Religious Freedom: What Does It Mean? Do We Have It?
This article orginally appeared in the First Quarter issue of the Public Justice Report in 2000.
by James W. Skillen
Of course Americans enjoy religious freedom. We are the country that invented it, right? Freedom is our motto, and religious freedom is our First Freedom. Why then does the U.S. Supreme Court struggle so hard and so confusingly—to this very day—to make sense out of the religion clauses of the Constitution's First Amendment?
The still dominant "story" that tries to explain religious freedom goes something like this: In ancient times, people were not free when priests and aristocrats controlled society. Beginning with the Renaissance and the Reformation and culminating in the American and French Revolutions, ordinary people finally managed to throw off the yoke of church and aristocracy to become free. Freedom means being free to worship or defy God as one pleases; free to govern oneself and, with others, to set up a democratic government; free to own property and pursue science and technology without interference. The French revolutionaries went off track because a few of them gained too much power and used too much violence. Marxists later derailed for the same reason. The American experiment proved best. The Puritans laid the foundation with their quest for religious freedom and after a variety of experiments in other colonies, the new United States was born as the model of freedom based on separation of church and state.
This "story" of progress from oppression to freedom has some problems, however. It is a modern, "Enlightenment" story and is freighted with prejudice. Are people genuinely more free today, or are they held captive by the myth of self-sufficiency and self-governance that actually keeps them from true freedom found only in the service of God? Politically and legally speaking, have diverse faiths truly been set free or have they only been confined to privacy by the public establishment of secularism—by "the project of liberal constitutionalism," as Stephen Carter terms it in his The Dissent of the Governed? Did the Puritans really lay the foundations of religious freedom, or were they the last religious oppressors, having banished nonconformists like Roger Williams from their colony? And did John Calvin, the father of the Puritans, help spark modern religious freedom (since democracy seemed to follow wherever Calvinism spread), or was he one of Christendom's last oppressive defenders?
The Constitution's Religion Clauses
This is not the place to try to tell an entirely different story of the last five centuries or to try to answer all these important questions. It is the place, however, to introduce two important books that help to accomplish these purposes. The first is John Witte's Religion and the American Constitutional Experiment (Westview Press, 2000). Witte, a professor of law at Emory University, explains in the early chapters that constitutional rights and liberties, including religious liberty, have their roots in the early church of the late Roman period, not in early America. Moreover, Dutch constitutionalism, established after the revolt of the low countries against Spanish oppression, preceded the American Revolution by two centuries and provided the first model of constitutional government and religious tolerance.
The author distinguishes six different elements that went into the definition of religious freedom at the founding of the United States: 1) liberty of conscience; 2) free exercise of religion; 3) religious pluralism; 4) religious equality; 5) separation of church and state; and 6) disestablishment of religion. These six elements cannot be reduced to one or two of them, and none by itself is sufficient to guide government action in relation to the religions people practice.
The third distinctive thing about Witte's book is his demonstration of how religious liberty was understood differently at the time of the American founding by Puritans, Evangelicals, Enlightenment enthusiasts, and Civic Republicans. Four different views shaped and supported the First Amendment's religion clauses, but the four did not join in a single movement or body. The endurance of our First Amendment testifies to the breadth of its accommodation of these differing viewpoints. At the same time, the Supreme Court's struggle over religion-clause interpretation testifies to the differences that still contend with one another in the United States today.
The fourth thing that makes Witte's book unique is his extensive attention to the way the States dealt with religious freedom before 1947. The First Amendment was designed, after all, to limit the federal Congress, not to tell the States what to do. The Constitution's Bill of Rights did not challenge the existence of established churches in the States. Until 1947, almost all religion law was State law. In 1947, the U.S. Supreme Court began to hand down rulings that trumped many State laws and rulings.
The fifth unique feature of Religion and the American Constitutional Experiment is its attention to several important international human rights conventions that contain articles on religious freedom. These documents often deal more comprehensively with the six principles Witte outlines at the beginning, and he urges the Supreme Court Justices and others to pay more attention to them in revising the now outdated and inconsistent interpretations that govern American thought and practice.
Finally, the book contains three valuable appendixes at the end. One lists all the different drafts of the religion clauses that were tried between 1787 and 1789. Another contains all the State constitutional provisions touching religion. A third charts the U.S. Supreme Court's decisions on religious liberty from 1815 to 1997. Witte's notes and bibliography at the end are probably the most extensive on this subject that one can find.
Although Witte does not offer his own comprehensive reinterpretation of the First Amendment's religion clauses, he does, in Chapter Nine, give an extensive exposition of "tax exemption of religious property." A few of his comments in the "Concluding Reflections" hint at where he would go with other matters. For example: "the balance that the Supreme Court has often struck between the freedom of all private religions and the establishment of one public secular religion . . . can no longer serve." And with respect to government's dealings with publicly engaged religious organizations, Witte says: "when a general government scheme provides public religious groups and activities with the same benefits afforded to all other eligible recipients, disestablishment clause objections are not only 'crabbed' but corrosive."
Calvin on Freedom
William Stevenson's Sovereign Grace is a book that helps explain why John Calvin cannot be forced into the box of either a medieval oppressor or a modern liberal. The reinterpretation of John Calvin has been picking up steam in recent years, and Stevenson, a political science professor at Calvin College, takes on two of those reinterpretations: Ralph Hancock's Calvin and the Foundations of Modern Politics, and Harro Hopfl's The Christian Policy of John Calvin. Stevenson's book is a thorough study of the meaning of "freedom" in Calvin's political thought. To understand Calvin properly, it is a mistake to ask the Enlightenment's question of whether he was holding onto the medieval world or anticipating the modern age of freedom. Calvin's understanding of life has to be understood from within the Christian story, and in that regard he was an advocate of Christian freedom under God—in humility before God, mindful of God's sovereign grace and ultimate judgment, cautious because of human frailty and sinfulness.
Calvin's interpretation of human freedom is threefold: individual, corporate, and culturally or historically dynamic. Individual conscience is irreducible because each person has been created in the image of God and is accountable to God. Consequently, freedom of conscience does not mean autonomy and self-sufficiency of persons, for the very ground of freedom is one's relation to God. Secondly, persons are bound together in communities and institutions which themselves bear responsibility to obey God. Thus freedom cannot mean individualism. Finally, persons and institutions ought always to act in ways that respect God's past providence (and thus not be revolutionary) as well as heed God's call for repentance and reform (which means not treating tradition or the existing order of things as fixed and sacrosanct).
In sum, human beings do not first of all need to be freed from subservience to priests and the nobility, but from their sin. Freedom from sin means being freed to serve God through Christ. Calvin's opposition to much of medieval Christendom was an opposition to corrupt, unbiblical, unyielding church practices, not a call for liberation from authority. As Stevenson summarizes it, "Freedom arises from God's sovereign choice, out of his forgiving temper, for thankful service, under his discerning eye, and through his parental foresight. Once God sets believers free from their own self-enslavement, he announces to them their new status and then nourishes and sustains their freedom as they move about in the world."
In keeping with Calvin's third emphasis on historical creativity, subsequent generations of Christians should, indeed, have found new and better ways to relate church and state to one another and to continue the quest for just polities. Calvin's Geneva, even on Calvin's terms, should not have been frozen as a model for all time. American Puritans, in their day, had not yet resolved the tensions inherent in the idea that political citizenship depended on church membership. Those tensions should have been resolved, as they were, by disconnecting the two memberships. Nevertheless, the further development of human freedom under God in all areas of life requires a different conception of human freedom than the one that has dominated the West since the time of the Enlightenment. Stevenson's book reminds us of a comprehensive viewpoint that is no longer understood or even remembered by most Christians today. Together with Witte's volume, it can open new vistas to those trying to understand how to shape just constitutional law and public policies.