History and Import of Religious Liberty: Summary and Conclusion (This One Is Kinda Short, Guys) Part Three of Three

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In parts one and two (to summarize), I argued that until the last few hundred years, it was not practically possible, nor was it considered desirable, for any state or any people to refuse to establish a religion. Individual religious liberty has occasionally been tolerated, but it has always existed alongside an official religion. For the vast majority (roughly 99.85%) of human history, during most of which we lived as tribes, each people has considered it necessary to enjoy the “thick” belonging that comes from common beliefs, common rituals, and a common sense of the sacred, divine, or ultimate. During Christianity’s dominance in the West, it was believed with virtually unanimity that the unity of the church and the preservation of true doctrine were both vastly more important than individual freedom. The Reformation was (among other things) a fight over which doctrine was true, and though it paved the way for individual liberty, it did so accidentally. The American Founders initiated a radical new experiment with the Establishment and Free Exercise clauses. This radical new experiment aimed at two main goals: (1) prevent sectarian warfare and division, and (2) respect and encourage conscientious duty—the sense of being “called” by something higher than oneself to walk a certain path. The value of individual self-expression, merely as such, was given no weight at all as far as I can tell, and indeed was viewed with deep and deserved suspicion.

The outcome of this radical new experiment remains uncertain. As our history has progressed, we have had a thinner and thinner Peoplehood: we have less to belong about. At its inception, our nation was heterogenous enough to demand religious liberty, but homogenous enough to unify and feel itself a People: it was composed of various brands of Christianity (with some Judaism mixed in) and various brands of European-ness (with some African-ness mixed in), and most people agreed with each other in most of their value judgments. Everybody knew that George Washington was a great man and they knew why, and there was no controversy over the issue. The great controversies concerned the proper balance of power between federal and state governments and the institution of slavery. But there was substantial agreement about the standards by which these questions were to be resolved—the ultimate values to which one must appeal in seeking to persuade others.

Today, by contrast, we are a vastly more various in our religious persuasions (or lack thereof), more mixed in our cultural backgrounds, and more divided in our value systems. This heterogeneity is, of course, a mixed bag of blessings and curses. But given its growth, to preserve the unity and belonging of the People and to foster individual well-being, it would seem necessary to encourage “thick” belonging in the local associations that are embedded within the society: if we cannot thickly belong as a whole, let us thickly belong to parts that belong to the whole. It would also seem necessary to emphasize and preserve the beliefs and values about which we can (or must) all agree—to celebrate them and maximize their power to inculcate civic belonging.

One belief about which we can and must agree is the goodness and duty of patriotism. But the Supreme Court in Barnette took its cue from the individualistic trend that was even then too strong, and considered the pledge of allegiance—the ritual by which we most clearly enacted our Peoplehood—only as a mode of self-expression. As such, under the free speech clause, the pledge could not be required by government as a condition of attending public schools, and it did not matter why one would wish to refuse—whether out of conscientious duty or mere whim. The case in which flag-burning was found to be constitutionally protected followed as a logical successor of Barnette.[1]

These constitutional and social trends have continued. In First Amendment law, the value of self-expression has been crowned king (by Barnette and a host of other cases). This has resulted in an upside-down constitutional world in which pornography, unless it is deemed legally obscene (which it astonishingly almost never is), has been accorded greater constitutional protection from neutral laws than religious observance.[2] Self-hood, self-identity, and self-expression are venerated and almost worshiped by the “Me Generation” (of which I consider myself an early member). But really, we have only advanced somewhat further in the direction our parents marked out for us.

The trend towards individualism parallels the “thinning” of belonging at all levels of society—national, state, local, and familial. Voting turnout is down (though I am hopeful that this November will see higher-than-usual turnout).[3] Divorce levels are high.[4] The image of “bowling alone” captures the nature of the shift: we bowl (as we do so many other things in today’s technology-infused culture) in isolation or in closed, private parties.[5] This type of isolated party has largely replaced bowling leagues that were open to the community and which thereby fostered civic belonging. More concerning than bowling alone, though, is worshiping (or not) alone. The decline in organized religion and the rise in the “spiritual but not religious” camp means that the “comprehensive doctrine” of individuals too often fails to benefit from the discipline and mutual enforcement provided by “thick” communities.[6] Absent actual doctrines and standards and communal practices, it’s so easy to vaguely believe in vague platitudes, with no actual consequences and no power to challenge the fantasies and pettiness of the ego.

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I love this image, which illustrates the point: it seems to be an old cathedral (meeting place for the thickening of a community in shared belief)  transformed into a prison block. In each cell, individuals get their own experience, their own space for expression. No one bothers anyone else–but with such great loss of beauty, community and shared hope and faith.

Without such associations, civic belonging is slowly disintegrating. As one New York Times op-ed contributor put it, “[W]e seem to be experiencing a wave of liberal-minded detach-ees, a generation in which institutions are subordinate to the individual . . . .”[7] This is concerning partly because, of course, the nation is itself an institution. The whole ask-not-what-your-country-can-do-for-you-ask-what-you-can-do-for-your-country thing would seem to be outdated if institutions really are currently subordinated to the individual.[8] Thus far, there are signs only of strain on the nation and its life, not of dissolution. But it is unclear whether these trends of individualism are sustainable, consistent with the nation’s survival. What if the nation faced a crisis on par with World War II, requiring an equivalent degree of sacrifice and solidarity—would the People still be equal to it today? If current trends continue, will the People be equal to it in fifty or a hundred years? Or is the body politic slowly converting into a discordant mass of “summer soldier[s]” and “sunshine patriot[s]”?[9] If so, what, if anything, justifies the hope that we will remain a People at all? If the only hope is that we never will face another equivalent crisis, I’m afraid our time as a People may be short indeed. Peace on earth seems no closer today than it did on the eve of December 7, 1941—and although war does not seem quite so close, we seem far less prepared for it. “All things be ready if our minds be so”—but they are not—not half so ready as they were those 75 years ago.

Only time can tell, but there is certainly cause for concern. In the meantime, we remain a People, but with only a relatively thin and weak People-hood. The hostility to social forms as a discipline for the individual and the discounting of the value of uniformity evinced in Barnette have grown massively since that time, and the growth may be cancerous. The uniform of nonconformity has grown ubiquitous. (For nonconformity is a uniform. Just as we cannot choose between having a master or not, but only between this master or that, so also we cannot choose between having a livery or not, but only between this one or that.) Nonconformity as an ideal is inconsistent with law and order. Society thus depends on those institutions that help inculcate the type of free and conscientious conformity to external authority that is the common structure of religion, morality, and the social order.

To borrow from the Gettysburg Address, we might say that our nation was conceived in liberty and dedicated to the proposition that conscientious duty should be held sacred. Thus the Establishment Clause bars the state from promulgating an official orthodoxy in regards to “comprehensive doctrine,” though I have argued that some limited doctrinal tenets (such as the goodness and duty of patriotism) should be established. Now we are engaged—not in a great civil war—but in a great social experiment, “testing whether that nation, or any nation so conceived and so dedicated can long endure.” “A new birth of freedom” is needed—not an aimless freedom from constraint, but a purposeful freedom that is more akin to voluntary obedience. To enable the success of the experiment, our laws should recognize, as did the founders, the fundamental value of religion, broadly understood to include any given comprehensive doctrine that is conscientiously obeyed in community with others. The other side of that coin is that our laws should also recognize, as did the founders, the fundamental valuelessness of the individual will standing alone. As I have said before, rather than “freeing” the individual for maximal “self-expression,” we ought to foster the forging of “the bonds that make us free.”[10] We were meant for so much more than atomistic liberty.

[1] Texas v. Johnson 491 U.S. 397 (1989) (holding that flag burning is protected).

[2] Cf. Employment Div. v. Smith, 494 U.S. 872 (1990) (holding that the First Amendment does not mandate religious exemptions from neutral and generally applicable laws) and U.S. v. O’Brien 391 U.S. 367 (1968) (articulating the current test—intermediate scrutiny—for whether “expressive activity” must be accorded an exemption from neutral and generally applicable laws under the First Amendment).

[3] Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 37 (1999).

[4] Id. at 277 (“The downturn in civic engagement coincided with the breakdown of the traditional family unit—mom, dad, and kids. . . . [which is indicated partly by] the century-long increase in divorce rates . . . .”).

[5] Id. at 112 (“Between 1980 and 1993 the total number of bowlers in America increased by 10 percent, while league bowling decreased by more than 40 percent.”).

[6] See id. at 73-74 (“Privatized religion may be morally compelling and psychically fulfilling, but it embodies less social capital.”).

[7] Charles M. Blow, Op-Ed., The Self(ie) Generation, N.Y. Times, Mar. 7, 2014, http://www.nytimes.com/2014/03/08/opinion/blow-the-self-ie-generation.html?_r=2.

[8] John F. Kennedy, Inaugural Address, Jan. 20, 1961.

[9] Thomas Paine, The American Crisis (1776).

[10] T. Warner, The Bonds that Make Us Free, at 37.

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