And in fact, accommodation has been the typical American approach to religious diversity. For about three decades in the twentieth century, the constitutional doctrine of the First Amendment’s free exercise clause, as expounded by the Supreme Court, explicitly embraced a commitment to religious accommodation. At least as understood by most lawyers and scholars,13 the doctrine mandated that people whose religion would be burdened by compliance with state or federal law should be exempted unless the government had a “compelling interest” in their compliance that could not be achieved in some less restrictive way. This exemptions doctrine was officially articulated in 1963 in a case called Sherbert v. Verner,14 and the doctrine persisted until it was renounced by the Court in 1990 in Employment Division v. Smith,15 the much-discussed “peyote case.”
Given these judicial markers, commentators sometimes suggest that the accommodation strategy prevailed only during a relatively short period of American history.16 But this characterization greatly understates the historical scope and importance of the accommodation approach. For much of the nation’s earlier history, states were the primary locus of governance, and many states built religious accommodation requirements into their state constitutions.17 Legislators in the early republic also recognized the wisdom and the justice of trying to accommodate religious dissenters; they looked for ways to excuse Quakers from various legal requirements such as oaths, removal of hats in court, and military service.18 In addition, judges supported and practiced religious accommodation; they interpreted constitutional commitments to mean that sincere religious objectors should be excused from complying with laws that would require them to violate their religious obligations. In one early New York case, for example, a judge excused a Catholic priest from revealing information about a crime that he had heard in confessional.19
Thus, as Paul Horwitz observes, “accommodation of religion is an aboriginal feature of American pubic law. From the earliest days of the Republic, exemptions from legally imposed burdens on religious belief and practice ‘were seen as a natural and legitimate response to the tension between law and religious conviction.’ ”20 To be sure, there were all along differences of opinion about whether and when exemptions should be afforded, and about whether exemptions should be granted by legislators or judges. The commitment to accommodation never commanded unanimous support.21 Even so, the value and the justice of accommodation were widely and repeatedly acknowledged from the outset of the republic.
The major authority apparently contradicting this interpretation is the nineteenth-century case of Reynolds v. United States.22 In this and two follow-up decisions,23 the Supreme Court rejected the claim of Mormons, or members of the Church of Jesus Christ of Latter-day Saints, who contended that laws prohibiting the practice of plural marriage infringed their freedom of religion by compelling them to violate what Mormons at that time accepted as their religious obligation to enter into polygamous marriages. Reynolds, it is conventionally said, interpreted the First Amendment’s free exercise clause to protect only religious beliefs, not religious conduct.24
But Reynolds is a more complicated decision than the standard description conveys. Indeed, it might be said that there are effectively two majority opinions in Reynolds. One opinion does contain the “belief/conduct” language that most lawyers and scholars have seized upon.25 If this were the sole rationale for the decision, however, the Court could and should have ended its analysis at that point. Mormons are free to believe that they should practice plural marriage, the Court would have said, but they are not legally free to act on that belief. End of discussion.
In fact, however, the Court did not finish up with this conclusion; instead, it went on to argue, at length, that polygamy was a serious evil that could not be countenanced in America’s free society.26 Polygamy undermines the sanctity of marriage, the Court contended, which is vital to American institutions.27 And polygamy promotes an undemocratic authoritarianism by embracing the oppressive “patriarchal principle.”28 (This argument in Reynolds may come as a surprise to those who suppose that nineteenth-century American law and society were thoroughly and unapologetically committed to patriarchy.) These arguments about social harm would seem to be wholly superfluous if the Court was indeed committed to the view that only religious belief, not conduct, is protected by the free exercise clause. But the Court’s arguments were nicely congruent with the accommodation/balancing strategy sometimes said to have developed only later in the twentieth century.
Clark Lombardi contends that this second Reynolds opinion—the one that insisted that polygamy was an evil so serious that it could not be accommodated—resonated with views commonly expressed by nineteenth-century judges, legislators, and scholarly commentators.29 Many courts and commentators of the period, Lombardi argues, recognized an obligation to accommodate religion (though others did not).30 But proponents of accommodation acknowledged that legal exemption could not be extended to excuse egregious or intolerable evils. One standard example of an intolerable evil (used even before the Mormon religion came on the scene) was polygamy.31 The Reynolds decision fit precisely into this familiar pattern; it listed human sacrifice as an example of an evil so grave that it could not be accommodated,32 and it argued that polygamy was another such instance. This section of the Reynolds opinion thus appears to presuppose a presumptive obligation to accommodate religion.
To be sure, this second theme in Reynolds did not erase the first theme—the one suggesting that free exercise protects only belief, not conduct. That interpretation, along with one of the principal arguments that the Court gave for it (namely, that excusing religious conduct would make every citizen “a law unto himself”),33 was in a sense ahead of its time; we will return to the argument shortly. For now, the important point is that Reynolds in no way negates the fact that from the outset of the republic, a commitment to religious accommodation, though not uncontroversial, was a prominent theme—arguably the central theme, along with nonestablishment—in the American approach to religious diversity. That theme persisted and was elaborated more explicitly by the Court in the twentieth century.34
Then, in 1990, in Employment Division v. Smith, the so-called peyote case, the Court disavowed the accommodation doctrine as a constitutional requirement in favor of a rule holding that so long as a law is religiously “neutral” and “generally applicable,” no accommodation is constitutionally required. At the same time, however, the Court explicitly authorized legislatures to mandate religious accommodation as a matter of statute.35 And indeed, legislatures—including Congress and numerous state legislatures—promptly did just that (as in fact they had already long been doing).36 Congress, for example, adopted a law called the Religious Freedom Restoration Act that essentially reestablished the exemptions doctrine as a statutory matter. That act was adopted with virtually unanimous approval in Congress, and with the support of a range of diverse groups from the ACLU to the National Council of Churches.37 In signing the statute, President Bill Clinton delivered an eloquent address praising religious freedom as “perhaps the most precious of all American liberties” and urging Americans to “fight to the death to preserve the right of every American to practice whatever convictions he or she has.”38
Such statutory accommodation requirements continue to be enforced by courts to this day.39 (Although, for reasons we will consider, they are increasingly embattled, as the vehement response to recent efforts to enact religious accommodation provisions in several states reflects.)
The Transcendent Character of the Accommodation Strategy. But why should government recognize any presumptive obligation to try to accommodate religion? As it happens, the accommodation strategy is an approach with a discernibly Christian character. Or, rather, it is an approach oriented toward recognition of a transcendent authority—a recognition that, though hardly limited to Christianity, was part of the legacy that Americans inherited from Christianity. This Christian or transcendently religious character of the accommodation approach is app
arent both in the historical antecedents that led up to the approach and in its inherent logic or structure.
First, history. The accommodation approach has its historical roots in distinctive Christian ideas that developed in the West over the centuries since Jesus first proclaimed the Christian gospel to a small band of disciples. This development has been discussed at length elsewhere.40 What follows is a shamelessly condensed synopsis.
The New Testament narrates how Jesus, in response to a question about the permissibility of paying taxes, declared that there are two authorities that we are obligated to respect: the temporal authority, but also the spiritual authority. “Render unto Caesar the things that are Caesar’s,” Jesus enjoined, “and unto God the things that are God’s.”41 As we saw in chapters 5 and 6, the dualism inherent in this view was elaborated by later Christian thinkers, including by Augustine with his doctrine of the “two cities.” The practical and legal implications of this dualism took centuries to develop; indeed, those implications continue to be worked out by Christians in the context of the political challenges of their contingent and ever-changing situations. But the first major political product was a commitment to “freedom of the church” from state control—an idea that began to be asserted by bishops almost immediately after the official recognition of Christianity.
Thus, in the fourth century the emperor Constantius attempted to impose an Arian version of Christianity on the church. Constantius, like his father Constantine, seemingly supposed that the emperor would continue to exercise the control over religion that emperors had always enjoyed. Now, however, orthodox bishops resisted, sometimes incurring the emperor’s wrath.42 In the sixth and seventh centuries, church leaders adopted a similar (and sometimes fatal) resistance to imperial efforts to impose the monophysite and monothelite doctrines on the church.43 For his opposition to the monothelite doctrine, for example, Maximus the Confessor was tortured and exiled, after being silenced by having his tongue and right hand cut off.44 It was during this period that Pope Gelasius articulated his often-quoted declaration that “Two there are”—namely, two authorities.45
This commitment to freedom of the church, or libertas ecclesiae, was developed more systematically and aggressively in the “papal revolution” beginning in the eleventh century.46 The church’s resistance to secular political control produced a torrent of polemics and manifestos and legal and political theories.47 The struggle also produced its epic battles—the confrontation in the empire between Henry IV and Pope Gregory VII, the clash between Henry II of England and Archbishop Thomas Beckett, the conflict between Henry VIII and the deeply devout former lord chancellor Thomas More. And the struggle produced its villains—including, from the pious perspective, all the aforementioned Henrys—and its sainted martyrs, including both of the aforementioned Thomases.48
Then, following the effective takeover of the church by monarchs in England and elsewhere in the sixteenth century, and now more under the direction of Protestant Christians, the “freedom of the church” modulated into the “freedom of conscience”—conscience becoming a sort of “internal church” as the new locus of God’s essential interaction with humans.49 Deference previously given to the church as an independent jurisdiction was extended to the individual conscience; and indeed, early proponents of the freedom of conscience sometimes defended the commitment in explicitly jurisdictional terms. The government, they argued, had no jurisdiction over the conscience, which was Christ’s kingdom.50 This newly vigorous commitment to conscience was energetically expounded by seventeenth-century figures like Roger Williams, William Penn, and John Locke.51 Later, in the eighteenth century, it was taken up by American founders, including James Madison and Thomas Jefferson.
In this way, the Christian commitment to dual jurisdictions—Caesar and God—wound its meandering way into the American understanding of religious freedom. Madison carefully developed the argument that our duties to “the Creator” are prior to our duties to society; hence, matters of “religion” are “wholly exempt from [the] cognizance”—or, in other words, the jurisdiction52—of state and civil society.53 Somewhat more loosely and grandly, Jefferson proclaimed that “Almighty God hath created the mind free” from government regulation in matters of religion.54 Both arguments expressly rest on the premise that there is a higher authority—“the Creator” and “Governor of the Universe” (Madison) or “Almighty God” (Jefferson)—on whose jurisdiction earthly governments should not intrude. The classic American statements were thus remote progeny of Jesus’s “Render unto God [and thus, by implication, not to Caesar] the things that are God’s.”
But the Christian character of the American approach is not merely genealogical; it is also logical or structural. Once again, the basic idea of religious accommodation, as it has been understood and practiced in America, is a modern expression or instantiation of the same kind of political dualism evident in the “two cities” doctrine of Christian thinkers like Augustine, or in Jesus’s teaching that we have obligations to a temporal authority—Caesar, or the state—but also to a higher and transcendent authority, or God. As discussed, the recognition of that higher authority was precisely the basis of the commitment to religious freedom as articulated by Madison, Jefferson, and others. Even if Madison and Jefferson had never heard of Jesus or Christianity, in other words, or even if they had consciously rejected Christianity—as it can be argued that they (or at least Jefferson) did55—we could still say that their approach to religious freedom reflected the same dualist logic and the same deference to the transcendent that had been central to Christian thinking.
Not surprisingly, the American version of the dualist theme had its distinctive character. In the Middle Ages, for example, the higher authority or God was represented by the church—by the church, in the singular—which was viewed as an independent jurisdiction, or a sort of embassy of the heavenly kingdom, that the state was obligated to respect. If a priest was accused of committing a theft or a rape, the state could not simply apprehend the culprit and apply its law; it was required to turn the offending cleric over to the church, to be tried in an ecclesiastical court56—just as today an offending foreign diplomat might be turned over to the nation that he or she represents. Later, as conscience came to assume the role of the church as the locus of communion between God and human beings, deference was extended to the conscience. In England, nonetheless, and in some American states, this sort of claim of conscience would still be asserted against the backdrop of the church—of the officially recognized and established church, which itself propounded some orthodoxy or official version of the higher truth.
As American constitutional understandings developed in the late eighteenth and early nineteenth centuries, by contrast, no such institution and no such orthodoxy were recognized. (This was, of course, the other major American theme—the nonestablishment theme.) The acknowledgment here was of the reality of transcendence (or, in a more modest and agnostic version, of the possible reality of transcendence).57 It was deliberately not a recognition either of any particular institution deemed to represent that transcendence or of any official or “orthodox” version of the transcendent truth. In that important sense, the American position—unlike, say, the British position—was not specifically or exclusively Christian. Influenced by the Christian legacy, though, the American position recognized the jurisdiction of the transcendent, or of “religion,” over which civil society and government had no “cognizance,” as Madison put it.
The consequence of this acknowledgment of transcendence in conjunction with the rejection of an established religion or orthodoxy was that within wide bounds it was left to individuals (and to associations or churches with which individuals might freely choose to affiliate) to judge what the transcendent truth and its corollary obligations might be. The government’s obligation was merely to refrain from interfering with—or, put positively, to accommodate—matters within that jurisdiction over which the state had no authority, or no “cognizance.”
In sum, both in its historical roots and in its inherent structure or logic, the characteristic American commitment to religious accommodation had, and has, a Christian or transcendently religious character. It is based on an acknowledgment of a transcendent reality, or at least of the possibility of such a reality.58 In that sense, the accommodationist approach to religious freedom not only grows out of a Christian history and conception, it also betokens a community, or a city, constructed and constituted not on Christianity per se but on a conception of transcendence that was a legacy of the Christian tradition. Much in the way that public symbols like those discussed in the preceding chapter, and also laws regulating sexuality, operate as symbols that construct and express the kind of community that we are, the accommodationist approach to religious freedom is more than just a strategy for dealing with religious diversity. It is a symbol—a constitutive symbol, a transcendently religious constitutive symbol—of the kind of community America is. This is a community, as Lincoln and now the Pledge of Allegiance put it, that is “one nation under God.”
The Turn from Transcendence
Which is precisely the underlying problem, at least for citizens who reject a Christian or transcendently religious conception of American community.59 Thus, it should hardly be surprising that as transcendent religiosity has come to be challenged and to a significant extent displaced by some combination of positivistic secularism and a more immanent religiosity, the historic commitment to religious freedom, at least in its familiar American version favoring religious accommodation, has come to be increasingly embattled.60 It is challenged by a different conception of religious freedom resonating with a different conception of community—one that rejects the “two cities” position (with its acceptance of transcendence) in favor of the city. Of the fully and exclusively sovereign city,61 we might say—a city that, much like the ancient pagan city, can recognize and celebrate immanent sanctities but is unwilling as a public matter to recognize or defer to any higher or supposedly transcendent authority.
Pagans and Christians in the City Page 44