THE RISE AND DECLINE OF AMERICAN RELIGIOUS FREEDOM
By Steven D. Smith
Published by Harvard University Press, $39.95
Steven Smith's new book, The Rise and Decline of American Religious Freedom, is provocative but woefully uneven in its treatment of this increasingly contentious and important topic. Smith, a law professor at the University of San Diego, wants to demonstrate that the "received" understanding of how First Amendment jurisprudence developed from the Founding Fathers until the present is deeply flawed and that he has arrived just in time to correct the record.
Smith takes issue with what he terms the "standard accounts" of the novelty of the First Amendment's separation of church and state, stated most clearly in Hugo Black's majority opinion in Everson v. Board of Education in 1947. Black told a tale of horribles about religious persecution pre-1776, and how a group of enlightened secularists, led by Thomas Jefferson and James Madison, put an end to all that by placing a "wall of separation" between the spiritual and temporal realms and by enshrining liberty of conscience in the nation's founding documents.
Sadly, in his arguments (and in his footnotes), Smith gives no indication of any real familiarity with the vast historiography of the American founding. Anyone who writes about the religious history of the American founding and does not cite the work of Patricia Bonomi is not being serious.
Any account that, like Black's, fails to take note of the antecedents in Christian thought to Enlightenment ideas about church-state relations and the rights of conscience becomes a kind of caricature. And, of course, the American founding occurred at a time when American culture was dripping in religion, albeit a viciously anti-Catholic Protestantism. But the way to correct one caricature is not to provide another.
In Smith's telling, even Jefferson was a "providentialist," the founders were aware of the Christian pedigree of their Enlightenment ideas, and their decision to adopt the First Amendment was no big deal.
I would contrast this conclusion with that of noted evangelical historian Mark Noll, a man who is not allergic to noticing and analyzing religious influences in American history. Noll wrote that it is "very difficult to see explicit biblical influences on the founding documents of the United States or in the political thinking of even the evangelical founders like John Witherspoon."
The book gets better. Smith's take on how the religion clauses of the First Amendment were understood in the 19th and first half of the 20th century is compelling. He argues that there were two schools of thought, one inclined to allow a providentialist interpretation and the other a more secular interpretation of the First Amendment.
The providentialists wanted prayer in the schools, religious displays in the public square -- in short, a kind of civil religion, largely if not exclusively Protestant, but mostly tolerant and ecumenical. Secularists wanted none of that. Combined with federalism -- the Supreme Court did not apply the religion clauses to the states until the mid-20th century -- and a "soft constitutionalism" that relied on custom more than hard, ideologically strict court decisions, this allowed what Smith calls "the American settlement," a patchwork of local approaches in which neither the providentialists nor the secularists ever won the right to call their interpretation authoritative.
"The genius of the American settlement was that instead of officially elevating one or the other of those interpretations to the status of constitutional orthodoxy and condemning the other as constitutional heresy, the American approach left the matter open for We the People to reflect on and debate and negotiate on an ongoing basis," Smith writes.
Smith notes there were problems with this benign "American settlement." He writes, "Religious minorities sometimes suffered estrangement, persecution, even violence." He acknowledges there was "real human suffering." But, he contends, in the late 20th century, when the Supreme Court did raise the secularist interpretation to the status of constitutional orthodoxy, the tensions unleashed created the potential for even more social strife. Hence, the "culture wars."
The problem, however, is deeper. Whatever one thinks of Smith's constitutional arguments, I am unaware of the existence of the First Providentialist Church in any city I know. Smith writes, "Providentialists declare that God works in history, that it is important as a people to acknowledge this providential superintendence, and that the community should actively instill such beliefs in citizens as a basis of civic virtue."
But I do not "declare that God works in history" the way a fundamentalist Baptist "declares that God works in history."
I believe that the "providential superintendence" of God must be acknowledged in sacraments that some Protestants deny are sacraments. And whether religion furthers or inhibits civic virtue has nothing to do with whether the claims of faith are true -- which is what should matter when worshiping God, yes? As a Catholic, my beliefs find no validation in whether or not they promote civic virtue. They find validation in the Gospels, the teachings and traditions of the church, and the current witness of the followers of Christ.
The civic religion for which Smith pines is a big, big step toward secularization -- even if he and like-minded conservatives are loathe to admit it -- because the God of civic religion is the God of the deists, and there are no more deists. We all believe in one or another kind of interfering God.
Smith's analysis of more recent Supreme Court jurisprudence highlights the awkward ways our society deals with the competing claims of ardent believers, religious and secular, with the need for a society to find ways for everyone to get along. He correctly challenges the presumption that neutrality must default to secularism when, in fact, permitting all views to have a voice in the public square would be more fair. Smith correctly challenges the presumptive claims of egalitarianism to be the only important constitutional value.
Still, Smith's agenda is too transparent, and his conclusions too conventional among certain conservative intellectuals, for us to look to him for answers to the conundrums he evaluates. He writes, "If the baseline prescribes that government must be secular, for example, as modern Supreme Court decisions suppose, then government will be neutral by foregoing public prayer (which is religious), and by teaching evolution (which is secular) but not teaching creationism (which is deemed to be religious) -- even if these policies effectively reject some citizens' religious views." Deemed? I do not want creationism taught in the schools because it is hogwash. I say this as a believer.
And here is the problem with Smith's analysis. We Catholics may be "providentialists," but we also think creationism is quackery, we do not want it taught in public schools and we are glad the courts have banned it. The narrative Smith creates does not resolve the tension he wishes to alleviate because not all "providentialists" believe the same things, and the resulting conflicts end up in the courts. In sum, Smith's book provokes but it does not satisfy.
[Michael Sean Winters writes about politics and religion on his blog, Distinctly Catholic.]