Readings:

The Catholic worshiper is not to think, but to believe and obey; . . . the voter is not to inquire and examine, but to deposit his ballot as the ecclesiastical authority directs . . .. The Catholic clergy are on the side of slavery . . . They love slavery itself; it is an institution thoroughly congenial to them, consistent with the first principles of their Church.
        Theodore Parker, Rights of Man in America" (1854) as related in Nussbaum

If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience."
        James Madison, Memorial and Remonstrance Against Religious Assessments (1785)

In March I happened upon a review of two books in The Nation magazine. The two books provide a broad introduction to the history of religious freedom in the United States from the early colonial period up to the present day. "Founding Faith: Providence, Politics and the Birth of Religious Freedom in America" is by Steven Waldman, the founder of Belief Net. Waldman claims he is interjecting himself into the right - left custody battle over the Founding Fathers by presenting a nuanced examination of their beliefs in the context of the early American experience of religious conflict and freedom. Using both biographical and historical narrative he presents the back drop to the Declaration of Independence and the emergence of the religion clauses of the Bill Rights. His is a history of the American colonies emphasizing the place of religion in their social and political development and the impact of that history on the shaping of the Founding Fathers understanding of religious freedom. Waldman claims his book is written to get the two sides in the debate over religious freedom to better appreciate the actual history and that the claims of both are imprecise.

The second book, "Liberty of Conscience: In Defense of America's Tradition of Religious Equality", by Martha Nussbaum, a professor of Philosophy at the University of Chicago, is a some what more scholarly treatise, by which I mean it is a bit more ponderous read. It is an introduction to US jurisprudence surrounding the religion clause in the Bill of Rights as well as an explanation of the historical and philosophical underpinnings of that jurisprudence which brings us most of our guarantees of religious freedom in 21st century America. Nussbaum also claims that she is aiming at a middle ground to calm the rhetoric between right and left and demonstrate that a middle ground exists. Given the ferocious social conflict which is manifested in the political arena, the courts and on school boards around the nation this seems a very worthy cause.

The review that I read in the Nation was sharply critical of both books for being both simplistic about the driving forces behind the debate and unrealistic about the consequences of neutrality. The review sparked my curiosity sufficiently that I went out and bought both books. I also thought to find a review of these books from a conservative perspective to see how they were fairing from the other side. I did find a review of Martha Nussbaum's book on the web pages of the New York Sun, where one can always turn for an ultraconservative worldview to balance the Nation magazine. This review was written by Father Richard Neuhaus, a Catholic intellectual and priest, who is a regular contributor to The Sun.

I quote from his review, "There is a school of constitutional law that holds that the entire fuss over the Religion Clause is misbegotten. The Founders intended nothing more, in this view, than to assure the states that the federal government would not interfere with the several state establishments of religion that existed at the time. The last state establishment was dismantled in 1833, so that's that, and the Religion Clause is no more than a historical artifact." He goes on to say some of Nussbaum's most central arguments are "not to put a fine point on it, risible" (that is, laughable). He does say that "liberty of Conscience "provides useful insight into a way of thinking . . . that is profoundly uncomfortable with a society composed mainly of Christians and unmistakably formed by a Judeo-Christian moral tradition; and finally "For all its merits, Liberty of Conscience is a partisan tract employing a potted history . . . in support of a fanciful theory of the first freedom of the First Amendment . . .." Well how `bout them apples? So much for bringing peace to the left-right divide over freedom of religion.

From my perspective, both authors clearly support the slow expansion of religious freedom over the past 200 plus years since the revolution while describing a history of American intolerance that left me wondering how my American history classes in high school and college could have been so deficient in this critical area. Both books brought me a very different understanding of the role of the first and fourteenth amendments in freedom of religion.

"Founding Faith", while discussing Franklin, Washington, Jefferson, Madison and John Adams, tries to develop the notion that the founding faith of the United States was neither Christianity nor secularism but rather religious liberty. This is a very interesting turn of phrase that attempts some neutrality but seems to satisfy neither side. Waldman demonstrates that the American experience with religion from the beginning of the English colonies in 1607 was so horrendous as to make religious liberty an obvious choice. He further argues that the founding fathers understood that religious liberty was and is a revolutionary formula for promoting faith by leaving it alone. He makes a very convincing case that men like James Madison, the principal framer of the Bill of Rights, and Thomas Jefferson believed that the free market place of ideas provided the best testing grounds for human beliefs and that in an open competition Christian civilization would more than hold its own. While we might quibble that in the US context Christianity has had little competition, it is certainly true that the American religious landscape today is remarkably diverse, demonstrating that religious freedom can indeed engender a highly creative religious environment. The Founding Fathers may or may not have found themselves comfortable is our greatly changed world.

Martha Nussbaum's book is a much more academic tour of the development of the religious and philosophical development of key players in the early colonies leading up to the Religion clauses in the Bill of Rights. Her central characters are William Rogers, the founder of Rhode Island, and James Madison, the author of the Bill of Rights. She devotes considerable space to explaining the emergence of the concept of Freedom of Conscience and the compromises that led to the religion clauses.

A good piece of the book centers on the development of the legal notion of religious accommodation in modern jurisprudence with a thorough introduction to the various interpretations of original intent. She makes the point that original intent is a very difficult thing to fathom when dealing with an essentially political document like the Bill of Rights, which was written and rewritten in an attempt to achieve first of all compromise in, and then passage through, Congress and then ratification by the States. It is her contention that we have developed a national "tradition" of freedom of conscience in spite of numerous egregious lapses over the two centuries plus since the nation's founding. To my surprise, she claims and defends through examples, that in our modern protection of separation of church and state, the courts have at times been overly zealous in rejecting often reasonable compromises which result in discrimination against religious people by secularist values. She goes on to assert that "nobody really believes in separation taken across the board. The modern state is ubiquitous in people's lives, and if we really separate church from state all the way, it would lead to a situation of profound unfairness" because this would deny religious institutions the support that everybody else receives.

Given the deeply divergent worldview of people on the left and right on this issue, I believe that peace is not possible and I don't think the authors of these two books really thought to accomplish that but rather to find some common ground for discussion. Such discussion is useful in subduing passions but these battles will be decided by the middle and not the extremes and the middle does needs to keep its cool. The education of people in the middle is the purpose of these authors and, given the tone of the books, I believe their intent is to further the cause of religious freedom.

Actually in his review Father Neuhaus accuses Martha Nussbaum of unreasonable paranoia. He states that religious freedom is cherished by the Right as well as the Left. Clearly he does not believe that resetting the Supreme Court clock by sixty years threatens religious freedom. The Bill of Rights was created in the context of a Christian ethos and that Christian ethos today will sustain that respect for individual conscience. Father Neuhaus is obviously correct in the assertion that a Christian majority created the Bill of Rights and that it has been a Christian majority that ultimately has permitted, fostered and enjoyed that expansion. Both of these books present a cautionary tale which has absolutely nothing to do with Christianity and much more to do with fundamentalism, which has been making inroads into all of the worlds great religions bringing social turmoil to Africa, Turkey, the middle east, India, Afghanistan and Pakistan.

As the religious right claims, America was indeed not only a Christian nation from its founding but a homogeneous Protestant Christian nation really up until the Civil War. "Founding Faith" recites chapter and verse how the various protestant sects managed to be in pretty nasty warfare with each other until the Revolution taught them that they had a common stake in religious freedom at least for Protestants, and as long as the Catholics and Jew were tiny minorities, they too could be tolerated. Martha Nussbaum argues it was the break down of that homogeneity with the post civil war immigration of Catholics, Eastern Orthodox, and Jews from Eastern and Southern Europe joining with home grown Mormons and Seventh Day Adventists that broke that homogeneity and lead to the need for a better understanding of the meaning of the religion clauses. It is her belief that as the United States becomes increasingly religiously heterogeneous over the coming century our appreciation of religious freedom will increase rather than lead to more conflict. Her expressed fear is that sincerely motivated conservative religious minorities will be run over by an ever-growing uncaring secular majority.

From my own perspective this philosophical discussion has caused some personal introspection. How do I stay within the appropriate bounds of my commitment to "a respect for the inherent worth and dignity of all human beings" when I believe that the far right religious agenda presents a clear and present danger to both religious liberty and scientific rationality? There is no doubt that I appreciate the depth of a Father Neuhaus's intellect and I believe his sincerity when he claims that Christian tolerance created religious freedom and it will sustain it. In fact he believes that without Christian civilization we will lose that tolerance and that freedom. He believes that in some sense that the United States is a Christian nation and as a Catholic, in spite of our history, he is willing to join other conservative Christians in restoring God to a rightful place in our culture.

Martha Nussbaum claims that religious and secular liberals are often condescending in their treatment of religious conservatives. I actually found Father Neuhaus's review rather condescending towards a respected philosopher who happens to be both a woman and a full professor of philosophy at the University of Chicago. There is no question in my mind that the market place of free ideas as our founding fathers believed should be open to an honest, continuing and fairly engaged discussion of religion.

I think that "Founding Faith" and "Liberty of Conscience" have some very important lessons that we ignore at our peril. It has only been a little over 220 years since the American Revolution and slightly less than that since the creation of the Bill of Rights. That is a very short time in the history of human civilization. Our actual history of religious freedom has been terribly mixed and we should understand what it truly has been rather than a fantasized version that many of us carry around in our heads from our high school education. I would really like to take another hour this morning and tell you all the things I learned in reading these two books which I did not know. I am sure you will be grateful that I will only dwell on two that I think make my point here about caution in trusting only to Christian civilization for protecting your freedom as the Supreme Court attempts to return us to a time in the early 20th century. I would particularly like to remind Father Neuhaus about the great Maryland experiment in religious liberty.

Maryland was established as a Royal Colony in 1632 by a land grant from Charles I and was intended as a refuge for English Catholics. The Act Concerning Religion of 1649 created at the behest of Lord Baltimore was to allow tolerance for all except blasphemers and Jews. While it professed good will and safety to all Christians it prescribed capital punishment for anyone who blasphemed God, denied or criticized the divinity of Christ, or criticized any component of the Trinity. These people had a very different ethos than our own, but in the context of it time this was a revolutionary document. Very soon after this act became the law of the colony a large number of Puritans fled from Anglican oppression in Virginia to religious freedom in Maryland. It wasn't very long before these Protestants allied themselves against the Catholics. By 1681 the Catholics were outnumbered thirty to one by the Protestants who soon established the Anglican Church to the consternation of the Puritans, and by 1700 Catholics could no longer inherit or purchase land and by 1704 Catholic worship was prohibited by law. In 1718 Catholics were denied the vote unless they swore allegiance to the Church of England. So much for religious tolerance!

Now while I learned this from "Founding Faith", in truth the book presents a very compelling tale of how some Americans learned tolerance and very often came to it through being treated badly themselves. Rather than a litany of bad behavior the book is a discussion of a developing enlightenment leading up to the Revolution and through to the constitution. It was the proliferation of religiously disenfranchised minority Christian sects such as the Catholics, Baptists and Quakers that allowed for an enlightened self-interested coalition to form supporting varying degrees of religious tolerance in the colonies. These battles were arduous and people like Benjamin Franklin, George Washington, Thomas Jefferson, John Adams, James Madison and others cut their political teach in these battles.

With your tolerance I will make one more point which should whet your appetite. Although the Bill of Rights with its first amendment provision for no establishment of religion and the free exercise of religion was promulgated in 1789 it had almost no legal standing as a protection of religious liberty until after the Civil War with the writing of the 14th amendment which made it the supreme law of the land. The so-called incorporation of the free exercise clause and the establishment clauses into American jurisprudence was not until 1940 and 1963 respectively. So your right to religious freedom is in fact is only about 70 years old. The vast majority of rulings on religious freedom occurred, to my surprise, in the 20th century. Our religious liberties are surprisingly recent and based on Court precedent in interpreting the constitution. Today the court contains four justices who have openly expressed their hostility to this precedence. I encourage open decent respectful dialogue on these issues which is consistent with our religious principals. Our culture is indeed becoming more diverse so in fact I am actually hopeful over the long run.

I believe both of these books have given me a very different perspective on the basis and evolution of religious freedom in our nation. It has also helped me to better understand the discomfiture of the religious right and its drive to recapture a world that in many ways has disappeared in their perspective in little more than a human life time. My personal sympathy does not extend to agreeing with them that the march of freedom should be rolled back. There is no doubt in my mind that although these books offer a basis for enlightened debate they will not bring peace to this arena of disagreement because the disagreement is not really based on different historical information but rather on fundamentally different world views. While we would all prefer to have polite engagement about our differences, and perhaps that is possible, the price of freedom is knowledge and constant vigilance.

References:

Martha C. Nusbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality, Basic Books, 2008

Steven Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America, Random House, 2008

Jeff Sharlet, "Beyond Belief", The Nation, May 22, 2008

Richard Neuhaus, "Freedom for Religion", The New York Sun, February 27, 2008

[Delivered 24 August 2008. David Simons is a member of the Unitarian Universalist Fellowship of Stanislaus County. He earned his Ph.D. in physics from the University of Maryland in 1974. His doctoral thesis concerned the energization mechanisms of electrons in the Aurora Borealis. He led the atmospheric sciences group at Los Alamos National Laboratory in the 1980's, working on a diverse set of physics and chemistry problems related to nuclear explosions, radio propagation, radiations transport, lightning physics, near earth space plasma dynamics and complex terrain atmospheric circulation. He has worked at the Lawrence Livermore National Laboratory since 2001.]