If religion threatens to get "out of hand", it must be beaten back. At this point, the wars of religion and even the Spanish Inquisition get trotted out in argument as if they were serious historic possibilities in late twentieth century American democracy, as if the return of the Spanish Inquisition—perhaps under the auspices of the notorious 'Christian Right'--were the greatest danger we faced from a resurgent and, by definition, intolerant and absolutist religiosity.

If this is the regnant story of liberalism's triumph in relation to religion—that triumph, remember, being in large part the way liberalism rescued religion from its endemic horrors—are there other ways to tell the tale? Certainly, although alternative explanatory and historic frameworks have never acquired the "self-evident" status of the narrative described above. Here the difficulties are daunting. Liberalism and religion is such a protean topic, having so many possible shapes, permutations, twists, and turns, that one embarks on the task of beating this material into shape with some trepidition. Too much that is too important will be left out. With this caveat in mind, I will proceed.

Let's rummage in the pre-liberal past for a moment or two. Before the emergence of those social contract theories associated with liberalism (though not liberalism exclusively) , assumptions about governance and rule held that government's legitimacy turned on a divine mandate. This needn't mean that a ruler ruled absolutely or tyrannically; indeed, a ruler could violate the office which was his sacred trust, go from being king to being tyrant, and be openly chastized, even punished with tyrannicide as a kind of emergency escape valve. The major point is that rulers were beholden to a power outside themselves for the office they held in trust. The theory was that this would stay the hand of those rulers tempted by excess, overtaken by what St. Augustine called the libidi dominandi, or a lust to dominate. The historic record is uneven, of course, as to just how much restraint was afforded by the fact that a ruler was not the judge of his own legitimacy. But it is important to note that pre-modern societies in Europe—and that is my focus—were honeycombed with communal and corporate bodies functioning autonomously. The university, an invention of the Middle Ages, is a good example of an autonomous communal institution into which the King's writ did not run. Families were inter-generational and extended and this afforded a good measure of social power and protection. Guilds set standards for what we would now call manufacture—for skilled trades and crafts. Most importantly, no doubt, religion and civic standing were tethered together. You couldn't be a subject in good standing unless you were a communicant in good standing.

All of this was to change. With the coming of greater commerce, the break-up of medieval Christendom, the centralization and solidification of monarchies and principalities, and, in 1555 the Peace of Augsburg with its enshrining of the cuius regio rule, namely, that the faith of the ruler was the faith of his kingdom, Western Europe moved decisively into a new era. Religious adherence and standing as a political subject remained mutually constitutive. But this, too, changed dramatically with the dissolution of the once familiar political and social world. Powerful new sources of legitimation were located and proclaimed for earthly rule: legitimation lies with the people, with subjects who have contracted for that purpose—that was one startling idea that traced its lineage back to the popolus romanus and was brought forward by legists in the service of the centralizing monarchy par excellence, that of the Capetians in France.

Skip ahead several centuries and the social contract thinkers appear upon the historic stage. To lump, as we do, Hobbes, Locke, and Rousseau together as social contract thinkers isn't that helpful because their differences are far more interesting than their similarities. Hobbes is so idiosyncratic I'll not spend time on him. For our purposes, Locke and Rousseau are, and remain, important. Locke, associated famously with his Essay on Toleration as well as his treatises on government, insisted, as a precondition for civil government, that religion and government had to be distinguished and lines drawn between them. The seeds of the privatization of religion are here sown and these were to germinate most powerfully and completely in our own time.

Locke drew up a rigid civic map with religion within one sphere and government in another. A person could be a citizen of each, so long as that citizen never attempted to merge and to blend the two aspects of himself. (And it was a "him" self in this era as women lacked civic standing. Herein lies a tale in itself. My hunch as to the reluctance of Western polities to grant women the vote is far more complex that simple gender discrimination, as it is now called; rather, women were feared as being a "backward" element, that is, women remained more wedded to their faith and were more pious. Certainly the radical laicism of the post-revolutionary French Republics regarded women as suspect characters mired in "Catholic superstition" and somehow under the control of their parish priests: women didn't get the vote in France until after World War II—the last major Western democracy to grant women the franchise. But this is a story in itself. Back to the main theme.)

In the religious domain, one answered God's call. But step out of that domain and take one step into the civic realm and God doesn't and musn't figure directly any more. One's fidelity is pledged to the magistrate and to the proper business of governing. If the magistrate should egregiously overstep its bounds, there is always the "appeal to heaven" and the possibility of revolution. All religions--save atheism and Roman Catholicism--are to be tolerated. (Atheists couldn't be trusted, Locke argued, because they would not take an oath on the Bible; Catholics couldn't be trusted because they had a double loyalty, because theirs was ineradicably a political theology at odds with constitutive liberal principles.) Disobedience must take place only in the most extreme situations with the "appeal to heaven" that violates the separation doctrine quite explicitly. But once God is appealed to in extremis, God must retreat. Most of the time–indeed, the norm--holds that religion and government need not meet one another directly. Religion is located as irrelevant in a strong public sense. Note here that, in the words of constitutional scholar, Michael McConnell: "Locke's exclusion of atheists and Catholics from toleration cannot be dismissed as a quaint exception to his beneficent liberalism; it follows logically from the ground on which his argument for toleration rested. If religious freedom meant nothing more than that religion should be free so long as it is irrelevant to the state, it does not mean very much." Why? Because religion has been privatized and its meaning reduced to the subjective spiritual well-being of religious practitioners.

James Madison picked up on certain aspects of Locke, as did Thomas Jefferson, others. Locke was certainly primus inter pares of social contractarians for the founders of the American republic, some of whom (Jefferson most notably) held views about the salutary nature of religious indifference not embraced by the vast majority of his fellow country-men and women. But the Lockean formula had finessed as many problems as it attempted to solve, presuming, as it did, that human beings could seal themselves off into compartments and be believers one moment; good subjects of the king the next. Instead and necessarily, the categories bleed into one another. But the "separate spheres" argument persisted, tethered to a wildly optimistic view that religious and governmental jurisdiction would rarely conflict. The only sure guarantee of that would be to render religion utterly privatized and publically irrelevant—something Locke didn't preach. But he helped to pave the way.

Here Rousseau enters as a shadow around the liberal disestablishmentarian project. For Rousseau understood that you couldn't demarcate spheres so tidily. In fact, Rousseau argues, what all governments and polities require, especially at their founding, is a civil religion of some sort or another so that religion constantly buttresses the legitimacy and authority of the civic entity in question. This civil religion was not a take-it-or-leave-it free-for-all. Indeed not. Civil religion welded together the different parts of the polity and demanded that citizens, through a form of civic membership in which religion was subordinated to the good of the polity, make ongoingly manifest their devotion to public life. Rousseau even wrote up a constitution for Poland in which he spoke keenly of civic games, quasi-religious rituals, the need for public display of patriotism. Any person who was divided in his loyalty and allegiance could never be a full-fledged participant in the patrie. A form of enlightened, reasonable civil religion was the glue that held the polity together. No one was exempted from this civil religion. Loyalty to the state is the ultimate loyalty that trumps all other forms of fidelity. Rousseau moves with vehemence against strong forms of Christianity, like Catholicism, because this form of faith inevitably puts a man at odds with himself. Believers are easily confused as to where their allegiances lie. They are placed, intolerably, under a dual obligation. Rousseau describes this situation with contempt, Catholicism taking the major beating as a religion so manifestly hideous he couldn't understand why it persisted. But, one way or the other, Catholicism's mere presence as an institutional form, buttress, and sustainer of loyalty and commitment to something other than the state, Rousseau aims to break down in order to redirect all the loyalty to the state. There can be no "private religion" in Rousseau's ideal polity. There is only civil religion or no religion at all, though Rousseau makes it pretty clear that civil religion is a necessary buttress to government and rule.

It is a short distance from Rousseau's declaration that the only good religion is a civil religion to the very different pronouncements of John Stuart Mill in his classic, On Liberty. Mill is adamantly opposed to civil religions: that would be an intolerable fusion of power. But he extends his animus to religion in general. Religion plays to the "worse" rather than the "better" parts of human nature. Religion has always been a retrograde force, standing in the way of reason, progress, and enlightenment. Religion survives now as an atavism but it is living on borrowed time. One day soon, in the wake of spreading enlightenment, all that is unreasoning Instinct will be supplanted by all that is Reason. In fact, Mill assumes a sharing or unity of moral and political beliefs among those individuals who are dominated by reason. For ultimately, according to Mill, reason must speak in one voice. In practice this meant that the ignorant or the irrational must defer to those who have attained enlightenment and learned to speak in the voice of reason. Given Mill's bifurcated understanding of mind that dictated one must attain an "apotheosis of Reason" and reject utterly the "idolatry" of Instinct, religion is not only privatized it is saddled with the burden of being responsible for most of history's horrors. Finally, only the weak require superstition. The strong do not need religious milk with their enlightened tea. This Millian backdrop helps to make intelligible a lecture I attended thirty-five or so years ago as an undergraduate, delivered by one Sir Julian Huxley, who announced in booming stentorian tones that by the year 2000 the remaining atavisms and superstitions would all have vanished in the cool, clear light of reason. The two most important slated for obliteration? Religion and nationalism. This is what one calls a failed prognostication.

Now: how did things fare on America's shores? How far did the writ of Locke or Rousseau or later Mill run? There are several analytic and historic tracks down which one must move simultaneously in this matter. Let's call them the "constitutional" and the "popular." The constitutional track is powerfully defined by the first amendment's protection against establishment and guarantee of free exercise. One could make the case that the astonishing evidence of Americans exercising religions freely, from the inception to the present, turns precisely on non-establishment. This may not have been what the framers expected to happen. But it does show that non-establishment of religion is not only not necessarily deadly to religion, it may help religion to flourish.

But there are tensions and strains in this picture that draw together the popular and constitutional tracks and help us to account for the fact that so many American citizens who are religious believers believe that their society has acted in ways that betray its commitment to free exercise in any robust sense. And free exercise is what America means in this matter. From the inception of settlement on these new shores, American democracy has been premised on the enactment of projects that were a complex intermingling of religious and political imperatives. The majority of Americans were religious seekers and believers who saw in communal liberty the freedom to be religious rather than freedom from religion. It is, therefore, not surprising that such a huge chunk of American juridical life has been devoted to sorting out the often inaptly named church-state debate. In a less churched society this would be a far less salient issue.

In a way, it is meet to argue that America embodies much of the best of what the West in general deeded to future generations in this matter: a refusal of theocracy; and a proliferation of religion. A differentiation between politics and religion was sown early on in Western culture with the emergence of various forms of papal doctrine distinguishing the regnum from sacerdotium, roughly marking the sword of the earthly and spiritual kingdoms respectively. The two got all tangled up with one another, to be sure, but they were nonetheless distinct. What Rousseau attempted to do was to fuse politics and religion into one in the service of politics. What Locke attempted to do was to drive politics and religion apart in order to promote "toleration", but at the price of privatizing religion over time. What American citizens did under the umbrella of non-establishmenent was to proliferate churches all over the country as public institutions that, rather than challenging government routinely, instead reminded people of what membership in a body requires, thereby sustaining those civic habits Tocqueville extolled in his classic work.

Ever present, of course, was the possibility that the church or churches might be a locus for dissent—for religious believers did claim a dual citizenship that theoretically could conflict. Indeed, such conflict would be nigh inevitable as too much of the same territory is claimed by both politics and religion. Thus Tocqueville: religion in general contributes to the maintenance of a democratic republic by directing the mores and helping, thereby, to regulate political life. In fact, Tocqueville insisted that the ideas of Christianity and liberty are so completely intermingled that if you tried to sever religion from democracy in America you would wind up destroying democracy. Democracy, he further claimed, needs the sort of transcendent justification that religion helps to provide; thus, the eighteenth century philosophers were wrong about the weakening of religion. "It is tiresome, " notes Tocqueville ironically, "that the facts do not fit their theory at all." Surprisingly, the separation of church and state--a secular state--had led to a society that was anything but. Perhaps, deep down, Amercans understood that religion feeds hope and is thus attached to a constitutive principle of human nature. Amidst the flux and tumult of a rambunctious democratic politics, religion shaped and mediated the passions. Were the day to come when those passions got unleashed upon the world unrestrained, then we would arrive at an unhappy moment indeed, a dreary world Tocqueville called democratic despotism.

So where's the problem? How does state sponsored irreligion make its moves? Over the last half-century during which, if anything, religious belief and church attendance have waxed and waned but are now at huge if not record highs, constitutional law has moved to privatize religion altogether. The strong separationists held sway at many points in constitutional adjudication. By "strong separationist" I mean one who seeks not only a secular state but a thoroughly secularized society, one stripped of any and all public markers and reminders of religion. Religion must be thoroughly privatized. It must become invisible to public life. There is in this position a built-in animus against the determination by religious denominations to sustain their own network of schools, welfare provision, political advocacy, and so on. A harsh opposition between enlightenment values and religious faith is presupposed. Because there is a wall of separation between them on the level of what holds a democratic society together, a unity that religion always threatens to disrupt, the secular state goes on a rampage and gobbles up society so that it, too, might be thoroughly secularized. That, at least, is the dream outcome for ardent separationists. For some reason, members of the school of liberal analysis that push this sort of things, folks who can get misty-eyed at any mention of the "marginalized" or "subaltern groups", turn terminator and chomp at the bit with ferocious enthusiasm at the prospect of shutting up "religious people." The bright line separating church and state must now extend to religion and politics generally. Religion, cut off from any supply lines, goes on life support and eventually that Julius Huxley dream will be fulfilled: religion will have been, first, privatized and then 'disappeared.'

To be sure, the Supreme Court may, in Agostini v. Felton (June 23, 1997) have signaled a mild turning away from such holdings as the one that prompted the challenge and which dictated that federally funded programs providing supplemental remedial instruction to disadvantaged children could not be administered by "sectarian schools" without violating the establishment clause. This had led, in practice, to the spectacle of mobile units perched outside parochial and other religious schools as children, even children with severe disabilities, in weather fair or foul, were removed from their school buildings and taken to these units in order to receive instruction. The Court (5-4) no longer believes that the mere physical placement of public employees on parochial school grounds "inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion."

Still and all, the general drive along the constitutional track is not limited to decisions made by courts. What has emerged as a hallmark of liberal political philosophy is a position I shall tag liberal monism, by which I mean the view that all institutions internal to a democratic society must conform to a single authority principle (one person, one vote, or some such); a single standard of what counts as reason and deliberation (here Mill and later Millians); and a single vocabulary of political discussion (John Rawls). Democracy is defined in such a way that religion must be kept marginalized. Reason is defined in such a way that faith is discounted as something else, whether irrationalism or a peculiar atavism, or a form of private solace that must be kept utterly privatized. Those who adhere to this position, or a version of it, begin with the menace of establishment or the spectre of advancing hordes of priests and televangelists as backdrop. Then they go on to construct their bright line forms of defense. This powerful contemporary school, associated with the work of John Rawls but not he alone, holds that when persons religious enter the public sphere they are obliged to do so in a secular civic idiom short of any explicit reference to religious commitment and belief. Christians, Jews, Muslims, as citizens, are not permitted to give reasons for why they favor or oppose a public policy measure, say, in any way that is explicitly religious. If you cannot translate the position into a language proclaimed to be both civic and neutral, you should keep quiet rather than enter public life on illegitimate terms that might threaten America's ostensible working consensus.

Rather than acknowledging and even celebrating religious plurality and diversity, the liberal monist stance repudiates these in any robust sense. In practice, it means that the free exercise clause can be interpreted out of existence as an unfortunate glitch in the totally secular framework the framers actually intended to set up. All this in the name of neutrality, of course, as if a way of life that valued certain aspects and features of the human condition and despised and belittled others were not at work.

There are many straws in the wind, finally, in the matter of liberalism and religion. Surely one of the most fundamental is the view that liberalism requires as absolute principle and relentless practice squeezing the last breath of life out of anything that presents itself as religious in any public way. A more capacious liberalism, one that recognizes that any endorsement of rules and procedures is a substantive one that embraces, even if tacitly, some version of a good life by contrast to some other, and that appreciates that self-governance requires real social locations where people can learn what it means to act and to be acted upon and what membership and responsibility entail—that sort of liberalism would not be driven to and would not support the intolerances of liberal monism. That more capacious liberalism is protective, not destructive, of plurality understanding that pluralism is an empty word unless there are real social institutions and spaces that enable persons to keep alive their own traditions, habits, and preciously held beliefs.

That more general model—one that is within our historic reach—seems to have faded from the scene as claims about what it takes to create social harmony and make citizens embraces more of the coloration of the liberal monist posture. In his last major address before his death in 1996, Joseph Cardinal Bernardin spoke at Georgetown University of the role of religion in American society. He pointed out the incoherence of claiming to respect religious belief but insisting that people keep it to themselves—precisely what a devout person cannot do. For religious faith isn't a private matter; it is constitutive of membership in a particular body-the church, the temple, the mosque, the synagogue. Persons of faith cannot bracket their beliefs when they enter the public square.

In viewing religious belief as a civic peril, we invite irony. We fret about belief that is too ardent but also about the loss of belief in America at present, the loss of democratic faith. If we push too far the notion that, in order to be acceptable public fare, all religious claims and categories must be secularized, we wind up depluralizing our policy and endangering our democracy.

Cardinal Bernardin's reaction to these specific concerns was to insist that the logic of church state separation—"narrow, juridical and institution in character"—not be extended to encompass religion and politics in a democratic civil society. Civil society involves the many networks, institutions, associations and relationships that lie beyond the purview of the state's writ. It is a terrible mistake to carry the logic of church-state separation over into this realm. Were such separation to be fully effected, "we would be a poorer culture and society." To skeptics, Bernardin submitted three ways in which religion has necessarily a public role: in articulating a consistent ethic of life against reckless maniacs like Dr. Kevorkian (as but one example); in contributing to civil society through religiously based institutions in education, health care, family service, and in "direct outreach to the poorest parts of our society," and, finally, in the realm of civil and moral formation as religion teaches service to one's neighbor and a sense of civic stewardship. Real pluralism gives all religious believers the space to be both Catholic and American, Jewish and American, evangelical and American, Muslim and American. Real pluralism is precisely what liberal monism, through relentless privatization, would eliminate. Perhaps the constitutional lawyers will hear the message. Perhaps many already have. But there are forms of the most extreme separationism, going far beyond anything we have thus far seen and aiming precisely to curb free exercise, that are being made at the moment, published in prestigious law journals, awaiting their chance to erupt and to drive, at long last, the stake into the heart of religion one version of liberalism believes should have happened long ago.

Lest anyone think these arguments are exclusively elite contestations with little or no effect on the free-exercising people, the warning must be that many Americans themselves have accepted without a whimper the privatizing of religion as the basis for tolerance, this, remember, by contrast to robust pluralism. The incessant hammering on religion as private has been absorbed as civic gospel truth, perhaps by a wide majority at this juncture. In his recent book, One Nation After All, sociologist Alan Wolfe surveys the attitudes of middle class Americans from different regions of the country. And he wonders if what is being displayed really counts as "tolerance" although he doesn't suggest an alternative. Because what Wolfe's middle-class respondents simply assume is that religion is a private matter to be discussed only reluctantly.

What is disquieting about the words of many of Wolfe's respondents is the undercurrent of brittle fearfulness—fearfulness of the open expression of serious disagreement and religious difference. The general view goes like this: If I am quiet about what I believe and everybody else is quiet about what he or she believes, then nobody interferes with the rights of anybody else. But this is precisely what real believers, whether political or religious or both, cannot do: keep quiet. Whether believers in Martin Luther King's "beloved community" or in fighting economic inequality on justice grounds or in opposing the current abortion regime or capital punishment. To tell religious believers to keep quiet else they will interfere with my rights by definition simply by speaking out is an intolerant idea. It is, in effect, to tell folks they cannot really believe what they believe or be who they are.

The grand liberal meta-narrative of the terrible and ever present danger posed to liberalism by religion has worked. Beneath every expression of religious differences lies lurking, if we believe Wolfe's respondents, a fear of religious intolerance and even religious warfare. So Wolfe's middle-classers are disturbed when religion is taken out of the public sphere. But a private religion, as they surely know, makes no sense. One must have public expression of a faith in order for it to be faith. That is, religion either expresses itself in social, communal, public meetings, rules, symbols or strives for such modes of expression in situations where these are forbidden. To a good many of the middle classers in Wolfe's book, who have not read John Rawls, public expression of religious beliefs or religiously-based argument is already crossing a line and somehow "forcing" something on somebody else.

Consider the remarks of 'Jody Fields', one of Wolfe's respondents: "If you are a Hindu and you grew up being a Hindu, keep it to yourself. Don't impose your religion, and don't make me feel bad because I do this and you do this." I submit that this isn't tolerance at all but, rather, an intolerance of religious pluralism. If one changes Hindu to Jew in the comment that becomes clearer. Telling a Hindu to hide being Hindu is scarcely a picture of liberal pluralism. There are others in Wolfe's study who do venture toward robust tolerance because they endorse robust public expression of religious belief. They want to learn more about "what Muslims do," so "don't wipe out culture, add to it." Religious freedom by no means requires privatization of such a thorough-going nature that it is intolerable for religion to present any public face to the world. But, over all, Wolfe's work suggests that the continuing privatization of religion within our constitutional law has helped to fuel and solidify a privatization within the culture. Religion becomes one of the things it is best not to talk about.

Stephen Carter, in his recent book, The Dissent of the Governed, reflects on the trends here noted. His primary target is the courts and the ways in which any notion of disobedience to court degrees has come to seem unAmerican. Part of the reason for this is that, in Carter's view, the secular liberals who dominate law find it almost impossible to imagine that " there are people to whom faith is more important than particular political ends." The upshot is the alienation of tens of millions of voters. They haven't gone easily into that privatized silence. They are angry and feel as if they are somehow unwelcome in America. What Carter calls "liberal constitutionalism" and I call "liberal monism" has played a huge role in presuming that America could and should create a nation-wide "single community" with "enforceable understandings" of how everything is to be organized. Families, as a result, have been stripped of religious freedom in many concrete ways, including freedom to educate their children in a faith tradition. Here so many costly barriers are placed in the pathways of parents, most acquiesce and send their children to state schools.

"Tolerance," Carter reminds us, "is not simply a willingness to listen to what others have to say. It is also a resistance to the quick use of state power—the exclusive prerogative of violent force, remember—to force dissenters and the different to conform." Carter points to chapter and verse in pro-life protest and the ways in which attempts to quash this form of public advocacy have proceeded apace with the blessing of the courts. By setting up as paradigmatic the view that the nation must be morally more or less the same, plurality is denied and community autonomy is eroded by force of law. All of this going back to the notion, monistic at base, that a human being cannot serve simultaneously two masters or handle two complex and at times, perhaps, conflicting sets of claims. This view gives democratic citizens little credit at all and it equates democracy with one strand of liberalism, the strand that has most assiduously pushed for acceptance of the view that it and it alone is a neutral position, permitting all others to flourish, when it is,in fact, a highly ideological position that compels others to shut up or disappear.

With law professors arguing we need more, not less, government regulation of sectarian bodies as the presence of religion in public expression is anomalous in any case; and some feminist jurisprudentialists insisting that every single institution in American society should be compelled legally to conform to standard liberal modes of representation and legitimation in their internal organization (all associations must look alike and spout analogous forms of administration), it is perhaps not too much to fret about a future moment in which authentic religious toleration, dependent on robust pluralism, is a thing of the past. Behold the spectacle! As Orthodox Jews are compelled to give up the external insignia of their faith. As Catholic hospitals and doctors are forced to perform abortions on pain of punitive measures and the Catholic Church, additionally, not in its time (which is not liberalism's time) but in a court's time is forced to ordain women priests; as all Christian schools and academies are force fed some national agenda from which none is permitted to waver. Behold, then, the loss of free exercise as genuine liberty is forlorn, conformity prevails; Rousseau wins. At that point we would be in a world different from the one we now inhabit in the thorough-goingness of it all. America would no longer be a liberal democracy but, rather, a betrayer of liberalism's most capacious premises and promises.

© 2000 The Becket Fund for Religious Liberty
all rights reserved

This paper was presented at a conference entitled "Religious Liberty and the Ideology of the State," in Prague, Czech Republic, in August, 2000. It will be edited for publication. Do not quote without written permission of The Becket Fund.