15 February 2015


'The Last Chapter?' by Steven D. Smith in (2014) 41 Pepperdine Law Review 903 comments
In November 2011, Stanford law professor (and former federal judge) Michael McConnell debated Harvard law professor Noah Feldman at Georgetown University on the topic “What’s So Special about Religious Freedom?” McConnell reminded the audience that the First Amendment singles out religion for special protection, and he argued that this treatment continues to be appropriate today. For his part, Feldman conceded the first half of McConnell’s argument: the First Amendment provides, and framers like Madison supposed, that religious freedom is deserving of special protection. But that supposition is no longer justified, Feldman argued. The Constitution’s special treatment of religion was based on historical conditions and theological commitments that happened to prevail at the founding. But conditions are different now, and in a modern liberal state it is unacceptable for government to act on theological rationales.
Feldman’s position did not appear to be driven by any animosity toward religion. Nor is any such animosity evident in his other work. Religious belief and expression should still be protected under other constitutional provisions, he insisted, such as freedom of speech. But there is no longer any warrant for singling out religious freedom as a special constitutional commitment.
Ordinary citizens might suppose that Feldman’s position was radical, perhaps calculated to provoke (as academic positions sometimes are). Is it really plausible that we would repudiate what many have long regarded as “the first freedom”– one that, by Feldman’s own admission the framers favored and gave pride of place in the Bill of Rights? Far from being audacious, though, in an academic environment Feldman’s argument might more accurately be characterized as ho-hum. In recent years scholars and theorists have increasingly gravitated to this conclusion in one form or another. A few of these scholars are pretty plainly disdainful of religion, but others (including Feldman) are not; indeed, some think they are acting and arguing in the interest of religion.
Thus Douglas Laycock, himself a leading scholar and litigator of religious freedom, reports that “scholars from all points on the spectrum now question whether there is any modern justification for religious liberty.” Nor is it only academics who are skeptical of special protection for religious freedom. The Obama Administration’s positions in the much discussed “contraception mandate” controversy and in the less prominent but (for present purposes) more pointed “ministerial exception” case strongly suggest that the Administration is similarly disinclined to favor special legal protection for religion. In general, the administration argued in the ministerial exception case, churches and religious associations should enjoy the same freedom of association that nonreligious associations have—no less, but also no more. There should be no special constitutional protection covering the right of churches to select ministers according to their own faith-based criteria and judgments. (We will look more closely at the “ministerial exception” case in due course.)
Professor Laycock, himself a vigorous proponent of religious liberty, worries that “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.” Once again, though, the argument usually is not that religion or religious freedom should be suppressed – as they were in, say, the Soviet Union, or in the Mexico depicted in Graham Greene’s The Power and the Glory — but only that there is no justification for singling out freedom of religion for special recognition. Think of it this way: In the American constitutional tradition, we sometimes talk generically about “freedom” or “liberty” — and this generic liberty receives minimal constitutional protection — but we also have a list of particular and especially cherished freedoms that enjoy special judicial and political solicitude: freedom of speech, freedom of the press, freedom of assembly, and so forth. Traditionally, freedom of religion has been on that list — even at the top of the list. Challenging this tradition, Feldman and like-minded thinkers want to take freedom of religion off the VIP list, so to speak, while allowing that religious people and groups should receive the same protection that others receive under the other freedoms.
If this proposal comes to be accepted, the outcome would be in one sense the last chapter of the story of American religious freedom. The story would then tell how, building on themes that had developed over the past two millennia, founding-era Americans conceived of religious freedom as deserving of respect and legal protection, how this commitment informed commitments to other rights, such as freedom of speech, and how those other rights eventually displaced the ancestral commitment to freedom of religion. It is not self-evident that this denouement would be tragic: after all, ancestors are pretty much progenitors who are remembered, even revered, but who are not around anymore. So it would be in this case. Religious freedom RIP.
And yet there are those, like McConnell and Laycock (and also — full disclosure— myself) who are not enthused about ending the story now or in this way, and who would view such an ending as premature and deeply unfortunate. Those who are not ready for the story to end seemingly include (for now, in alternate terms anyway) the Justices of the Supreme Court.
Thus the Court rejected the Obama Administration’s Feldman-like position in the ministerial exception case — and not in a 5-4 conservative/liberal split, but unanimously, and emphatically. So it seems the story is not necessarily winding down.
And indeed, one might ask: If the founders favored a special commitment to religious freedom, expressly writing it into the Constitution, and if many Americans still favor that position, why amend constitutional jurisprudence to strike freedom of religion from the list of specially preferred liberties? It is a formidable question, I think, and it will reappear from time to time in this chapter. But it is also a real question, not a rhetorical one: it is not a question calculated to intimidate opponents (like Feldman) into embarrassed submission. On the contrary.
So in this chapter we will look at two large-scale historic developments that have combined to make religious freedom a vulnerable constitutional commitment. Edward Gibbon famously argued that the Roman Empire fell as a result of one internal development (the rise of Christianity) and one more external development (the incursions of the so-called “barbarians”). In an analogous way, the regime of religious freedom is currently in jeopardy through the convergence of one development that is partly internal to the tradition of religious freedom and a different development that is mostly independent of that tradition. The internal development is the erosion of the rationales for religious freedom by a secularism that, ironically, can be seen as an implication or at least an offshoot of religious freedom itself. The mostly independent development is the impressive advance of a formidable political and cultural movement that marches under the banner of “equality” and that bids to become a new national orthodoxy with features reminiscent of those that characterized state-supported orthodoxies during the centuries of Christendom.