Religious Freedom in America: Constitutional Roots and Contemporary Challenges
Reviewed by Jerold Waltman, Political Science, Baylor University
The papers representing the 10 chapters of this book grew out of a symposium sponsored by the Religious Freedom Project at the University of Oklahoma; it is the inaugural volume in the University of Oklahoma Press’s new series on the American Constitutional Heritage. The usual rubs on edited volumes are, first, that the chapters do not cohere closely around a central theme and, second, that the contributions are of uneven quality. Even when these critiques are apt, though, a volume may still contain essays with valuable insights. The rubs are both applicable here, it must be said; the first in perhaps attenuated form, but the qualifier is equally pertinent, as the best papers are very good indeed.
Allen Hertzke begins the volume with a critical analysis of James Madison’s views on church and state. It is hard to write anything original on Madison, but Hertzke manages it. He argues that since Madison saw religious liberty as preceding and overriding one’s political commitments, religious liberty is the “first freedom” not in the chronological sense (criminal due process rights could make that claim) but in the sense that “it embodies a person’s highest, especially transcendent, obligations.” And, perhaps more controversially, the freedom is not “inherently individualistic” but includes the “church in its institutional expression” (9). He then surveys the upcoming chapters, which is understandable in a volume such as this; I would have personally preferred, though, more explication on Madison.
Two excellent chapters by renowned scholars, Thomas Kidd and Victor Munoz, follow. Kidd’s piece, drawn largely from his recent book, lays out the place of Patrick Henry in the Virginia disestablishment controversy. Kidd shows that Henry’s position, favoring what we call “free exercise” but maintaining that public virtue is helped by having an established church, deserves more respect than it has normally been given. Munoz develops and defends classifying James Madison as a Libertarian, George Washington as a Conservative, and Thomas Jefferson as a Progressive when it comes to church-state matters, then relates their ideas, albeit briefly, to Justice Hugo Black’s interpretation of the establishment clause.
The two most original papers in the book come next. Steven Green contends that we have neglected the 19th century when we write the history of the establishment clause. We focus so much intellectual energy on the founding period that we overlook the fact that developments in the 19th century heavily influenced modern American church-state policy and jurisprudence. “In many ways,” this second disestablishment, as Green calls it, had an “impact on American law and society [that] was as significant as the earlier political disestablishment. This second phase involved legal and institutional disestablishment, a gradual process of secularizing the law and the institutions of state and local governments” (74). He carefully examines the most important institution involved in this gradual disestablishment, the public schools, providing some fascinating detail.
As is well known, from 1963 to 1990 the courts applied the “compelling interest test” when deciding free exercise cases. That is, to deny someone an exemption from a generally applicable law if the claim for exemption was based on religious grounds, the government had to show a compelling interest in uniformly enforcing the law. Then, in 1990 the Supreme Court overturned the test and said any exemptions had to be granted by the legislative branch. Congress reacted by passing the Religious Freedom Restoration Act (RFRA) in 1993, which ordered the courts to reinstate the compelling interest test. Four years later, the Supreme Court declared RFRA unconstitutional (as applied to state and local governments). While undoubtedly frustrating for lawyers and judges, this train of events has set up an almost controlled experiment for social scientists examining lower court decisions in religious liberty cases. Robert Martin and Roger Finke have done just that, performing an insightful quantitative assessment testing several hypotheses. Among other things, they find that RFRA made a significant difference to the outcomes of cases and that minority religious groups more often resort to the courts than more established churches.
Three chapters on contemporary jurisprudential controversies—a search for common ground in the debate over religion in the public schools, reproductive issues, and same-sex marriage—make up the next section. All include analyses, but are also somewhat normative in character. I found the most helpful portion to be Robin Fretwell Wilson’s dispassionate discussion of the various contraceptive approaches at issue in the controversy over the Affordable Care Act’s mandate.
The final two chapters discuss the roles of Sikhs and Muslims in the constitutional order. One can think of other groups that perhaps should have been included, but these are certainly defensible choices. Rajdeep Singh’s chapter on Sikhs is quite informative, laying out the history of the Sikh minority in the United States and demonstrating how their theology and practices have influenced the stances they have taken toward a number of legal issues, especially at the state level. They have consistently supported wider religious liberty, both for themselves and others. Awkwardly, the chapter on Muslims does not measure up to the standard of the one on Sikhs. For example, it contends that anti-Muslim sentiment in the United States is largely generated by the machinations of a handful of individuals. Further, it simply glosses over a number of important theoretical and practical issues. This is a shame, because a judicious and informed discussion of the Muslim position regarding religion and the state in the contemporary United States is sorely needed. In the late 19th century, as has often been noted, given the Catholic Church’s antagonism to democracy and liberalism, American Catholics had some legitimate questions to answer. Of course, answer them they did, and today it is hard to imagine anything more American than the United States Catholic Church. Similarly, today, Muslims have legitimate questions to answer about the stance of some of their co-religionists in a liberal democracy. There are answers, of course, but they need to be thoughtful rather than simplistic ones, especially ones that merely blame others.
In short, there is much to be digested here by people interested in religious liberty. Diverse papers somewhat in search of a theme (aside from the broad sweep of the subtitle)? Yes. Uneven quality? Yes. Worthwhile reading? Certainly.