How Free Can Religion Be?

Religion in America

Religion in America “The life of the law,” said Justice Oliver Wendell Holmes, “is experience, not logic.” With the Constitution of the United States, it is the Supreme Court that gives life to the law. Accordingly, this book is not just an inquiry into the meaning of religious liberty. It is also a study of the Supreme Court of the United States.Vague and evocative at best,the religion guarantees of nonestablishment and freedom of exercise represent the Supreme Court’s, not the Constitution’s, idea of religious liberty. The Supreme Court, it is often said, must base its decisions on principle— on the logic and reason of the history and text and purposes of the Constitution . To fail to do so is to fail to exercise its power properly and within necessary limits. The Supreme Court is an unelected and frankly elite body blessed with life tenure and thus insulated from the political branches. Compromise, expediency, and public passion belong in the legislative and executive halls, not in the marble palace that is the Supreme Court building. There, in the Court’s house, reason and logic, publicly revealed in opinions, must reign. In its unfolding religion jurisprudence the Supreme Court has been largely true to this commitment to logic and reason. It has also, and more recently, been deeply divided.Yet the deep divisions have largely focused on competing ideas of the text’s meaning, its history, and its purposes—competing ideas, it should be said, that are each equally tenable, given the uncertainties and apparent inconsistencies in the First Amendment’s language: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Logic and reason, in other words, have generally marked the Court’s decisions ,though they have competed at a fundamental level.Is the separation of 10.conc.273-280_Bezanson 4/12/06 12:28 PM Page 273 the secular and the religious, of the realms of reason and faith, of church and state,the primary of the two religion guarantees? Is this because without strict separation, religion cannot be independent, answerable only to its God, and thus the individual’s freedom to pursue his or her religious convictions would be but a hollow promise? Or is the individual’s liberty to exercise his or her religion the primary of the two guarantees? Is this because freedom in America exists at the individual, not the institutional (church, for example), level? Churches are, after all, but a collection of like-minded individuals, and without the energy of individual acts of religious conscience, churches would ossify and ultimately expire.Can individual liberty on matters of religion flourish in an environment when the state can discriminate against an individual’s religious ideas and actions,denying them an equal place in the secular order? These, at base, are the two competing and principled visions of religious liberty in America that are now vying for dominance among the Justices of the Supreme Court. They are fundamentally conflicting visions: one focusing on the institutions of religion (church versus state), the other focusing on the individual (freedom of conscience in religious belief and exercise). Given that these views arise from conflicting core premises, they cannot easily be reconciled—at least not in logic or reason or principle. This is why Chief Justice Rehnquist observed at the beginning of his opinion in the Davey case that the religion clauses are “frequently in tension.” Holmes’s assertion that experience, not logic, is the life of the law is not a rejection of principle and reason as necessary justifications for, and limits on, the exercise of nondemocratic judicial power. It is instead an observation on the limits of logic. Logic, unrestrained, has a certain hydraulic power about it, a power that drives inevitably to the absurd. We experience this in our daily lives. Discrimination is unequal and bad, but not grades in school or higher pay for better work. The country’s foreign policy should be governed by principles of freedom and equality and democracy, but not in our dealings with OPEC countries or our trade with China. It could be argued that when principles and logic approach their tolerable limits—when they threaten, if extended further, to produce absurd results— the Supreme Court should step aside and leave the rest of the problem to the elected, political branches. Justice Scalia’s opinion in Smith, the peyote case, can be seen as doing just that by foreclosing judicially...