Last update: 2018-06-11 17:19:43
In April of 2008, on the South Lawn of the White House, an exchange occurred which summarized much of the past and present of religious freedom in the United States. Welcoming Pope Benedict XVI to America, President Bush offered these words to the Holy Father on what to expect during his visit: “Here in America you'll find a nation that welcomes the role of faith in the public square. When our Founders declared our nation's independence, they rested their case on an appeal to the ‘laws of nature, and of nature's God.’ We believe in religious liberty. We also believe that a love for freedom and a common moral law are written into every human heart, and that these constitute the firm foundation on which any successful free society must be built. Here in America, you'll find a nation that is fully modern, yet guided by ancient and eternal truths. The United States is the most innovative, creative and dynamic country on earth – it is also among the most religious. In our nation, faith and reason coexist in harmony. This is one of our country's greatest strengths, and one of the reasons that our land remains a beacon of hope and opportunity for millions across the world.” And Pope Benedict responded: “From the dawn of the Republic, America’s quest for freedom has been guided by the conviction that the principles governing political and social life are intimately linked to a moral order based on the dominion of God the Creator. The framers of this nation’s founding documents drew upon this conviction when they proclaimed the ‘self-evident truth’ that all men are created equal and endowed with inalienable rights grounded in the laws of nature and of nature’s God. The course of American history demonstrates the difficulties, the struggles, and the great intellectual and moral resolve which were demanded to shape a society which faithfully embodied these noble principles. In that process, which forged the soul of the nation, religious beliefs were a constant inspiration and driving force, as for example in the struggle against slavery and in the civil rights movement. In our time too, particularly in moments of crisis, Americans continue to find their strength in a commitment to this patrimony of shared ideals and aspirations.” And so, in front of the house where every American president except the first, George Washington, has lived, and in the highest state ceremony the U.S. can offer, a Methodist President exchanged views on natural law, religious freedom, and American history with a Pope whose presence at a major university in Rome, his own see, had been deemed unwelcome by faculty three months before. The Pope, who is evidently an admirer of the institutional arrangements that govern religious freedom and that aim to balance secular and spiritual spheres in the U.S., emphasized this point to American bishops: “America is also a land of great faith. Your people are remarkable for their religious fervor and they take pride in belonging to a worshipping community. They have confidence in God, and they do not hesitate to bring moral arguments rooted in biblical faith into their public discourse. Respect for freedom of religion is deeply ingrained in the American consciousness - a fact which has contributed to this country's attraction for generations of immigrants, seeking a home where they can worship freely in accordance with their beliefs.” Most Americans of all faiths (though perhaps not most of the American faculty colleagues of the professors at La Sapienza who turned away the Pope) would agree with the Pope’s assessment. But while the Pope and the President spoke accurately of the basic ideas which have made faith an integral force in shaping American political development and cultural life, the actual history of the practice of religious freedom in America is complicated and often unflattering. It is worth recalling first the outlines of the legal history of religious freedom in the U.S., then examining the questions surrounding religious freedom and expression in America today, and finally considering briefly what trends and factors might alter the direction of public religious questions in the future. Legal Aspects Most Americans subscribe to the “standard story” of religious freedom in America, beginning with the arrival of the Pilgrim Fathers in search of the right to worship as they chose and the establishment of freedom of religion in the Constitution. But as Kevin Seamus Hasson of the Becket Fund for Religious Liberty documents in his 2005 book, The Right to Be Wrong, the truth of American religious history is far different, with complications and conflicts that continue to this day. The Puritans sought a space where they could practice their stringent form of Christianity, a form that rejected the Anglican Church as still excessively tied to “impure” Catholic practice. Because these Puritans regarded all other religious belief as wrong, they tolerated no dissent, banishing dissidents while torturing and executing persistent Quaker “heretics.” Elsewhere in colonial America, shortly after Maryland’s founding as a Catholic colony, Catholic leaders were sent back to England in chains, and Catholic practice was suppressed in Maryland for much of the eighteenth century. Catholic Mass was not legal in South Carolina until 1790, and Jews could not hold public office in North Carolina until 1868. From this early history of competing brands of limited tolerance and outright intolerance, the Founding Fathers took important but incomplete conceptual steps towards a fuller legal basis for religious liberty. As Michael Novak has shown, the authors of the Declaration of Independence and the Constitution were generally men of faith, and they did not hesitate to refer to God in their public statements and letters. They were believers in and practitioners of the harmonious combination of faith and reason of which President Bush spoke in greeting the Pope. Many believed that religion was essential to the survival and success of freedom in a society, a notion strengthened by the observations of Alexis de Tocqueville in his travels through early nineteenth-century America. According to Hasson, James Madison was among the first to conceive of freedom of worship as a right accorded by God rather than a privilege granted by the state, an important development in the installation of what some might recognize as natural law in American thinking. But even John Locke, whose thinking was likely a direct or indirect point of departure for Madison’s ideas, limited his own conception of the application of this natural law to Protestants, as many Americans would continue to do after the founding of the republic. Madison’s was not an immediately or widely accepted view. Others argued for state taxes to fund particular religious institutions, others for the right of states (as opposed to the federal government) to establish religious tests for public office, as most did. The language eventually adopted in the First Amendment to the Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… ,” proved to be of little immediate value in furthering religious liberty for non-Protestants. The language was deemed to apply only to the Federal government, while the states remained free to apply religious tests for office (generally excluding Jews and Catholics) or introduce restrictions on funding for “sectarian” schools (i.e., the so-called Blaine Amendments preventing the use of public funds for Catholic schools enacted during the years of heavy Catholic immigration in the latter half of the 1800s). The courts interpreted the “exercise” of religion as essentially tantamount to belief alone, while acts flowing from that belief were not protected. The two centuries of jurisprudence interpreting the First Amendment have produced few clear guidelines and much confusion, as contemporary Supreme Court justices from across the spectrum of opinion recognize. Again from Hasson’s Right to be Wrong, “Arch-secularist Justice Stevens has derided the ‘Sisyphean task of trying to patch together the blurred, indistinct, and variable barrier [between Church and State] that the Court had managed to create.’ He isn’t the only one complaining. …[Retired] Justice O’Connor has warned that the Court’s establishment clause jurisprudence was confusing to the lower courts, which in turn were ‘making it more and more amorphous and distorted.’ And Justice Kennedy has criticized the Court’s approach as ‘flawed in its fundamentals and unworkable in practice.’ Conservative Justice Scalia writes that ‘we are now so bold that we no longer feel the need even to pretend that our haphazard course of establishment clause decisions is governed by any principle.’” Thus, in legal terms, religious freedom in America operates under unclear guidelines, attempting to navigate (and often careening) between a view that demands an absolute and inviolable wall between church and state, including a strict proscription on prayer or religious expression in the public sphere, with another view that sees faith and its expression as an essential part of American political discourse and as the fundamental guiding force in the direction the nation should take. These arguments manifest themselves, for most Americans, in questions of whether prayer is to be permitted in public schools, whether nativity scenes and menorahs can be displayed on public grounds, or whether state courts may display the Ten Commandments as a reference to God’s original laws. Organizations such as the American Civil Liberties Union fight to remove any vestige of religion from American public life; at the moment, for example, the ACLU is suing the government of the District of Columbia for its decision to transfer a homeless shelter to a Christian organization and is opposing noon prayer at the U.S. Naval Academy. The opposing view, calling for a “religiously informed public philosophy for the ordering of society,” is led by, among others, Father Richard John Neuhaus, head of the Institute on Religion and Public Life and editor of the journal First Things, and the Catholic thinker and biographer of Pope John Paul II, George Weigel. National Memory If the legal basis for determining exactly what religious practice and expression are allowed and prohibited under the law is unclear and subject to continued conflict and controversy, what actually works well about religion in the United States? What would be the basis for Pope Benedict’s admiration for how religion thrives in America? As a start, while the history of religious freedom in the U.S. is much more checkered than most Americans realize, the place of religious freedom in America’s self-image, its national mythology, is secure. Details of Puritan persecution of dissenters are forgotten, but the value of the religious freedom they sought, if only for themselves, is secure in the national memory. The legal debates over religion’s place in the public square, to use Father Neuhaus’ phrase, will rage and will be of great consequence to the nation, but the idea of freedom of worship on the part of individual citizens is beyond serious question at the moment. Perhaps the most important factor that has produced the success of religious freedom in America is the application of rights to individuals rather than to categories of persons. The theory of rights that has guided American political thinking, from Madison and the founders on, has emphasized the rights of individual persons because of their dignity as humans and because God granted, in natural laws that the state cannot circumscribe, the full rights associated with an individual’s humanity. These rights accrue to citizens, or individuals, not to kings or organizations or churches, and individuals collectively grant the state’s leaders that authority and sovereignty needed to govern. In the religious sphere, this view revealed an early conflict in the American colonies. Roger Williams, a Puritan dissident who founded Rhode Island as a haven of religious tolerance (which it did not long remain), believed in contradiction to the Puritans that God’s will demanded individual choice in religion. Hasson quotes Williams: “Forced worship stinks in God’s nostrils. …It is the will and command of God [for] permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, to be granted to all men in all nations and countries.” This stress on individual conscience, coming from the man who became the first minister of America’s first Baptist church, is fundamentally compatible with the kind of personalism espoused by Pope John Paul II. But it is incompatible with the granting of rights, in particular of religious freedom, only to categories of people. It is also incompatible ultimately with a radical individualism which says that truth is only what each person perceives or imagines it to be. Williams based his view on his understanding of God’s will, which is to say, his view of a universal truth. This basic belief in the existence of a universal truth, which appears in the Declaration of Independence and the writings of the Founders, underpins the American idea of human rights as those rights that have been conceived over time, and it is essentially in concord with contemporary Catholic teaching. As Pope Benedict XVI told the United Nations in April of 2008, remarking on the 60th Anniversary of the UN Declaration on Human Rights, “[T]he universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity. It is evident, though, that the rights recognized and expounded in the [UN] Declaration apply to everyone by virtue of the common origin of the person, who remains the high-point of God's creative design for the world and for history. They are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights.” In the American context, the emphasis on individual liberties led to the Constitutional clause prohibiting the Federal establishment of an official religion, and in time it led (along with an influx of non-Protestant immigrants who enjoyed tremendous success in American culture and society) to the end of religious tests for public office. Just as the contradiction between universal rights based on universal truths and slavery eventually led to a reordering of states’ rights and a civil war that ended slavery, the contradiction between underlying American notions of universal truths produced a more religiously tolerant society, both in law and in practice. At the same time, the American experience led away from state-supported churches and allowed the growth of religious pluralism. Some argue that this “consumer choice” among religions is not just morally right, as Williams argued, but essential to the broad sustainment of religious faith in America, as the opportunity to choose one’s faith both lets individuals practice as they see fit (or at least as they feel comfortable) and avoids the reaction against the pressure of externally enforced conscience. Plenipotentiary Ambassador A further factor that contributes to the success of American religious liberty is the predominant view that faith and reason are compatible and, in fact, essential to one another and to a successful citizen’s life. This is by no means a universally held view in the U.S., but over the course of the nation’s history, faith has been seen as compatible with and supportive of the view that man can improve his situation through the application of his talents and reason. The mythological American faith in progress, or optimism, was and is a faith in God and reason working together. This was the combination referred to by President Bush, and it is a favorite subject of Pope Benedict XVI. Indeed, in announcing the Pope’s April visit, the White House noted that the President and the Pope would continue their discussions on faith and reason, based on their earlier conversations. Americans are sufficiently confident in their own view of religious liberty that they seek to propagate it abroad. In President Bush’s National Security Strategy, which describes the President’s Freedom Agenda in foreign policy, religious liberty is called “the first freedom.” Congress in 1998 established a U.S. Commission on International Religious Freedom that evaluates the status of religious freedom in other countries and reports its findings annually. The same legislation established a position at the Department of State for an ambassador at large for international religious freedom. This effort to further religious freedom is based on the same ideas as the Vatican’s efforts to further religious liberty as a human right. If religious freedom as it stands today in the U.S. is the result of a legally difficult past, and if the courts continue to muddle through the problems of sorting out permitted public expressions of faith from those which would breach some ill-defined separation of church and state, Americans feel free in practice to follow their own individual consciences and are confident that this right is a robust feature of American society. What might change this state of affairs? In the nearer term, the success of organizations like the ACLU to create a public space devoid of religious expression would have a deleterious effect. The failure of advocates like Father Neuhaus to sustain room for a religiously informed political philosophy would change fundamentally the nature of public discourse in America as it has transpired in the first 219 years since the adoption of the Constitution. By removing any public expressions of support for religion, society would inevitably signal the declining role of faith in national life, and American political governance would be deprived of the benefits of the truth that faith brings. For now, this seems unlikely. President Bush’s initiative to support faith-based organizations, while proving difficult in practice and limited in scope, drew objections but no overwhelming opposition in principle. In the 2008 presidential campaign, both candidates subjected themselves to an interview with a leading evangelical minister to discuss their faith and how it would shape their policies. They did so because Americans demand to know how their leaders answer such questions. In the longer term, a shift to a view of human rights ascribed to categories rather than individuals would undermine the essential humanism that has guided America’s approach to political freedom. Likewise, a further shift away from the essential combination of faith and reason towards a reliance on reason alone, as appears to have happened in many parts of Europe and in American universities, would represent a catastrophe for those who see America as fortunate because of, not despite, its persistent conviction that both faith and reason lead to truth. The ascendance of a view that tolerance must include tolerating the actions of those whose intolerance would eradicate freedom of religion, be they Islamist or radical secular humanists, would at least chip away at religious and other liberties. But perhaps the greatest threat to the success of religious freedom in the U.S. would be the collapse of belief in the idea of universal and discernible truth beyond the material, and the success of the idea that no such truth exists. Without that broadly accepted faith in universal truth, or God, no real freedom can be sustained, and a society is left to consume the moral capital of earlier generations while generating only nihilism for the future. If America avoids this renunciation of the most fundamental ideas of its founders, future Presidents and Popes should be able to converse on shared beliefs and on the underlying strength of religion and religious freedom in the American republic.