage. We are in the way of the nones and the engaged progressives and their larger goal of deconstructing traditional moral limits so that they can be reconstructed in accord with their vision of the future.
Traditional religious people are in the way, and many of our fellow Americans are doing their best to push us out of the way. The outspoken among us have been largely expelled from higher education and other institutions of cultural authority. This exclusion should not surprise us. Traditional Christianity and churchgoing no longer define the social consensus in the United States. The Protestant era is over, and in its demise we have not seen the Catholic moment that the Rev. Richard John Neuhaus, founder of First Things, hoped for. Instead, we seem to be heading into the secular moment, which is almost certain to find ways to redefine religious liberty, or at least try.
In Islamic states, a dhimmi is a non-Muslim who is tolerated, but whose social existence is carefully circumscribed to ensure no threat to Muslim dominance. Have we reached the point at which our secular elites envision something similar for religious people with traditional values? We will be free to worship, but not to run universities or hospitals or social service agencies in accord with our principles. We will be free to believe as we wish, but not to run our businesses in accord with our beliefs. We will be permitted to exist as long as we do not openly challenge the progressive consensus.
Religious people need to support the good legal minds fighting for our freedom, but it is even more important that we fight against the temptation to accept dhimmitude. Yes, antagonism toward traditional Christianity is now common in our ruling class. One prejudice warmly approved by many secularists is that against so-called fundamentalists. But we need to remember that the secular moment does not correspond to religious decline. The committed core of believers, defined as those who attend church every Sunday, has remained remarkably constant for the last 50 years at between 25 to 35 percent of the population in the United States. Furthermore, the secular moment has no grassroots legacy to compare with the scope and commitment of the pro-life and home-schooling movements.
It is appropriate to conclude, therefore, with words of encouragement. Last summer a young Dominican brother studying for the priesthood served as an intern for First Things. He is an impressive man, one of a remarkable cohort of 20 who entered the Dominican Friars of the Province of St. Joseph a few years ago to begin formation. As I walked with him on the streets of New York City, I noticed that people often stare at his white, ankle-length outfit. Unlike the often-wild fashion statements that people parade as great expressions of protest or individuality but blend into the city as just another pose or posture, his simple habit represents something dangerously real. People intuit, however dimly, that he embodies a vision of the future that collides with the spirit of our age, and does so with frightening force.
Seeing these reactions I was reminded that our faith goes deep, very deep. And as the guardian and servant of this faith the church has tremendous power. As I contemplate the coming battles over religious freedom, I am consoled by this thought: Our secular challengers are right, very right, to see our faith as a dangerous and disruptive dissent.
This article has been revised to reflect the following correction:
Correction: February 25, 2014
Due to an error introduced during the editing process, an earlier version of this article misidentified the date of the International Religious Freedom Act. It was 1998, not 1988.
