Huston: Religious Liberty and the Public Peace

January 20, 2014

(For the use of the membership only.)

by Tom Charles Huston

A few weeks before the delegates to the Continental Congress resolved for independence, the Fifth Virginia Convention meeting in Williamsburg adopted a Declaration of Rights drafted in large part by George Mason. It was one of a number of pre-Revolutionary documents marking the advance of liberty in the American colonies, the Virginia Declaration incorporated the following: Lockean natural-rights theory; English common law and constitutional precedent; Montesquieu’s institutional preferences; and colonial tradition and practice.

The Declaration of Rights was a seriatim statement of the origins of civil society and the rights and duties that arise therefrom. Among rights it asserted is religious liberty, expressed in language thought to reflect the influence of James Madison, as in its Section 16:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.

The subtle, well-crafted language employed here demands close reading. While a state church subsidized by taxes is clearly deemed incompatible with religious liberty, there is no license here for the irreligious: by the terms of Section 16, religious liberty is for believers. This reflects the influence of non-Anglican denominations such as the Methodists and Baptists who were disadvantaged by the establishment of the Church of England. The deal here is not that the citizens of Virginia have the right to have no religion as a matter of conscience, but that they have the right (and hence the obligation) to exercise the religion of their choice and, in doing so, to practice toward one another Christian virtues. The concern of the Convention is not tolerance of heresy, but peace in the community. Differences among religious communities over status or doctrine must not be disruptive of the commonweal.

What the convention said is not incompatible with the subsequent Statute for Religious Freedom drafted by Thomas Jefferson and adopted by the Virginia General Assembly in 1786. Although Jefferson contributed a lengthy, lofty and oft-mentioned introduction to the statute which causes the hearts of civil libertarians to go pit-a-pat, the meat of the statute is this single sentence: “No man shall be compelled to frequent or support any religious worship place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.”

The Statute for Religious Freedom for all its fame does nothing more than enact in statutory form the implied principles of non-establishment and free exercise expressed in Section 16 of the Declaration of Rights. What it does not do (all of Jefferson’s rhetorical heavy lifting notwithstanding) is drive religion out of the public square or build a wall of separation between church and state. It does not say that majorities are prohibited from incorporating in positive law moral norms rooted in religious teaching, practice or tradition. It short, it does not change in any way the bottom line of Section 16: in a society whose government does not impose religious disqualifications or advantage a particular denomination, the faithful may exercise their religious rights and duties and conduct their religious practices in whatever ways they prefer at whatever places they choose so long as in doing so they do not disrupt the public peace (that is, give rise to “force or violence”).

Although the official literature doesn’t say so, by the 1820s the deal reflected in Section 16 (what you might call the “Just Get Along Deal”) had pretty much come to be accepted as the standard deal throughout the country. Official churches had been disestablished, religious disabilities abolished and religious tests for public office eliminated (de jure, if not de facto). Yet, the uncomfortable truth is that until well into the 20th century most people weren’t much concerned about liberty from religion, and an awful lot of people weren’t much concerned about the religious liberty of Roman Catholics, Jews or Mormons. Indeed, at many times and in many places there was less religious toleration in the 19th and early 20th centuries than there had been in the post-Revolutionary and early Federal periods.

A massive wave of immigration from Ireland in the 1840s and from southern and central Europe between 1880 and 1910 introduced a large Roman Catholic population into the great American melting pot. The late 19th century wave also included large numbers of Jews from eastern Europe. These newly arrived groups tended to self-segregate (not always by choice), were heavily concentrated in urban areas, and within their communities were generally unmolested in the exercise of their religious practices.

In those communities in which Protestants, Catholics, Jews or Mormons predominated, they tended to disregard any distinction between public and private practices or spaces. Religious holidays were public holidays. Religious symbols spread beyond the church yard, and religious ceremonies and practices were incorporated into public rituals and proceedings. Non-believers and denominational minorities tended to leave well enough alone, perhaps muttering under their breath but not making any sort of public fuss. The Just Get Along Deal prevailed even among those who were never parties to it.

Although no one thought of it this way, the Just Get Along Deal was rooted in and dependent on demographics. It was a deal that worked in communities that adhered to a public orthodoxy that privileged the exercise of the religion shared by a majority and tolerated the religious practices of the minority. It was not a deal for free-thinkers, doubters, atheists or people otherwise unbound by religious tradition. As they became more numerous and more influential, these people became less willing to just get along on the terms demanded of them. First the Jehovah’s Witnesses refused for religious reasons to pledge allegiance to the flag, then other folks objected to school prayer, crèches in public spaces and crosses on public land. Once the ball got rolling and as the federal courts goosed it along at accelerating speeds, it became increasingly difficult to keep the deal and still maintain the public peace.

It is not unreasonable for traditionalists to believe that the courts have gone too far in rejecting the deal that our revolutionary forefathers made, to believe that there is more flexibility inherent in the original deal, more room for accommodation and adjustment, than the courts have recognized or, at least, have been willing to admit. But, to change metaphors, the train has long since left the station on a one-way track, and the faithful who choose to stand astride the tracks and yell “stop” are bound to get run over. Perhaps an admonition to the engineer to slow the train down a bit will have occasional good effect but you can’t pile up enough bodies to stop it.

Those who originally subscribed to the Just Get Along Deal had in mind preserving the peace among a religious people of many denominations and sects. They had no reason to give attention to the potentially disruptive effects of the claim to a community-recognized right of amorality. It would have never occurred to those who framed their arguments in the language of natural rights and the common law, who thought in terms of Christian virtues, to take seriously the notion that morality rooted in revelation or reason was an illegitimate source of law-making. What Justice Antonin Scalia refers to as the Supreme Court’s “famed sweet-mystery-of-life passage” in Planned Parenthood v. Casey (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) would simply be incomprehensible to Mason, Madison or Jefferson. They would have shared Justice Scalia’s oft-stated view that the Constitution does not forbid the government to enforce traditional moral and sexual norms. Old John Adams, of course, would have gone much further: wrote he, “[I]t is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”

Those who seek to enthrone private moral choice in public social policy believe that a moral society can survive amoral law-making. History counsels otherwise. A culture of self-definition is inevitably amoral at best: self-indulgent, self-centered and incapable of sacrifice. Individualized morality unsanctioned by law and untethered from tradition lacks sustaining power. At the end of the day it is no morality at all.

Institutionalized amorality is not part of any deal made by the American people, and it is incompatible with the American tradition. It may currently have traction, but it has no historic roots. As Americans we have a heritage of establishing and sustaining moral and social norms through discussion and consensus. There is no good reason to repudiate this heritage and start anew.

Tom Charles Huston, A.B., J.D., an adjunct scholar of the Indiana Policy Review Foundation living in Indianapolis, is retired from the private practice of law. He served as an officer in the United States Army assigned to the Defense Intelligence Agency and as associate counsel to the president of the United States.


Copyright © 2014 by Tom Charles Huston

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