Debates over religious freedom in the United States are suddenly everywhere. Last week, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby, whose conservative Christian owners want to be able to refuse to cover certain kinds of contraception required by the Affordable Care Act. Legislators in Arizona passed a bill that would let businesses decline to do business with gays and lesbians on religious grounds, although the conservative governor vetoed the law. And in December, the ACLU prevailed in the latest twist in a long-running case when a federal district court ruled that a large cross at a veterans memorial in San Diego had to come down.
The assumption underpinning many of these cases is that America’s founders, mindful of religious persecution in Europe, put in place a uniquely high wall between religion and government in the First Amendment. Despite the contentiousness of issues like the contraception mandate, it’s widely thought that the modern Supreme Court has been attempting to hew to the founders’ Enlightenment views in ensuring the American public sphere is secular.
But what exactly did the founders intend? We’re all getting it wrong, argues Steven D. Smith, a law professor at the University of San Diego. In a new book, from Harvard University Press, entitled “The Rise and Decline of American Religious Freedom,” Smith takes aim at what he believes is a false story about the relationship between church and state in the United States.
In an argument that might affront secular liberals, Smith argues that virtually every founder took for granted that religion would play a role in the governance of the nation, and would have understood the First Amendment as allowing that. (Massachusetts, on whose constitution the US document was partly modeled, had a state religion until 1833.) The most devout drafters saw the history and future of the nation through an explicitly Christian “providentialist” lens, but even the more secular-leaning leaders were comfortable with public Christian prayer and symbols.
In what he calls “the American settlement,” Smith says the founders left the question of how great a role religion should play in the American story to state and local voters: Secularists and “providentialists” could fight it out at the ballot box over just how much influence religion would enjoy in policy.
Smith, who co-directs the USD Institute on Law and Religion and is a longtime scholar of the subject, steps back to look at the full sweep of American history in his book, from the writings of the founders through the long arc of Supreme Court jurisprudence on the subject. He believes the Supreme Court swerved away from the founders’ intent only in the mid-20th century, when it tried to replace the messy give-and-take of democratic compromise on religion with rigid constitutional rules. This approach was epitomized and cemented by the school-prayer decisions of the 1960s, which held that even nondenominational Christian prayers to start the school day amounted to the “establishment” of religion—in his view, setting the stage for the modern culture wars. Such precedents also led to “notoriously erratic” jurisprudence about when and where religious symbols can be tolerated.
Ideas spoke with Smith by phone in his office in San Diego. This interview has been edited and condensed.
IDEAS: Among the founders, there was a division between those who held what you call a providential view of history and those with a more secular perspective. Who was on each side? Sketch the situation at the founding.
SMITH: The secularists most prominently include Thomas Jefferson and James Madison. They did favor more of a separation between religion and government than some of their contemporaries did. So, for example, [the Supreme Court] Justice Joseph Story and many other jurists of the time would sometimes say that Christianity was part of the common law. Jefferson disputed that . . . although he included religious language famously in the Declaration of Independence, and in his inaugural addresses he argued for Americans to pray and so forth. But he was more secular than Washington and John Adams and, later, and perhaps most conspicuously, Lincoln.
IDEAS: You then describe a long period in which America operated under essentially a compromise—one that was far from philosophically pure, but which you think worked pretty well.
SMITH: The American settlement basically was one which each of these positions [the providentialist and more secular] was a respectable and legitimate position, but neither one would be elevated to the status of Constitutional-law orthodoxy. Each one would have a place at the table. The settlement reflected what I sometimes call a principle of open contestation—much in the way you might way say that the political system accorded the major parties positions as legitimate contenders. One will prevail at one time in one place, another in another time and another place.
Under the rough terms of the American settlement, religious freedom increased, religious pluralism increased, the state establishment of religion was eventually abandoned.
IDEAS: How did cases on funding parochial schools—a 1947 case said the direct funding of religious instruction would be improper—and then the school-prayer decisions of the ’60s mess up the American settlement?
SMITH: The Supreme Court, most importantly with the school-prayer decisions, effectively rescinded that settlement, because the school-prayer decisions effectively said that the constitutional position or orthodoxy was the secularist one.
If I can make an analogy, that would be the modern counterpart to a decision in the 16th or 17th centuries that of the two contending sides, the Protestant or the Catholic, one was the preferred party of a realm.
IDEAS: What would the world look like now if the American settlement had held? I assume that would mean people reciting prayers in school against their will.
SMITH: Probably not. The Supreme Court in the Barnette case [West Virginia State Board of Education v. Barnette (1943)], well before the school-prayer cases, had already ruled that Jehovah’s Witnesses and anybody who chose not to recite the Pledge of Allegiance had a Constitutional right not to do so.
IDEAS: But they’d have to sit through a Christian prayer.
SMITH: But they might have to sit through a prayer—that’s true.
IDEAS: Certainly people would have to tolerate public displays of the cross, or the Ten Commandments.
SMITH: If the court had not gone the route it had starting with the school prayers and going with the no-
endorsement cases in the 1990s there just wouldn’t be a good constitutional challenge to those forms of expression.
IDEAS: Could devout Baptist business owners refuse to hire Catholics or Muslims?
SMITH: Almost surely in some jurisdictions religion would play a more prominent role than it would in other jurisdictions. As far as employers’ discriminating against people on the basis of religion, I’m not sure that would follow. That would depend on employment-discrimination laws. Interpretations of the religion clauses wouldn’t necessarily dictate what employment discrimination laws would look like
The part that I think is the most interesting is what effect retaining the American settlement might have had on what we call the culture wars. My view is that the Supreme Court seriously aggravated the culture wars.
SMITH: Even when they win, the conservative or religious side still feels I think somewhat aggrieved knowing that its position is officially a bit heretical, and that the only way to save some of these symbols is to interpret them as having secular content, which is somewhat offensive. But the people on the other side are aggrieved as well, because they’ve been assured by the Supreme Court that these kinds of expressions are unconstitutional and yet in many of these cases they lose anyway.
IDEAS: Without the current understanding of religious freedom it would be perfectly valid for a citizen to say, “The Bible forbids it” as a reason for casting a vote against gay marriage?
SMITH: Right. [The court] would just say, “From the beginning, Washington, Lincoln, and millions of Americans have acted on religious grounds, and that’s definitely just not impermissible.”
IDEAS: In your book you tend to focus on how this compromise helped Americans get along. But it’s going to sound to some people as if you’re giving a green light to theocracy.
SMITH: I think that would be a wrong response. The American settlement always did include hard commitments to the freedom of the church, or the separation of church and state—the emphasis there is on “church.” People who like to recite the slogan “separation of church and state” almost always immediately then slide from “church” to “religion” and think it means something like separation of religion from government. But the actual commitment to a separation of [any one denomination] and state was part of the American settlement, and that would mean no theocracy—at least not a theocracy in any meaningful core sense.
Correction: Because of a reporting error, an earlier version of this article misidentified the university where Steven D. Smith teaches. He is a law professor at the University of San Diego.