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The Rise and Decline of American Religious Freedom
Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.
Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.
240 pages, Hardcover
First published February 18, 2014
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About the author
Steven D. Smith
38 books12 followersProfessor Steven D Smith is the Warren Distinguished Professor of Law at San Diego University, and is the Co-Executive Director for both the Institute of Law and Religion, and the Institute for Law and Philosophy. He teaches in the area of law and religion, including as visiting professor at the University of Michigan and the University of Virginia.
Areas of Expertise are Constitutional Interpretation, Torts, Jurisprudence and Legal Theory, Law and Religion, Religious Freedom/Separation of Church and State, Federal Courts, Constitutional Law.
www.sandiego.edu/law/about/directory/...
Areas of Expertise are Constitutional Interpretation, Torts, Jurisprudence and Legal Theory, Law and Religion, Religious Freedom/Separation of Church and State, Federal Courts, Constitutional Law.
www.sandiego.edu/law/about/directory/...
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Displaying 1 - 8 of 8 reviews
January 18, 2024
Smith helps me make sense of my world. What more can I ask of a writer? Perhaps more later, but for now the key argument here is that "the American settlement" long allowed secularist and "providentialist" viewpoints to jockey for supremacy without anointing one the permanent, overall winner. Apparent inconsistencies in Supreme Court judgments on religious freedom cases (think Hosanna-Tabor v. EEOC and Christian Legal Society v. Martinez) are something of a happy accident that maintains an ongoing, ugly-but-necessary compromise.
A lot of food for a lot of thought.
A lot of food for a lot of thought.
February 6, 2018
A difficult read – one that I had to slog through (several times for parts – if I’m being honest). In this book, Smith, argues that the standard narrative regarding American religious freedom is wrong. He argues that the first Amendment was nothing special – merely an affirmation of how things already functioned within the colonies – jurisdiction over religion lay solely with the states; not congress or the national government. Smith discusses the difference between a hard Constitution (focusing on Church State Separation and Freedom of Conscience) and a soft constitution, the actual practices, understandings and beliefs that constitute us as a nation (allowing for differences among neighborhoods, cities and states). Smith terms this idea of embracing what we all agree upon (freedom of religion) and maintaining nebulous what we don’t agree upon (what freedom of religion really entails) the American Settlement . He explains that the brilliance of the American Settlement is that it didn’t prefer a competing faith or orthodoxy, it didn’t embrace either secularism or providentialism, rather it maintained a constitutional agnosticism. Smith goes on to explain of the American Settlement has been upended and the danger of this to both the religious and the secularists. This wasn’t necessarily an enjoyable book but one that I am glad to have read – in that it has informed my views of a topic on the national mind.
February 14, 2014
Steven D. Smith, The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press, 2014). Hardback / Kindle
In America, religious freedom is often named “the first freedom.” One reason reason for this name is religious freedom’s pride of place in the First Amendment. Only after stating, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” does that amendment go on to prohibit congressional laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The order of the First Amendment points to a second, more important reason for the name, however: the primacy of conscience that religious freedom protects.
One would think that religious freedom would unite Americans of all persuasions, religious and political. Unfortunately, however, religious freedom itself has become a controversial topic within our increasingly secular and egalitarian political culture. Flashpoints are numerous, but certain clashes are especially prominent at the present moment: the rights of religious groups at public schools, the constitutionality of the so-called ministerial exception, the burden ObamaCare’s sterilization-contraception-abortifacient mandate places on religious business owners; and the increasingly tense battle between gay rights groups and religious believers on the topic of same-sex marriage.
Underlying these conflicts are two very different narratives regarding the meaning of American religious freedom, whose differences Steven D. Smith outlines in The Rise and Decline of American Religious Freedom.
The “standard story” traces the intellectual roots of religious freedom to the Enlightenment; interprets the First Amendment as a radical innovation in public affairs; contends that its meaning was imperfectly realized in the 19th century, when evangelical Protestant Christianity was America’s established religion de facto, though not de jure; and lauds Supreme Court decisions from the mid-20th century onward for their deconstruction of this de facto establishment and construction, in its place, of secularism and neutrality toward religion. A fifth element of this narrative, increasingly evident among legal elites, though not necessarily in the courts, is the belief that religious freedom is outmoded and therefore should be discarded because it is antithetical to the egalitarian outcomes government exists to secure. If, for example, religious freedom is simply the last refuge of homophobic bigots—as same-sex marriage proponents loudly complain—why should it be preserved?
In sharp contrast to the standard story, Smith proposes a “revised version,” a point-by-point refutation of the former, or at least a counter-narrative to it. This version traces the intellectual roots of religious freedom farther back than the Enlightenment—indeed, to predominantly Christian emphases on the freedom of the church and the liberty of conscience. Far from being a radical innovation, the First Amendment was a non-controversial, ho-hum affirmation of the American status quo, affirming jurisdictional limitations on the federal government’s involvement with religion, which left state governments free to establish or disestablish religions as they pleased. The resulting “American settlement” allowed for “open contestation” between advocates of “providentialism” and “secularism,” even as it enforced jurisdictional boundaries between the federal government and the nation’s churches. Among other things, this settlement allowed presidents to declare national days of prayer and thanksgiving, politicians to offer theological motives for laws with secular effects, and public schoolchildren to pray and hear the Bible read by the teacher in the classroom. Rather than maintain this settlement, the mid-20th-century Supreme Court ended the policy of open contestation and declared that government must be both secular and neutral with regard to religion. This secular neutrality is out of step with American legal and political traditions and is not neutral with regard to religion. Rather, it deprivileges religion in favor of secular accounts of reality. As noted above, some legal theorists want to dispense with religious freedom altogether, arguing that religious believers’ rights of speech, press, freedom of association, and redress of grievances would be more than adequately protected in its absence.
But Smith wonders whether this would actually be so, closing his book with these words:
In other words, should the first freedom fall, can the second, third, and fourth freedoms continue to withstand the encroachment of state power? That’s a good question, and Steven D. Smith should be thanked for raising it in his timely and illuminating study of American religious freedom’s rise and decline.
P.S. If you found my book review helpful, please vote “Yes” on my Amazon.com review page.
In America, religious freedom is often named “the first freedom.” One reason reason for this name is religious freedom’s pride of place in the First Amendment. Only after stating, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” does that amendment go on to prohibit congressional laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The order of the First Amendment points to a second, more important reason for the name, however: the primacy of conscience that religious freedom protects.
One would think that religious freedom would unite Americans of all persuasions, religious and political. Unfortunately, however, religious freedom itself has become a controversial topic within our increasingly secular and egalitarian political culture. Flashpoints are numerous, but certain clashes are especially prominent at the present moment: the rights of religious groups at public schools, the constitutionality of the so-called ministerial exception, the burden ObamaCare’s sterilization-contraception-abortifacient mandate places on religious business owners; and the increasingly tense battle between gay rights groups and religious believers on the topic of same-sex marriage.
Underlying these conflicts are two very different narratives regarding the meaning of American religious freedom, whose differences Steven D. Smith outlines in The Rise and Decline of American Religious Freedom.
The “standard story” traces the intellectual roots of religious freedom to the Enlightenment; interprets the First Amendment as a radical innovation in public affairs; contends that its meaning was imperfectly realized in the 19th century, when evangelical Protestant Christianity was America’s established religion de facto, though not de jure; and lauds Supreme Court decisions from the mid-20th century onward for their deconstruction of this de facto establishment and construction, in its place, of secularism and neutrality toward religion. A fifth element of this narrative, increasingly evident among legal elites, though not necessarily in the courts, is the belief that religious freedom is outmoded and therefore should be discarded because it is antithetical to the egalitarian outcomes government exists to secure. If, for example, religious freedom is simply the last refuge of homophobic bigots—as same-sex marriage proponents loudly complain—why should it be preserved?
In sharp contrast to the standard story, Smith proposes a “revised version,” a point-by-point refutation of the former, or at least a counter-narrative to it. This version traces the intellectual roots of religious freedom farther back than the Enlightenment—indeed, to predominantly Christian emphases on the freedom of the church and the liberty of conscience. Far from being a radical innovation, the First Amendment was a non-controversial, ho-hum affirmation of the American status quo, affirming jurisdictional limitations on the federal government’s involvement with religion, which left state governments free to establish or disestablish religions as they pleased. The resulting “American settlement” allowed for “open contestation” between advocates of “providentialism” and “secularism,” even as it enforced jurisdictional boundaries between the federal government and the nation’s churches. Among other things, this settlement allowed presidents to declare national days of prayer and thanksgiving, politicians to offer theological motives for laws with secular effects, and public schoolchildren to pray and hear the Bible read by the teacher in the classroom. Rather than maintain this settlement, the mid-20th-century Supreme Court ended the policy of open contestation and declared that government must be both secular and neutral with regard to religion. This secular neutrality is out of step with American legal and political traditions and is not neutral with regard to religion. Rather, it deprivileges religion in favor of secular accounts of reality. As noted above, some legal theorists want to dispense with religious freedom altogether, arguing that religious believers’ rights of speech, press, freedom of association, and redress of grievances would be more than adequately protected in its absence.
But Smith wonders whether this would actually be so, closing his book with these words:
In childlike fashion, perhaps, let us indulge the assumption that unlike so many rulers throughout history, our contemporary governors are true men (and women) and good, genuinely motivated by a desire to govern justly. Even so, we might recall Justice Louis Brandeis’s observation that “[e]xperience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
So it is just possible that the forgetting or forgoing of the logic of jurisdiction that animated the commitment to freedom of church and conscience, and thereby set and underscored bounds to the jurisdiction of the state, might turn out to be a loss sorely lamented…
In other words, should the first freedom fall, can the second, third, and fourth freedoms continue to withstand the encroachment of state power? That’s a good question, and Steven D. Smith should be thanked for raising it in his timely and illuminating study of American religious freedom’s rise and decline.
P.S. If you found my book review helpful, please vote “Yes” on my Amazon.com review page.
February 23, 2020
An important book. I enjoyed re-entering discussion about religious freedom, because my dissertation was on the admissibility of religious arguments in public discourse. Smith's narrative communicates the tumultuous history of religious freedom jurisprudence clearly, but without glossing its complexity. The most important observations he made, I think, are, first, how the progressive commitment to equality has escalated in the hierarchy of values, and second, that this commitment makes a religion-like claim not just on the behavior of citizens, but on their attitudes and beliefs. Thus, beliefs that do not accord with progressive understandings of equality stand to be opposed with the full force of the state. The equality police are thought police. As Ryszard Legutko wrote in The Demon In Democracy, this is a totalitarian temptation embedded in political liberalism that is the most salient threat to religious liberty. Recent Supreme Court jurisprudence, however, has been largely favorable to citizens of religious conviction, and even though religious liberties are more contested now, they seem to be holding up.
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June 15, 2015"Smith’s ending, though, is really his beginning. The prospects for a robust practice of religious liberty may be dim, but Western history affords remarkably dimmer conditions and circumstances for religious minorities, conditions that were then upended by unforeseen developments that made the last first. Religious freedom’s future in America, Smith plainly concludes, rests ultimately with those who combine the inheritance of the American practice of religious liberty with a theory that is worthy of its excellence."
Richard M. Reinsch II reviews: http://www.theamericanconservative.co...
Richard M. Reinsch II reviews: http://www.theamericanconservative.co...
May 17, 2014
This is one of the best books I've read on the history of religious liberty in America and the reasons why there is such conflict over religious liberty today. Smith has a new (to me, at least) interpretation to offer that I think is important and valuable. Concise, scholarly, and engrossing - I recommend it very highly.
November 21, 2016
A really excellent account of the complex legal and cultural history of religious liberty in the United States; a compelling explanation of the basis for current threats to religious freedom; and a compelling defense of the need for renewed respect for our 1st freedom.
June 7, 2016
Very solid, highly recommended for people interested in this subject.
Displaying 1 - 8 of 8 reviews