Five Myths Secularism Wants You to Believe About America’s Religious Freedom

Whatever happened to religious liberty? The story you’ll hear at a typical university goes something like this: America was founded on the principle of a strict separation between church and state, in which the government was to always maintain a kind of secular neutrality and treat all religions equally. However, being people of their time, the founders continued to prefer Christianity and to live in a way that was counter to their own founding principles. But by the mid-twentieth century, America began to lay hold of the true religious freedom promised in her founding principles, largely through the courage of a new Supreme Court. But now, radical religious fundamentalists are seeking to impose their religious ideals onto government, threatening to destroy our newly flowering liberty. But as dominant as this narrative has become, at least a few scholars are presenting an alternative story.

Steven Douglas Smith, Professor of Law at the University of San Diego in California, is one such scholar. His academic and legal interest in America’s concept and practice of religious freedom has spanned decades. In 1995, Smith began challenging the standard historical narrative, in his first published book Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom.^[1] Now, twenty years later, Smith has offered an alternative story (a revised narrative) in The Rise and Decline of American Religious Freedom that paints a different historical picture.^[2] Smith argues that religious fundamentalists are not to blame for the loss of religious liberty. In Smith’s revised narrative, the secularists themselves have taken up the fundamentalist position and methods, and they are culpable for undoing the nineteenth-century American settlement on religious freedom.

The Myth of Religious Freedom

Before he critiques it, Smith begins his book by summarizing the standard story of religious freedom in America, which he says includes five themes. First, Americans were “Enlightened innovators” (1). The founders who framed the Constitution “committed themselves . . . to church-state separation and the free exercise of religion . . . [and they initiated] a novel and even radical ‘lively experiment’” (1). Simply put, “American founders, freed up by the Enlightenment, boldly broke from [a] centuries-old pattern” of “political and religious authorities . . . [imposing] religious orthodoxies on their subjects” (1).

Second, the First Amendment was “monumental” and “meaning-full” (2). The “First Amendment’s religion clauses embraced sweeping commitments to preventing government from sponsoring or intruding in religion, to ensuring that citizens of all faith (or of none) would be treated equally, and to keeping government religiously neutral and secular” (2). Smith says, in the standard story, these commitments “were in some sense contained or implicit in the First Amendment from the outset” (2).

Third, though the founders were indeed enlightened, they continued for a time to live according to the older principles of religion and civics. The “principles embodied in the First Amendment were not realized overnight . . . [and] the new nation persisted for generations in practices that were fundamentally incompatible with constitutional principles” (3). This was a “long, dark interlude” before the illumination could prevail across the land” (3).

Fourth, the modern (i.e., twentieth-century) American legal court realized the implicit principles that had been previously contradicted or neglected. Smith says, “Beginning in the 1940s . . . and especially from the 1960s on, a now more courageously committed Supreme Court acted to redeem the constitutional promise of religious freedom” (3). It was not that the modern courts were innovative, according to the standard story, but that previous generations of American legislators and jurists were self-contradictory for one reason of another.

Fifth, “conservative religious” citizens and activists in America are now retreating from those original constitutional principles (4). Smith writes, “In recent decades, the so-called Religious Right has become active and politically influential, and the American political system has accordingly experienced a retreat from or even degradation of the constitutional principles of religious freedom” (4). In the standards story, religious fundamentalists are to blame for modern American threats to religious liberty.

In response to this standard story, Smith writes, “In good conscience I can concede, cheerfully, this much: the oft-told, much beloved story of religious freedom in America is not wholly false . . . And yet a collection of partial truths can combine, as we know, to make up a tale that is, in the aggregate, profoundly misleading” (3). However, Smith goes on to say directly, “Aggregated, the standard themes add up to a story that is, if not flatly false, at least fundamentally misleading” (6). Then he offers a “revised version” that he says is a “complement to and corrective of the standard story” (12).

Recovering the American Tradition

In his revised view, Smith provides what he believes are the five themes of American religious freedom, in direct contrast to the five themes provided by the prevailing narrative. First, “American religious freedom [was] a (mostly Christian, marginally pagan) retrieval and consolidation” of two medieval themes, “freedom of the church” and “freedom of the ‘inner church’ of conscience,” mixed with Enlightenment pluralism (7). Thus, though the founders may have been “enlightened” (i.e., bearing some marks of the philosophical developments of their day), they mostly argued on the basis of historic Christian reasoning. In other words, their rationale was Christian (not secular), but distinctly Protestant (not Roman Catholic).

Second, “the religion clauses of the First Amendment were understood at the time as doing nothing especially noteworthy” (8). Rather, as Smith described,

the central purpose of the clauses was simply to reaffirm the jurisdictional status quo . . . [namely,] matters involving the establishment and exercise of religion would remain the business of the states, as nearly everyone agreed they should be. (8)

Thus, the First Amendment was not in any way intended to provide the foundation for innovation, nor to move toward religious disestablishment at the state level.

Third, “the revised story sees the [American] Republic’s first century and a half as the period in which the country’s distinctive and distinctively promising approach to religious pluralism . . . was worked out and progressively realized” (9). During that time, “providentialist interpretations” and “secularist interpretations” of both religious freedom and the nation itself were left unresolved and open to contestation (9). Thus, this period was not dark, but rather a particularly bright season of genuine religious liberty in America, wherein citizens with greater and lesser religious convictions could enjoy some features of American jurisprudence. No single group was a clear and comprehensive winner, but both claimed benefits and made concessions.

Fourth, “When the [Supreme] Court decided to intervene aggressively in the nation’s religious affairs . . . it in essence dissolved the principle of open contestation that had been central to the American settlement, elevated . . . the secular interpretation . . . to the status of hard constitutional law, and proceeded to impose that interpretation on the nation” (10). Rather than maintain the undecided American settlement in which either religious or secular arguments could win the day (depending on the case), secularists ascended the throne and condemned religious argumentation and rationale as heresy. This development was a reversal and not a realization of American religious liberty. Secularists declared victory over the religious and demanded that all play by secular rules in the arenas of civics and law.

Fifth, “the classic rationales for religious freedom, because they were and are theological in nature, are thought by many theorists and jurists to be inadmissible for purposes of public justification” (11). Smith admits, as the standard story claims, that “the status of religious freedom is currently in jeopardy” in America (11). “But,” he says,

the threat comes not so much from religious conservatives who reject constitutional commitments as, perhaps paradoxically, from secular egalitarians who purport to be carrying out the commands of the Constitution’s (self-subverting) commitment to religious freedom. (11)

Thus, the secularists in America today are not the heroes of religious liberty, but the villains who are destroying it.

The Illusion of Neutrality

Smith’s revised narrative may be debated, and no doubt the standard story of American religious freedom has won the day. However, it would seem that Smith’s conclusion is indisputable: the “genuine neutrality” of government with regard to religion “is impossible” (130). It is so, as Smith argues, because “the seemingly irresistible appeal of neutrality turns out to rest on a spurious promise”—namely that neutrality is “little more than a sort of political optical illusion” (130). As Smith points out, neutrality itself “is consistent with some religious positions but inconsistent with others” (130). So too, “many or most or maybe all laws and government policies . . . will be consistent with some religious (and secular) views but inconsistent with others” (130).

As the Christianized culture of American civil order eroded, the Christian principles upon which secular neutrality relied from the beginning have become inadmissible in civil discourse and judicial argument. This has exposed the reality that there is no such thing as an irreligious person. The secularists may refuse to admit their own religion as such, but if it quacks like a duck, walks like a duck, and swims like a duck, then we must acknowledge the proverbial duck for what it is—a type of secular religion. Smith writes, “Under the constraint of professed commitments to neutrality . . . modern secular orthodoxies typically refuse to acknowledge their character as orthodoxies” (137). In other words, if a group anathematizes some (or any) religious orthodoxies, then whatever you call the group doing the anathematizing, it is some form of competing religion.

The Religion of Secular Egalitarianism

When one honestly observes the principles and practices of secularism, it takes the form and function of a religion. Smith makes this very argument, and he lays out three features of “secular egalitarianism” as a “secular version of Christendom” (i.e., a secular version of the church-state merger) (153). First, says Smith, “contemporary proponents of secular egalitarianism view equality as the foundation of our legal political order” (154). Equality—as defined by secular axioms—is the dogmatic (i.e., religious) parameter within which all legislation and judicial judgment must reside.

Second, Smith writes, “the proponents of secular equalities often seem serenely untroubled by doubt” (154). As much as any faith-filled religious devotee, secularists are quite committed to their fundamental assumptions without sensing any need to justify them. Secularists often accuse religious fundamentalists of believing in unjustified presuppositions, but it is the common secularist practice to do precisely this—for example, “equality” and “neutrality” are paramount for secularists, but they offer no consistent definition and give no rationale to justify their importance.

Third, Smith concludes, “secular egalitarianism . . . is not content to regulate outward conduct but instead seeks to penetrate into hearts and minds” (154). Just like religious dogma, secularists demand both obedience and belief. For example, secularists are not satisfied merely with equal treatment under the law for same-sex couples, they instead require that every citizen believe that gay marriage is marriage. Likewise, the proliferation of hate crime legislation proves that secularists are not satisfied to condemn a murderer (or assailant, etc.) for their external crime, they also require penalties for internal motives. In fact, they judge the intentions of the heart as more heinous than the crime itself—as is manifest in the legal penalties for each.

These three features of secular egalitarianism—doctrine, dogma, and devotion—prove that it is as much a religion as any of those it aims to eradicate. One of the religious axioms of secularism may be that secularism is not a religion, but this is simply false. What is apparent is that secularists are effectively claiming religious superiority while simultaneously denying the status of a religion.

Is this a New Religious War?

With all of this insightful history and judicial analysis, Smith leaves the reader quite disappointed by offering no recourse or solution. He seems to indicate that traditional Christians and those who take a providentialist (rather than secular) view of American religion liberty ought to at least take comfort in the fact that the Supreme Court has inconsistently applied the secular doctrines in recent decades (158). This is little comfort, however, when the high court is so easily swayed by the placement of a simple majority of justices. It seems only a matter of time before secular judges will more thoroughly and consistently apply the secular religion to American civics and law.

Smith also says that “the fate of religious freedom will likely depend to a large extent on the fortunes of ‘the church’” (i.e., Christianity) in America (164). He considers, “if the church continues to be a vigorous and vital institution in society, religious freedom will probably be okay” (164). However, Smith makes no mention of where Christian vigor or vitality should be aimed or how these might be exercised. Furthermore, many Christians in America are surely desirous of something better than “probably okay” regarding religious liberty. Such a sentence is laughable when one assesses the dangers facing traditional Christians in America right now—from job loss to political ostracism and from social condemnation to academic restraint.

Despite his insistence that things will “probably be okay,” Smith concludes with a dire warning: “if the right to religious freedom in [a] jurisdictional sense is not secure . . . then all other rights will be likewise imperiled” (169). In other words, if beliefs and practices argued and grounded from an explicitly Christian perspective is not an enforceable legal right, then all other rights can be lost as well. Christians, therefore, ought to be far more aggressive in their fight and aim for something far more substantial than a religious liberty that is “probably okay” (169). The stakes are too high. Christians may not only lose the freedom to live consistently as a Christian, but they may also lose their freedom to live as Americans—at least in any way resembling the American freedoms that marked the eighteenth and nineteenth centuries.

Conclusion

With this book, Steven Smith has given conservative and religious proponents of religious liberty an alternative narrative that reassures them that they are not crazy. Secularists are indeed on the attack, attempting to eradicate all religions but their own. Such an offering by Smith is sure to be warmly welcomed, since it vindicates what many religious conservatives know in their bones and what some of them have discovered for themselves by reading from the primary sources. For this, Smith is due a great deal of gratitude—indeed, his historical and judicial research and analysis are worthy of it.

And yet, what religious conservatives really want to know right now is what can be done. How can we preserve what religious liberty we have now? And how can we regain the ground already lost? Writers like Smith seem unable or unwilling to acknowledge the obvious: since neutrality is impossible, and since secularists “are not eager to accommodate religious deviations” from their own set of dogma, then it must be time for Christians to (without apology or hesitation) refuse accommodation to the secularists (156). The curtain has been lifted, and the fundamental conflict has been exposed. This is a new religious war. All religious soldiers must come to their battlements (secular devotees and Christians), and let the fighting commence. God willing, it will be a bloodless battle, but a battle it must be.