The Rise and Decline of American Religious Freedom

Steven D. Smith

• Publisher: Harvard University Press
• Year: 2014
• Print ISBN: 9780674724754
• eBook ISBN: 9780674730960
• Topic: Law
• Subtopic: North American History
• Index: Law

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 D. 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.

1

American Religious Freedom as Christian-Pagan Retrieval

Instead of dividing up time into BC and AD (or BCE and CE), in thinking about religious freedom and perhaps even about religion itself, we might more aptly mark the years and centuries as BFA and AFA—before and after the First Amendment. Or so it may seem from standard accounts.

BFA, the domain of religion was a dark and turbulent one, perpetually troubled by persecution, oppression, strife, torture, and death. That statement simplifies, obviously, and selects. Christopher Hitchens notwithstanding,¹ religion wasn’t always and in all respects poisonous: surely it sometimes inspired acts of courage, charity, or mercy. Who would not admit as much? Even so, at least for our purposes, the aforementioned features—persecution, oppression, strife, torture, and death—were pretty much the salient ones.

Or so it may seem from standard accounts. Consider this official statement from Justice Hugo Black’s majority opinion in the seminal case of Everson v. Board of Education:

The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions.… With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious groups happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.²

Conspicuous in this presentation, of course, are Christians—Catholics and Protestants in their various “sects” and “shade[s]”—who were driven, it seems, by an insatiable urge to persecute. Justice Black went on to explain that it was against this pattern of persecution—of Catholic and Protestant persecution—that Americans (and in particular the Americans most prominently associated with the Enlightenment, i.e., Thomas Jefferson and James Madison) eventually rebelled, thereby putting the new nation on a more sensible and peaceable path. This more irenic course was marked, as Everson and other modern decisions and descriptions explain, by two new, Enlightenment-inspired, distinctively American legal commitments: to separation of church and state and to freedom of conscience.

This depiction of American religious freedom as an Enlightened departure from a dark and dogmatic Christian past is common in writings about religious freedom. Often it provides a sort of backdrop, not so much asserted or argued for as taken more or less for granted, against which discussions of religion and religious freedom take place. That backdrop has been with us for a long time. Thus summary presentations like Justice Black’s reprise a theme that some thinkers of the “Age of Reason” (as Thomas Paine unhumbly christened his time)³ had developed in a more sustained and scholarly way, and had traced further back in history.

In this vein, the historian Edward Gibbon in his epic The Decline and Fall of the Roman Empire—the first volume was published in the same year as the Declaration of Independence (and as Adam Smith’s Wealth of Nations)—related how a narrow and dogmatic Christianity arose in, and subverted, a Roman world of religious paganism characterized by the genial acceptance of a profuse diversity of deities and faiths. Upon achieving ascendancy under the emperor Constantine, the new religion pushed aside pagan tolerance—the “mild spirit of antiquity”—and substituted for it “the intolerant zeal of the Christians.”⁴

A few years earlier, David Hume had sounded similar themes in more universal terms. Polytheism is intrinsically “sociable,” Hume argued. Conversely, monotheistic religions such as Judaism and Christianity are inherently dogmatic and intolerant: this censorious spirit inspires “the continued efforts of priests and bigots” as institutionalized in “the inquisition and persecutions of ROME and MADRID.” The inquisitors take “fatal vengeance” on “virtue, knowledge, love of liberty” and thereby “leave the society in the most shameful ignorance, corruption, and bondage.”⁵ In Voltaire the same motifs recurred; even more so in thinkers like Diderot and d’Holbach.⁶

More contemporary scholars often tell a similar story. For example, the distinguished Yale historian Ramsay MacMullen describes, with barely contained outrage even after all these many centuries, the brutal transition from the congenial, vibrant “spongy mass of tolerance and tradition” that was classical paganism to “the murderous intolerance of the now dominant religion” after Constantine came to power.⁷ Robin Lane Fox’s lengthy and scholarly Pagans and Christians⁸ is in a similar vein. Likewise Jonathan Kirsch’s more popular God against the Gods.⁹

In this version of history (and for its proponents this is not a “version of history” but simply the way things were), the repressive Christian rulers of an aging and embattled empire—Constantine and his successors—served as a segue into a Christendom whose salient features were inquisitions, crusades, the auto-da-fé, and, after the Protestant Reformation, the “wars of religion.” Only with the Enlightenment’s rejection of Christianity—or if not exactly of Christianity in its entirety, then at least of Christendom—did the American break with this dogma-dominated past become possible.

I have already indicated in the Prologue that this familiar narrative contains a measure of truth: how else could it enlist the support of so many eminent thinkers and historians? But the reality was considerably more complicated and, I am afraid, less conveniently composed of clearly marked good guys and bad guys. Unless the crucial complications are acknowledged, we will be burdened with a grossly distorted understanding of what the American achievement actually was. And we will badly underestimate the extent to which American religious freedom was not so much a repudiation of and departure from the Christian past as a retrieval and consolidation of that past.

Christianity among the Pagans

So although this is a book about religious freedom in America, to understand what happened in America, we need first to look backward and begin where the more elaborate accounts do—with the rise of Christianity in the Roman Empire. What follows does not purport to be anything like a history of church-state relations in the West from the Roman Empire to the American founding: I have neither the need nor the competence to offer any such history. But it is important to recall some of the major pertinent developments and events that preceded the American Republic, with its commitments to church-state separation and freedom of conscience.

In Rome’s republican period, which collapsed with Julius Caesar, and in the early empire, which began with Augustus, a polytheistic paganism saturated Roman life. Indeed, Romans prided themselves on being the most religious people in the world, and they sometimes attributed their military and political success to this overarching piety.¹⁰ As the empire came to replace the republic, Augustus and his successors actively reaffirmed worship of the traditional gods, restoring old temples and erecting new ones. They also supplemented that worship with the practice of deifying the emperors themselves.¹¹

Roman paganism could be conducive, as Gibbon and Hume and company have told us, to an inclusive tolerance and freedom, for more than one reason.¹² For one thing, polytheism by its nature gives people choices in religion. If you find it hard to feel much reverence for Jove (a pompous and philandering fellow, by all accounts), you can pay your devotions to the sprightly Diana instead, or to the serene and comely Venus, or to the magisterial Apollo, or.… And of course there were the exalted emperors. As deities proliferated with an infusion into the empire of Eastern cults and sects devoted to Mithra, Isis, Serapis, et al., devotees were offered a prodigious pantheon of divinities and rites from which to choose. Gibbon waxed rhapsodic on the subject: “The deities of a thousand groves and a thousand streams possessed, in peace, their local and respective influence; nor could the Roman who deprecated the wrath of the Tiber, deride the Egyptian who presented his offering to the beneficent genius of the Nile.”¹³

A vast variety of eligible deities meant options for the devotees. “One would only worship the gods one wished to,” the French historian Paul Veyne observes, “and when one wished to.”¹⁴ Jonathan Kirsch concurs: “[T]he fundamental theology of polytheism honors the worshiper’s freedom to choose among the many gods and goddesses who are believed to exist.”¹⁵

In one respect, to be sure, the appearance of a capacious menu of divinities may be deceptive: that is because the various deities could be regarded as essentially just different faces of the same cozy company of gods. Charles Freeman explains that “local gods would be merged into the Roman pantheon—a provincial god of thunder could simply be seen as Zeus or Jupiter in a different guise.”¹⁶ The possibility of consolidating deities, however, was still conducive to tolerance. If all the various divinities are just different personifications of the same contained set of familiar gods, or possibly even of a single ultimate One or divine reality, then there seems little reason to quarrel, or perhaps to care, if your neighbor appears to be worshipping a different deity than you do. It all comes down to much the same thing. Gibbon thus explained that ”[t]he Greek, the Roman, and the Barbarian, as they met before their respective altars, easily persuaded themselves, that under various names, and with various ceremonies, they adored the same deities.”¹⁷

Religious tolerance in the Roman Empire was also a natural by-product of the Romans’ pragmatic, hands-off attitude toward governance of conquered lands. Given Rome’s remarkably rapid expansion in the later centuries of the republic and the lack of a well-developed governmental bureaucracy or police force, the Romans preferred to rule acquired territories indirectly, often maintaining the preexisting governments in a now-subordinate condition.¹⁸ Just as Rome could enter into a range of political arrangements with conquered peoples, it could cheerfully put up with a spectrum of devotions—especially if those devotions conduced to good civic behavior. Gibbon captured the idea, perhaps a bit too cynically: “The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”¹⁹

This sort of pragmatic tolerance—the point is crucial—was essentially a tolerance of indifference. It did not reflect what modern theorists might call a “principled” commitment to religious toleration, freedom of conscience, human rights, or human dignity. Religions were left free to flourish because, and to the extent that, they were not perceived as disruptive of the Roman order or ethos. J. A. North explains:

[I]f there was tolerance it was not tolerance born of principle. So far as we know, there was no fixed belief that a state or individual ought to tolerate different forms of religion; that is the idea of far later periods of history. The truth seems to be that the Romans tolerated what seemed to them harmless and drew the line whenever there seemed to be a threat of possible harm; only, they saw no great harm in many of the cults of their contemporary world.²⁰

Not always, though: sometimes the Romans did perceive possible harm in a religion, and then their reaction could be savage.²¹ Ruthless repression was thus the fate, from time to time, of Jews, Druids, Chaldeans, Manichees, and the devotees of Bacchus and Isis.²²

And, of course, of Christians. The Roman historian Tacitus described how, under the emperor Nero, Christians were “[d]ressed in wild animals’ skins” to be “torn to pieces by dogs” or “...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Epigraph
• Prologue: The Standard Story and the Revised Version
• 1. American Religious Freedom as Christian-Pagan Retrieval
• 2. The Accidental First Amendment
• 3. The Religion Question and the American Settlement
• 4. Dissolution and Denial
• 5. The Last Chapter?
• Epilogue: Whither (Religious) Freedom?
• Notes
• Acknowledgments
• Index