Book Review: Phillip E. Hammond, David W. Machacek, and Eric Michael Mazur, Religion on Trial: How Supreme Court Trends Threaten Freedom of Conscience in America (AltaMira 2004) 177 pp.

by Kenneth W. Krause.

Kenneth W. Krause is a contributing editor and “Science Watch” columnist for the Skeptical Inquirer.  Formerly a contributing editor and books columnist for the Humanist, Kenneth contributes regularly to Skeptic as well.  He may be contacted at krausekc@msn.com.

“The First Amendment,” scholars of religion Hammond, Machacek, and Mazur argue, “only reaffirmed what [James] Madison understood already to be the case, which was that the federal government was powerless over conscience . . ..”  The founders, they insist, conceived of “freedom of conscience” not simply as a restatement of religious liberty, but rather as a much more comprehensive franchise—“the freedom of the individual to decide for him- or herself questions of morality, truth, and beauty,” irrespective of the individual’s religious proclivities or lack thereof.  In broad terms, the authors rest their claim upon two distinct foundations, the first solid and enduring, the second flimsy and ephemeral.

History, they profess, clearly demonstrates the founders’ inclusive aspirations.  Madison understood that ratification of the Bill of Rights would not conclude America’s struggle to define freedom of conscience.  His fondest hope for the First Amendment, in fact, was that it “would set in motion a process of expanding liberty.”  Indeed, mounting freedoms would seem vital to the survival of any emerging republic, or, otherwise stated, crucial to political and philosophical commerce within any sincerely free marketplace of ideas.

But the Supreme Court, say the authors, quickly subverted whatever hopes the earliest generations of forward-thinking Americans may have entertained with respect to the founders’ original intent.  “[N]ineteenth-century jurists,” in fact, were the culprits “who laid the foundation for the argument that conscience necessarily meant religion (and that religion meant Christianity).”  In his 1833 Commentaries on the Constitution, for example, Justice Joseph Story wrote that the First Amendment was designed “not to countenance . . . infidelity, . . .” but rather “to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment . . ..”

Consistent with his Protestant faith, Story distinguished religious conduct from religious conviction, sacrificing the former to the discretion of state governments and awarding the latter to the exclusive prerogative of individuals.  More than the framers’ Enlightenment values, this non-preferential “Republican Protestantism” formed the basis of the Court’s initially stubborn reluctance to involve itself in religious issues.

As immigration fueled religious diversity, however, American Protestantism gradually and grudgingly ceded its privileged legal status.  By the end of the century, for example, local court decisions involving blasphemy prosecutions, Sunday closing laws, and church property disputes reflected decidedly less bias toward an exclusively Protestant worldview.  Somewhat ironically, as Catholics and Quakers threatened to take advantage of government funding, resentful Protestants began to clamor for the separation of church and state.

Even so, the authors point out, “it would take a revolution” on the Supreme Court “to bring about a fuller understanding of the individual rights of conscience . . . articulated by the Framers over one hundred years earlier.”  Such transformation commenced following Roosevelt’s reelection in 1936 and, given the prevailing force of Republican Protestantism, relied heavily upon certain religious organizations’ assertion of their rights to free speech and thought rather than religious liberty.  “[W]hen the organization based its arguments either on a combination of free speech and religious liberty rights, or on free speech alone, [it] was much more likely to triumph.”

The Jehovah’s Witnesses, of course, played a key role in this revolution, facilitating post-New Deal America’s penchant toward the conceptual affiliation between free speech, free thought, free conscience, and religious liberty.  By the end of the Warren and Burger eras, the Court had recognized that a tribunal’s regulation of minority religious behavior and its corresponding deference to majority actions could be seen as a patently unconstitutional “casting of judges as ‘theologians’ . . ..”  Forced to abandon Republican Protestantism’s belief-action distinction, the authors argue, the Court expanded the right to free exercise laterally to accommodate conscience or conviction, regardless of whether it was expressed in religious terms.

According to Justice Harry Blackmun, writing for the Court in 1989, “Perhaps in the early days of the Republic [the First Amendment was] understood to protect only the diversity within Christianity, but today [it is] recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the adherent of a non-Christian faith . . ..”  Implicit in Blackmun’s analysis, the authors maintain, was the Justice’s understanding that official endorsement also amounts to a violation of free exercise, “because [endorsement] communicates to non-Christians that their religions are not endorsed” and to dissenting Christians that their religion ought to be imagined and practiced in a particular way.

In the authors’ estimation, Blackmun’s expanded vision of what is protected under the Free Exercise Clause and proscribed under the Establishment Clause “represents the gradual unfolding of the true meaning and purpose of the First Amendment.”  Conversely, the approach of contemporary non-preferentialists, including the “regressive bloc” of the Supreme Court which, at the time of publication, consisted of Justices Rehnquist, Thomas, and Scalia, is marked by an ahistorical analysis and the rejection of the co-dependent nature of the First Amendment’s two religion clauses.

During recent years, of course, the “enlightened” trend has decelerated and, arguably, reversed itself.  Considering each Justice’s record of liberality with respect to free exercise and conservatism in relation to establishment, the authors conclude—not unpredictably—that William O. Douglass was the most and that Clarence Thomas has been the least progressive Supreme Court jurist in history.  Similarly, the Warren Court represented the apogee of enlightenment and the 2004 Rehnquist Court its nadir.

The Court is now inclined, say the authors, toward the abandonment of strict scrutiny in free-exercise cases and the abolishment of the Lemon test in establishment cases.  The trend, in other words, entails the continued and perhaps expanded constitutional validation of ostensibly “neutral” legislation on the one hand, and “devolution,” or the philosophical infatuation with local as opposed to federal power, on the other.  The 2004 Supreme Court, they conclude, “would gladly submit the rights to ‘life, liberty, and property’ to the popular vote—precisely what the Fifth and Fourteenth Amendments [were] designed to prevent.”

The authors’ historical argument, once again, is credible and well founded.  Clearly, the First Amendment’s primary authors anticipated both the expansion of religious liberty and a much more capacious separation of religion and government than was achievable in eighteenth-century America.  The authors’ second argument, however, that the necessity of free exercise and separation is and has always been based on every human’s “natural rights,” is seriously flawed.

Although the authors claim to conceive of natural rights in individualistic Lockeian rather than religious Thomistic terms, their conclusion is no less irrational for the distinction.  “The U.S. Constitution,” they contend, “is fundamentally a ‘sacred,’ not a ‘secular’ document.”  “Freedom of conscience,” they add, “does not derive from our particular system of government; it is, rather, an aspect of ‘personality.’”

Such sentiments, if accepted as true, might console Americans who, regardless of politics or ideology, either favor a more expansive interpretation of the Free Exercise Clause or favor greater separation of religion and government and wish to base their hopes in that respect upon the attendant claim that such separation is essential to generally expanded religious liberty.

But wanting a proposition to be true does not affect that proposition’s veracity, no matter how prevailing, passionate, or appreciable the desire.  So, while the authors are correct that “to be inviolate,” freedom of conscience must be held “free from the interference of the state,” both reason and history are clear that there exists no factual basis for the concept of natural rights and that freedom of conscience, in fact, can be violated by the government and, all too often, egregiously so.

Such is precisely the reason why our civil rights remain fragile, after all, and why every fresh generation of Americans must fight for their civil rights’ continued existence.  In a society built upon Enlightenment ideals, no claim is exempt from rational inquiry and, accordingly, no idea or opinion can ever be held sacred.  Absent a factual basis, the patronizing and pretentious concept of natural rights is “simply rhetorical nonsense,” as Jeremy Bentham once suggested—“nonsense upon stilts.”

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