Michael Zuckert’s Liberty Forum essay does an excellent job of bringing to light ambiguities and tensions that have always been present in the notion of religious freedom. He is certainly right that there is no Pure Theory of Religious Freedom, which, if only we can grasp it and make it universally accepted, would resolve all the controversies regarding the relations between religion and politics. Certainly there is no such pure theory somehow to be uncovered in the original meaning of the Constitution or in the unified mind of The Founders.
Still, this skepticism regarding a Pure and Original Theory of Religious Freedom in no way absolves us from an obligation to learn what we can from the Founders’ . . . dare I say “wisdom” regarding a wholesome and viable understanding of religious freedom. Times have changed, and the problems we face are not exactly those faced by Madison and Washington, for example; but if we think there might be some constants in human nature, some permanent features of the human condition, then it’s possible at least that the Founders saw some things more clearly than we did, and we ought to be interested what these might be. Is there any stable wisdom beneath the “intersection” of agendas that Zuckert uncovers? Is there any insight we might recover that could provide a key to preserving “freedom of religion” against the obsolescence of “freedom for” and the aggressive confidence of “freedom from”?
There is no question but that “freedom of religion” is the hero of Zuckert’s analysis. If we are not to be overwhelmed and undone by “the great constitutional and political battles over the place of religious freedom in American political life,” then it is in the rhetorical range covered by this locution, in the “overlap” held together by this “of,” that Zuckert believes we will locate “a core or center of religious freedom in America.”
The core idea of “freedom of religion” for Zuckert is simply that “true religious practice must be uncoerced” and that, accordingly, “the state has no business either prescribing or proscribing any item of religious belief or practice so far as these are religious.” This indeed corresponds to the uncontroversial common sense of American liberal democracy. Only his qualification, “or practice so far as these are religious,” points to controversies that trouble the consensual formulation. For it is precisely because the border between religion and politics is hard to discern and to fix that the “core” meaning of religious freedom is elusive.
By making the Puritans the prototype of “freedom for religion,” Zuckert clearly distances himself most markedly from this position. And it indeed seems wise to avoid the Puritan idea that there is one true solution to the “human political problem.” But it is worth noting that the form of this idea, and even the essence of this solution in “the reign of love and charity,” might now resonate as a Progressive slogan—minus Christ and commandments and all that, of course. “Love wins,” indeed. Progressive love (or compassion or tolerance) now advances as the one solution that is so true that it does not even need to assert its Truth as a religious or philosophical dogma, since it does not see any conflict between its pure post-Christian love and the liberal ideal of freedom. “Love has no labels.” But Christian love of course enjoys no such political and rhetorical advantage; in its Puritan form (and not only in this form), it is associated, as Zuckert points out, with the explicit promotion of “the one true faith,” and therefore can have no political standing in a pluralistic society.
Zuckert acknowledges a later and more moderate version of “freedom for religion,” adapted to a pluralistic setting and touting religion “as a salutary moral force”; this version “mandates neutrality between different religions, but not between religion and non-religion.” The problem with any such non-neutral view, according to Zuckert, is that the boundaries of “the claims of [religious] conscience . . . are rather undefined and unclear.” In other words, the unreasonable dogmatism of the Puritans still threatens in the milder modern version of the “freedom for” position. It is no accident that Zuckert traces this position to John Winthrop and not, say, to George Washington, surely a notable advocate of religious freedom understood positively as conducive to the good ends of religion. Washington’s public and moral religion is still tainted, from Zuckert’s point of view, by Winthrop’s cruel dogmatism.
This is not to say that Zuckert does not also identify problems on the “Left” of the religious freedom perspective, that is, among the “freedom from religion” crowd. “Freedom from religion,” he explains, “implies an actively hostile relation between state and church” and it “escapes the core meaning of American religious freedom, in its way, just as much as Puritan theocracy did in its way.” But the reader can see Zuckert’s preferred “freedom of” tipping subtly towards “freedom from” when he qualifies his critique of anti-religious policy or interpretation with the term “overt”: “overt action against religion is no part of religious freedom in America.” (Emphasis added.) In fact the difference between “freedom for” and “freedom of” in Zuckert’s understanding seems to come down to overt opposition versus more subtle or implicit opposition to the influence of religion in public life and in our common self-understanding.
Here is the author’s key premise: “More purely than the ‘freedom of’ position, adherents of ‘freedom from’ posit the ground and purpose of the state in completely nonreligious terms.” (Emphasis added.) “Freedom of” is, then, essentially a less lucid form of “freedom from.” The insight or dogma they share is precisely that the purpose of the state can be conceived “in completely nonreligious terms.” And Zuckert shares this view. Once one grants, with Zuckert, the premise that there is not only a workable practical difference, but an absolute philosophical distinction, between “secular” and “religious” purposes—and that, whereas religion is by nature purely “voluntary,” the state alone exercises legitimate “coercion”—it follows, as it does for Michael Zuckert, that “valid secular purposes always outweigh claims of conscience.” (Emphasis added.)
Zuckert’s key premise is that “freedom of religion” is an “offshoot” of liberalism, and liberalism is the doctrine that limits the state to purely “secular” purposes. But the problem with Lockean rational secularism transferred to today’s political world may be put this way: The “secular” may be said in our times to have left behind the “rational” and to have abandoned the limits on the scope and power of government once implied by the term “secular.” Locke’s idea of rational government was closely tied up with the limited purposes of a limited government. Obviously this limitation of the “rational” in the Founding period greatly facilitated a practical consensus that included religious enthusiasts, the overlapping of rational and religious purposes that prevailed under the rhetoric of “freedom of.” Now, however, a “secular” view implies a practically unlimited view of the aims of government—that is, as long as these aims are not “religious” in the traditional sense.
Once the secular has taken leave of the rational and the limited, it becomes fair to ask whether secularism does not operate as secular religion, shaping institutions, habits, and beliefs to its communion. What Zuckert asks is: “does school prayer, when students have a readily available way to opt out, nonetheless coerce via the subtle social pressures that can be bought to bear on a dissenter?” But must not this kind of question be put to secularists as well, including to members of what we might call the freedom-of-as-freedom-from camp? Does not the allegedly “secular” (if not rational) governmental purpose of “non-discrimination,” and the increasingly boundless actions taken to enforce this purpose, clearly influence opinions, attitudes, fundamental worldviews? Are not these actions in pursuit of this purpose the shapers of souls—as any established orthodoxy must be? Does not secularized “freedom of” tend to serve a new religion of liberationist love?
Given the pronounced drift of secularism away from the limiting framework of Locke’s rationalism, it is fair to ask who is closer to Locke’s views today, or who shares with him, and with our more separationist Founders, a fundamental insight into the conditions of religious freedom. As is well known, Thomas Jefferson and James Madison opposed multi-denominational assessments, and it is within this context that they insisted (more than did any other leading Founders) upon the separation of organized religion from governmental policy and authority.
It would be wrong to identify their views with those of contemporary secularists. Jefferson and Madison both favored separation precisely because they saw it as the surest means encourage a society’s vital interest in higher truths. Thus Madison’s view—as stated in the famous “Memorial and Remonstrance Against Religious Assessments” circulated in Virginia in 1785— that government should stay out of religious questions altogether was based upon the priority of man’s “duty toward the Creator . . . to the claims of civil society.” Madison was more opposed to governmental support for religion than many of his Founding colleagues precisely because he believed that the joint prosperity of religious and of civil society is best secured by their strict separation. His rhetoric is indeed more “progressive” than was the norm for the Founders, as we can see from the Madisonian enthusiasm for “leveling as far as possible, every obstacle to the victorious progress of truth.” But it must not be overlooked that he continues to associate this progressive truth with “the diffusion of the light of Christianity.”
Jefferson’s views of religion were still more unconventional, and he looked forward to a day when Unitarianism (and not, after all, the formless “secularism” apparently favored by Zuckert) would replace traditional Christianity as the dominant American religion. But even in Jefferson’s case, it is important to note that he by no means celebrates pure individual freedom as a self-sufficient ethic but trusts ultimately in the progressive effects of “Reason and free enquiry” to support the emergence of “the true religion.” As in the case of Madison, Jefferson’s progressivism is rooted not in a dismissal of any universal moral truth, but in a confidence that “the truth can stand by itself,” as he writes in his Notes on the State of Virginia. And this truth is by no means a purely secular truth of individual self-interest and political utility, but indeed has at its center the “pure and perfect” moral teachings of Jesus, which include an ethic of universal love for humankind.
Michael Zuckert proposes the Declaration’s “affirmation of human equality as the starting point for a proper theory of politics.” But the Declaration’s actually starting point is not the sheer assertion of equality but rather the proposition that all human beings are created equal, and equally subject to the laws of nature and Nature’s God. Whatever our Founders’ disagreements regarding religion and national law, policy and rhetoric, none of them adopted the position of pure secularism as a public commitment to unlimited “non-religious” purposes. In any case, whether we favor Jefferson’s rights of a limited creature or the unlimited “secular purposes” of the contemporary freedom-of-as-freedom-from school, we really have not disproved the general theory of faith and politics Zuckert attributes to the “freedom for” school represented by John Winthrop: “the community must be composed of those who hold the right kind of faith and thus the right kind of love.”
This is simply to say: there have always been limits on “pluralism,” and there always will be. Our “secular” society is not an exception to Alexis de Tocqueville’s law that all political order depends on shared “dogmatic beliefs.” The category “secular,” as in “valid secular purposes,” does not dispel this necessity; it demonstrates it.
It is unsettling to recognize that the benefits of a “secular” political order derive from and ultimately depend upon the recognition of an authority held to be beyond politics. But the necessity of such an authority is a matter of quite simple logic: If there is no appeal beyond secular power, then that power is in principle absolute. This logic of secular absolutism is playing out in our politics today, as religious freedom is reduced to an increasingly fragile “exception” to the enforcement of new lifestyle “rights” (including a right to the radical redefinition of marriage itself). These rights are demanded on no authority but that of an emerging majority (of social and political elites, at least) that has only come into existence since our current President was first elected. Such rapidly changing public opinion (driven by the Progressive media and federal judges) cannot provide a very firm basis for our rights. Our first freedom, religious freedom, remains fundamental.
Every defense of freedom implies some understanding of freedom and its relation to truth. There is no way to secure freedom independent of a shared understanding of truth (albeit implicit and ever renegotiated). Of course it is natural, given the difficulty of articulating conceptions of truth regarding fundamental values that can be shared across deep cultural and religious differences, to wish for a conception of “rights” that can be defended as “neutral” with respect to basic beliefs regarding human ends or purposes. It is natural to wish for a conception of rights that would be valid for all people everywhere regardless of their particular conception of the human good. But the defense and enforcement of any “right” implies a common purpose, explicit or not. Universal human rights could only be truly and effectively established if human beings everywhere shared some understanding of life’s essential priorities, for these priorities will always be expressed in a regime of law, no matter what deference is paid to “rights” in the abstract.
As we debate the character of our laws, and the implications of the “social pressure” that is always inherent in a regime of laws, we owe it to ourselves to think very carefully about what we can learn from the Founders as well as how we must go beyond their thinking to address the challenges of our day. A vital question that can no longer be deferred is whether religious freedom is not inherently the first freedom—that is, whether freedom from the claims of the state does not depend upon a shared proposition concerning a truth beyond human power.
Michael Zuckert is right that there is no pure and neutral theory of “religious freedom.” But his attempt to advance “freedom of religion” accepts the premises of “freedom from religion” and rejects those of “freedom for religion.” In a worthy attempt to guide us through the present constitutional turmoil and confusion, he in fact succumbs to the illusion of a pure theory of the “secular” that would be neutral regarding conflicting understandings of the meaning or purpose of human existence.
But the posture of neutrality, or the comfortable confusion of “freedom of” with “freedom from,” is no longer an option for us. We 21st century Americans now confront two main opposing conceptions of the meaning of human existence, both of which have inescapably political implications. Unlike our Founders, still protected by the Lockean limitation of the “rational” under a commonly recognized God, we must choose between “freedom for” and “freedom from.” There will be no significant religious freedom, no right to practice traditional religion that represents a significant barrier to the religion of secularism, unless Americans can be persuaded, on the whole, that religion is a good thing. There will be freedom for religion, or there will be the state religion of secular compassion.