History and Import of Religious Liberty: A Tale of Two Opinions and the Further Thinning of Society, Part Two of Three

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The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. ‘We live by symbols.’ -Justice Frankfurter in Gobitis.

I began this series with a brief history of religious freedom, emphasizing the shift from “thick” to “thin” societies from prehistorical days through the founding of America. I concluded by asserting that the establishment clause was a radical new experiment: never before had a nation forsworn any religious ties. Nor was it certain whether a nation could survive in the long term without the kind of civic belonging and shared beliefs that a common religion fosters perhaps better than anything else. The experiment, while neither so radical nor so new as it was in 1789, is ongoing, and its success is not yet assured: for as we have less and less in common regarding our most fundamental beliefs and commitments, we seem to experience a shallower and shallower sense of civic belonging.

Conditions of the Experiment’s Success

Under what conditions is liberalism’s experiment most likely to succeed? How can plurality as to comprehensive doctrine be reconciled with a sufficient degree of unity to preserve the nation? First and foremost, as John Rawls suggests, a certain degree of “overlapping consensus” is necessary.[1] We may not agree on all things but we must agree on some things. A society united by nothing other than the accident of existing together under the same government—not by a general approbation of the form of government and its laws; not by common values and traditions; not by a commitment to seeking and pursuing a common vision of the good—is a society that is doomed to disintegrate, for it is incapable of inspiring loyalty and sacrifice, or even maintaining law and order. Society must be “thicker” than that even to survive. A set of procedures for lawmaking and adjudication is necessary but not sufficient to hold it together.

Second (and relatedly), it is essential that a sufficient majority of people feel it their duty to uphold the law and sustain the social order. As various political theorists (notably H. L. A. Hart) have noted, the government can never have sufficient power to compel the obedience (or punish the disobedience) of more than a small minority by force; law-abiding must be voluntary for a large majority of citizens.[2] This requirement entails that the comprehensive doctrine of most people be consistent with this felt duty—and suggests that a pluralist society will best flourish where the comprehensive doctrine of most people reinforce their civic duties. The aforementioned external authorities (law, religion, morality) will not, in a pluralist society, speak with one voice—but they must not pull the individual in opposite directions. This requirement also suggests that the government has some role to play in inculcating a sense of civic duty, and the more effectively it can fulfill that role, the more stable and safe will be society.

Third, a pluralist society will best thrive when the people, who, at the level of the society as a whole are deprived of the “thick” belonging within which humankind evolved, are nonetheless encouraged and facilitated in the formation of local, tribe-like associations. As noted before, these associations (families, work associations, churches, etc.) are a primary way in which individuals relate to contemporary societies. They are also the primary means for inculcating and practicing the submission of self to external authorities in the name of the greater good.

Associations that provide a “thick” belonging that is founded on a shared and demanding vision of the Good therefore deserve greater respect and accommodation than other associations. Religion is the ideal type of this sort of association—in contrast, for example, with the generality of college sororities or fraternities, which usually make few demands on the individual and, at their worst, serve mainly to enflame and gratify a given members’ passion, prejudice, and self-love.

The “thick” belonging epitomized in religious fellowship also seems to be a necessary condition for the wellbeing of individuals, so insofar as the pluralist experiment aims to promote wellbeing, its compatibility with this type of belonging is part of what is at issue in the experiment. Some contemporary perspectives see the individual as needing to be liberated from as much social constraint as possible, consistent with the liberty of others. From these perspectives, society need not necessarily aspire to be a coherent “People”; it may legitimately be conceived merely as a site for individuals to pursue self-directed self-realization. But this conception of society is delusional, and potentially disastrous. Individuals are always influenced by the desire to belong and by other social concerns (and are therefore never entirely self-directed). And even if they could be freed from the need for sociality (which they can’t), community is not merely a means to fulfilling the wants and needs of individuals, but is itself a primary good—or even, arguably, the primary good. David Hollenback quotes Aristotle on this point, rendering his own translation:

Even if the good is the same for the individual and the city, the good of the city clearly is the greater and more perfect thing to attain and to safeguard. The attainment of the good for one person alone is, to be sure, a source of satisfaction; yet to secure it for a nation and for cities is nobler and more divine.[3]

Aristotle famously conceived man as “a social creature”; accordingly, as Hollenback says, he conceived the good of the individual as tied up with the “the larger good realized in social relationships,” which are “superior to the good that can be achieved in the life of a single person considered apart from the community.”[4] But this is not just because each individual, considered apart from the community, is better off within society than without, but also because the communal life itself is worthwhile: “One of the key elements in the common good of a community or society, therefore, is the good of being a community or society at all.”[5] In other words, even without considering any of the secondary effects, there is something deeply and fundamentally good in the formation of a People out of individual persons.

Belonging Versus Atomism

Thick belonging and a common vision of the Good are necessary components of human flourishing, and their opposites (social and moral atomism) are among its greatest enemies. Indeed, it would be almost the worst of all possible worlds if each individual were to be guided by nothing more worthy of allegiance than his/her personal preferences and passions. I have written elsewhere (here and here, among other places) on how, in my estimation, contemporary society grossly and dangerously overvalues selfhood. I have argued that the self merely as a self is probably nothing more than a set of attunements to things external and a narrative capacity (the latter being the realm of creativity and freedom). I have concluded that it is not self-expression so much as self-transcendence (or, in other words, “faithfulness” to something external) that makes one praiseworthy.

The First Amendment

A. Intended to Promote Thick Belonging and Conscientious Duty

I would guess that any historian of the period would concede that the First Amendment—no establishment of a state church, free exercise of religion, freedom of speech and of the press—was originally all about two things: (1) protecting and encouraging what I have called “conscientious duty” and (2) preserving the nation’s peace. It is my conviction that this is not only the original interpretation, but also the best, and serves the nation better than the individualistic interpretation that is current. Both society as a whole and its individual members are best served when society encourages the formation of local associations that will inculcate restraint and morality, and provide a “thick” sort of belonging that is founded on a shared substantive vision of the Good.

The Establishment Clause, at a minimum, prohibits the federal government from defining that vision. As Justice Jackson famously put it, “If there is any fixed star in our constitutional constellation, it is that no official,  high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”[6] If he means that the government may not prescribe any opinions, I cannot entirely agree—of which more below—but if he means that it may not prescribe anything approaching a “comprehensive doctrine,” he is undoubtedly correct. But the Establishment Clause does not and should not be read to say that the government may not encourage people to choose what orthodoxy seems best to them (or else what heterodoxy) and be faithful to it until conscientious duty calls them another way. Fostering allegiance to truth and duty, as much as to the Union, is in the interests of the nation.

The associations and moral commitments to be encouraged need not be religious in the traditional sense. All they need be is sincerely believed and obeyed with conscientious duty—and preferably in community with others. Still, traditional religion has never been surpassed in its power to command the conscientious duty of communities of people. For example, Gandhi, Martin Luther King, Jr., and Desmond Tutu helped to lead and inspire some of the noblest revolutions witnessed by the 20th century largely through the force of their religious convictions and the use of their religious rhetoric.[7]

B. Current Individualistic Interpretation in the Post-Barnette World

When did the illegitimate shift from conscientious duty to self-definition/self-expression occur within First Amendment jurisprudence? Certainly not at any one moment—but if there were such a moment, it might well be the Barnette decision. In that case, Jehovah’s Witnesses challenged the constitutionality of state laws that required all students to engage in a civil meta-ritual—the pledge of allegiance—regardless of any religious or conscientious objection, as a condition of attending public school. The Supreme Court reversed Gobitis, a prior case that had upheld such laws, holding that the First Amendment barred the government from compelling the speech of citizens. The reversal of Gobitis in Barnette was a watershed moment for constitutional law, as Shawn Peters notes approvingly in a book subtitled “Religious Persecution and the Dawn of the Rights Revolution.”

Coming at a critical juncture in constitutional history—it has been aptly described as the ‘seedtime of a modern constitution’—the Witness cases [including Barnette] helped usher in an era in which the Supreme Court took unprecedented strides to protect civil and minority rights. Without the guidance provided by these early ‘turning points,’ the high Court might have followed a far different path in the second half of the twentieth century.[8]

If Barnette was a constitutional catastrophe, it was not because of its result, but its reasoning and the Constitutional values it espoused. Gobitis, the reversed case, admirably set forth the competing interests at issue.

A grave responsibility confronts this Court whenever in course of litigation it must reconcile the conflicting claims of liberty and authority. But when the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation’s fellowship, judicial conscience is put to its severest test.

. . .

Centuries of strife over the erection of particular dogmas as exclusive or all-comprehending faiths led to the inclusion of a guarantee for religious freedom in the Bill of Rights. The First Amendment, and the Fourteenth through its absorption of the First, sought to guard against repetition of those bitter religious struggles by prohibiting the establishment of a state religion and by securing to every sect the free exercise of its faith. So pervasive is the acceptance of this precious right that its scope is brought into question, as here, only when the conscience of individuals collides with the felt necessities of society.

Certainly the affirmative pursuit of one’s convictions about the ultimate mystery of the universe and man’s relation to it is placed beyond the reach of law.

. . .

But the manifold character of man’s relations may bring his conception of religious duty into conflict with the secular interests of his fellow-men.

. . .

We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.[9]

When such a conflict occurs, the Court in Gobitis held, the “necessities of society” must prevail over religious commitments: “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”[10]

This latter line seems to anticipate the holding of Employment Div. v. Smith,[11] but in fact the opinion as a whole is arguably more analogous to the strict scrutiny standard that Smith overturned: only the “felt necessities” of society justified the interference with religious duty. “Conscientious scruples” could justifiably be overridden only by a state interest that was “deemed by the legislature essential to secure and maintain that orderly, tranquil, and free society without which religious toleration itself is unattainable.” The main difference between the rule articulated in Gobitis and that applied in the pre-Smith cases is that the Court in Gobitis would defer to the legislature’s judgment as to what was “essential” to the welfare of society. The degree to which the judiciary defers to the legislature is, arguably, the degree to which minority interests receive little protection from majoritarian politics. Still, Gobitis affirmed in principle at least that nothing less than a compelling state interest could render the application of a law constitutional when it interfered with the free exercise of religion, even if the law were neutral and generally applicable.

To be sure, it did not much tax the reservoirs of judicial restraint for the Court to submit to the legislature’s judgment: the Court recognized that “[t]he ultimate foundation of a free society is the binding tie of cohesive sentiment”; that “[w]e live by symbols”; and that the flag is prominent among the symbols that “transmit [our traditions] from generation to generation.”

It is easy for us to say, with the benefit of hindsight, that in fact there was no compelling state interest in forcing Jehovah’s Witness students to recite the pledge, and that the religious scruples of the Jehovah’s Witnesses should have mandated their exemption from observing the pledge requirement under the Free Exercise Clause of the First Amendment. That, in my opinion, would have been the correct result. It is easy also for us to say, in our post-Civil Rights legal culture, that legislatures cannot be the sole judges of whether a compelling state interest exists when the constitutionally protected interests of minorities are at stake. But this was before the Civil Rights revolution, in the immediate wake of the Lochner era.[12] The Court was eager to exhibit its humility and redeem itself from the perceived overreaching of the Supreme Court during that era. And it was the middle of World War II, when the unity and patriotism of the nation seemed essential to its survival in the face of the military and ideological convulsions that were rocking the world. It was not even a close case: Justice Stone was the lone dissenter.

Nevertheless, three years later in Barnette, the Court reversed itself, partly in response to the widespread violence that broke out against Witnesses in the intervening years. One representative instance is especially worth relating. A reporter happened to witness a mob harassing seven Witnesses. [13] A sheriff “leaned against a telephone pole, watching the scene.”[14] Asked by the reporter what was going on, the sheriff replied, “Jehovah’s Witnesses. They’re running them out of here. They’re traitors—the Supreme Court says so. Ain’t you heard?”[15]

The Supreme Court, of course, had never said so—but it was eager to rectify the wrong of the persecuted minority, though equally eager not to appear to be adapting constitutional law to the exigencies of the moment. To this end, Justice Stone prevailed upon the author of the Barnette majority opinion, Justice Jackson, to remove several footnotes that referred to the vigilante violence against Jehovah’s Witnesses.[16]

The opinion, after introducing the facts and legal issue, begins with this assertion: “The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. . . . The sole conflict is between authority and rights of the individual.”[17] The first statement is true; the second is not. The individual rights asserted by the dissenting Witnesses did not collide with “rights asserted by any other individual.” But it is not true that “the sole conflict” was “between authority and rights of the individual.” Absent in the supposedly exhaustive list of the competing interests is any acknowledgment of the interest of the People in “People-ing,” if the term may be admitted—the interest of the People in imitating the formal unity of a body through this civic meta-ritual. (I will not call this collective interest a right—that would beg the question.) When the pledge is elective, it shifts away from being a ritual (a “prescribed behavior”) and towards being a mode of individualistic self-expression. The collective, unifying purpose of the action is denigrated.

To be sure, this result is required by the Constitution. The opinion is right about that. What is wrong with it is that, apparently without even the awareness that it is doing so, the opinion makes the national interest in “People-ing” through the meta-ritual of the pledge a constitutional nullity. It places individual interests in standing apart above the interests of both the individual and the collective in standing together precisely as a collective. By itself, this might be justifiable—indeed, the individual interest in standing apart when conscientious duty so demands must be held superior to the collective interest in standing together—that is the essence of the religion clauses. But absent a conscientious duty, reasonable minds may well disagree about which interest should prevail. What is not justifiable is the failure so much as to acknowledge the existence of the collective interest.

The opinion proceeds, referring to the Witness plaintiffs and students generally, “They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.”[18] The dichotomy between “being made acquainted” with the pledge and being compelled to engage in the pledge is a false one (they are not mutually exclusive), but it is also a telling one.

Why bring in the issue (tangential at best) of teaching about the meaning of the pledge? The suggestion seems to be that the Court is uncomfortable with schools’ role as active inculcator of social values like patriotism through ritual. The Court not only criticizes the compulsoriness of the pledge, but, by implication or strong suggestion, the ritualistic mode of inculcating patriotism. It does this by quite superfluously and even illogically posing as a favored “alternative” the dispensing of knowledge: nice, comfortable, individualistic knowledge—innocent of all ritualistic, communalistic mumbo jumbo. The Court further evidences this sensibility a few lines later, “Symbolism is a primitive but effective way of communicating ideas.”[19] Primitive but effective. Contrast that grudging admission with Frankfurter’s line in Gobitis (quoting Justice Holmes), “We live by symbols.”

A next step for the opinion is to draw attention to the potential mismatch between the meaning of the particular symbol at issue (the pledge) and the beliefs or attitudes of a given participant. In doing so, the opinion strategically misrepresents the meaning of the flag “as a symbol of adherence to government as presently organized.” The words of the pledge itself contradict this representation: the objects to which one pledges allegiance is not the “government as presently organized,” but “the flag” and “the republic for which it stands.” It is to the nation itself, not to its current administration or policies or organization, that we pledge allegiance. Nor does the pledge claim exclusivity or absoluteness for the allegiance to the nation. Arguably, at least, the pledge of allegiance does not even purport to bind those who engage in the pledge to anything more definite than love of country—and that is, I think, an uncontroversial good, albeit radically open to interpretation. One ought to love one’s country to the best of one’s ability, even if the practical expression of that love is dissenting from its policies, or even from the current republican form that its government takes.[20]

If the Court was set on getting to its desired result, it was no doubt well-advised to dodge the necessity of asserting that the state may not require any expression of allegiance, for the contrary is obviously the case. Treason is still a capital crime,[21] after all, and the state does and must both require obedience and impose a duty of loyalty. In all of these ways, it requires expressions of allegiance. The only valid argument to be made is that freedom of speech means that the People may require expressions of allegiance in seemingly all ways except through speech. The Court was well-advised then, but mistaken to define the object of allegiance as the government as presently organized.

But what is perhaps more important than the alleged object of allegiance is the reason that allegiance to government as presently organized is held impermissible. Part of the stated reason is that the compelled person may not really agree with government as presently organized: it would therefore not be an authentic act of self-expression: “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”[22]

A response would be that the point of the pledge is to magnify whatever of patriotic allegiance may be in the speaker’s mind by engaging him in a “People-ing” meta-ritual—the point is not only to express allegiance. And if there is no patriotic allegiance in the speaker’s mind initially, perhaps the pledge would help to plant the seeds of future patriotism. But if the speaker is positively hostile to the nation, does the nation really have an interest in recognizing and validating that position?

I would argue that the nation does not have such an interest, but that it does have an interest in inculcating patriotism as part of a non-comprehensive vision of the Good, to be filled out (hopefully) by the comprehensive doctrine of each particular religion or pseudo-religion. Patriotism is hardly an “orthodoxy.” But the opinion that patriotism is good and even requisite is one doctrinal point (perhaps among some few others) that I think the government must be allowed to establish. The government may concur with morality and common sense in positing as good the love of one’s country.

But more to the point, while public authorities may well be prohibited from compelling this particular speech under the correct interpretation of the First Amendment, whether they can or not does not turn on the content of the speaker’s mind. The question is eminently debatable (though if so, as I have said, conscientious objectors are constitutionally exempted). But if they cannot constitutionally compel this speech, then they may not compel a speaker who is full of the love of her county any more than a speaker who is utterly bereft of this noble emotion. The authenticity of the expression is therefore completely irrelevant.

It bears mention that the Witnesses who objected to the pledge did not do so based on an absence of allegiance to the nation: it was not that the content of their minds did not comport with the content of the pledge, but purely that the form of the expression did not comport (in their view) with the Old Testament prohibition against bowing down to graven images.[23] They were presumably loyal Americans and would quite probably have been willing to submit to some other compelled mode of expressing their allegiance, so long as it was not inconsistent with their perceived religious duty.

The famous line about the “right to speak his own mind” has no doubt contributed to the current constitutional malaise that makes the First Amendment (and American culture more generally) so focused on the self. One has a right to speak, generally, yes. One necessarily speaks some aspect of what is in one’s mind—that one does so tells us nothing more than that one has said something. What we should be focused on is not the right to speak one’s mind: any wild animal blessed with vocal chords has the same right in the same degree, and many employ it more delightfully than most humans. We should instead be focused on the moral duty to discipline the mind, to stock it with what is best, and to speak to the best effect we can—though, as with love of country, what this means in practice is an extremely open question.

Absent from the entire Barnette opinion, in stark contrast with Gobitis, is any notion that the First Amendment is about protecting the right to pursue the true and the good as a matter of conscientious duty. Indeed, the Court explicitly distances itself from the issue of religious duty: “Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held.”[24] Instead, the state’s inability to compel expression merely as expression is held dispositive—regardless of the content of the expression or the reasons for and against compulsion in each particular case. Since the state cannot legitimately impose any duty to express (or not to express) anything (including the thing at issue, allegiance), the question of exemptions, religious or otherwise, does not even arise.[25]

The Court assures its readers that “individual freedom of mind” is a “means of strength” for the nation, to be preferred over “officially disciplined uniformity.”[26] What a telling line! And here is another in the same spirit: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.” Both lines stress the freedom of the mind in contrast with “uniformity” and “routine,” and suggest that the free mind is rather expressed through “voluntary and spontaneous” action. The alleged contrast between freedom and routine, and between individuality and uniformity, are surely two more false dichotomies, and they have both insinuated themselves deeply into our culture today. The opinion’s exaltation of the voluntary and spontaneous scarily anticipates the worst excesses of Generation Me. Our tribal ancestors knew much better than we the uses of uniformity, routine, and ritual in fostering that “thick” belonging without which one’s spiritual and moral existence is irredeemably impoverished.


Continue to part 3

[1] Rawls at 144.

[2] H. L. A. Hart, The Concept of Law 92 (3rd ed., Clarendon 2012) (“[T]hough there are dissidents and malefactors, the majority live by the rules seen from the internal point of view.”) By “internal point of view,” Hart means a perspective that holds the rules to be binding. As he says elsewhere, quoting Austin, “a general habit of obedience” is a “necessary” feature of the rule of law. Id. at 23-24.

[3] David Hollenbach, The Common Good and Christian Ethics 3 (2002) (quoting Aristotle, Nicomachean Ethics, 1094b).

[4] Id. at 4.

[5] Id. at 9.

[6] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[7] See Hollenbach at 99.

[8] Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution 15-16 (2000).

[9] Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 591, 593, 595 (1940).

[10] Id. at 594.

[11] Employment Div. v. Smith, 494 U.S. 872 (1990) (holding that the government need not meet strict scrutiny in order to enforce neutral and generally applicable laws even where those laws impose a substantial burden on the free exercise of religion).

[12] Lochner v. New York, 198 U.S. 45 (1905) (overturning progressive and politically popular legislation under a politically unpopular theory of substantive due process that eventually had to be abandoned to allow the New Deal to take effect).

[13] Peters at 84.

[14] Id.

[15] Id.

[16] Id. at 251.

[17] W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 630-31 (1943).

[18] Id. at 631.

[19] Id. at 632.

[20] Arguably, at least, one does not love a horse the less for wanting to convert it into a Pegasus; and one does not feel less allegiance to the “Republic” for wanting to convert it into some form of government perceived to be better.

[21] 18 U.S.C. § 2381.

[22] Barnette, 319 U.S. 624, at 634.

[23] Peters at 26 (noting that the reason Witnesses did not feel at liberty to engage in the flag salute was the prohibition against graven images in Exodus 20).

[24] Id.

[25] Id.

[26] Id. at 637.

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