For the past few years, disputes over religious liberty has been very prominent parts of the American legal and political agenda. No observer of the state of religion in our nation can fail to be struck by the series of difficult and contentious controversies. The HHS mandate and the redefinition of marriage are just the most recent examples that have brought the conflict into stark view.
This conflict has attracted a great deal of attention from legal and political scholars. In my view, no book does a better job of explaining its background and likely future course than the recent sobering work by Steven Smith, The Rise and Decline of American Religious Freedom. Prof. Smith is one of the leading scholars of religious liberty, which might scare people off from this book. But his writing is remarkably accessible to non-experts, and anyone with a basic knowledge of American history would find it a fascinating and compelling read.
The basic thesis of the book is to contrast what Prof. Smith calls the “standard story” of American religious liberty, which is generally accepted and taught in academia, with a “revised story” that he proposes as a better explanation for where we’ve come from and where we’re going.
The “standard story”, in essence:
tells how, under the influence of the Enlightenment, the American founders broke away from the intolerance and dogmatism of centuries of Christendom and courageously set out on a radical new experiment in religious liberty. More specifically, the founders adopted a Constitution that committed the nation to the separation of religion from government and thus to secular governance that would be neutral toward religion. These commitments were not immediately realized… Even now the achievement is under threat… mainly from religious conservatives…
This basic description of the “standard story” should be familiar to all, since it is reflected in Supreme Court decisions and the general public debate about the role of religion in our society. It is the story that I learned in law school, and, I imagine, that is taught in every high school and college history and political science class. It is the story of the alleged “wall of separation” that keeps push religious groups and ideas out of the public square. It is the reason that our courts and legislatures increasingly find little reason to accommodate or protect unpopular religious beliefs and practices. Prof. Smith says that the general acceptance of the “standard story” has reached such a point that nobody feels a need to explain or defend it. Instead, it has become one of those things of which people say, “as we all know…”
According to Prof. Smith, the problem with the “standard story” is that it is actually false in many significant respects. Instead, he proposes a “revised story” that better explains the history of American religious liberty in key ways:
In the end, Prof. Smith is pessimistic about the future of religious freedom in America, and he believes that life in our nation will suffer as a result. Given all that we have seen in recent years, it is difficult to disagree with him. One thinks of the intransigent refusal of legislatures to grant sufficient conscience clause exemptions from laws redefining marriage, or expanding availability of contraception or abortion. Or we can cite the Administration’s denial of the right of religious organizations to choose their own ministers, according to the dictates of their faith. And there is always the rhetorical tactic of certain politicians to brand religious believers as “extremists” who are unwelcome in their own home states. Or the tendency of judicial opinions to brand religious beliefs on marriage as irrational hatred or bigotry.
This book is an important contribution to the ongoing debate over the role of religion in contemporary society. It provides a much-needed balance to the “standard story”, which has dominated the public discussion and the law-making process. It is essential that legal professionals, policy makers, and engaged citizens understand the true history of religious liberty.
Prof. Smith reminds us all that religious liberty is very fragile, but it is very important to a healthy American society. Such a fundamental freedom, deeply rooted in American and Western history, cannot be so lightly thrown away, or forced to depend on narrow majorities of the Supreme Court. In particular, he warns us that “states that fail to protect religious freedom usually trample on other freedoms as well”.