A New Order of Religious Freedom

“Oh look, the sun is rising again.” Most of us manage to contain our surprise. As predictable as the rising of the sun is the emergence of religion in our political contests¯and the feigned surprise of much of our political class. Or maybe the surprise is not feigned. For some it is a sustained puzzlement and frustration that history is not turning out the way it was supposed to have. In this view, someone like Gov. Sarah Palin¯combining fervent Christian faith with political moxy and celebrity power¯is an interloper from an earlier America that secularists had long since consigned to the past. But it keeps coming back.

To be sure, religion has also played a big part in Sen. Obama’s campaign. But that’s different. He had to do something about the perception of the Democrats as the anti-religious party. Anyway, he’s black, and it’s understood that blacks are given a pass when, among other things, it comes to religion and politics. Even the rantings of someone like the Rev. Jeremiah Wright must be “contextualized” within the narrative of victimhood. As the senator said before he disowned the Rev. Wright, he could no more disown the Rev. Wright than he could disown the black community. And it’s not as though anybody worries that the urbane former editor of the Harvard Law Review poses a threat to Thomas Jefferson’s “wall of separation” between church and state.

Any time is a good time, but this election is a particularly good time, to review some basics about the free exercise of religion in this American constitutional order

More than he wanted to be remembered for having been president, Mr. Jefferson wanted to be remembered as the author of the Virginia “Bill for Establishing Religious Freedom.” In the text of the bill he underlined this sentence: “The opinions of men are not the object of civil government, nor under its jurisdiction.” In a republic of free citizens, every opinion, every prejudice, every aspiration, every moral argument has access to the public square in which we deliberate the ordering of our life together.

“The opinions of men are not the object of civil government, nor under its jurisdiction.” And yet civil government is ordered by, and derives its legitimacy from, the opinions of the citizenry. Precisely here do we discover the novelty of the American experiment, the unique contribution of what the Founders called this novus ordo seclorum , a new order for the ages. Never before in human history had any government denied itself jurisdiction, whether limited or total, over that on which it entirely depends, the opinion of its people.

That was the point forcefully made by Lincoln in his dispute with Judge Douglas over slavery. Douglas stubbornly held to the Dred Scott decision as the law of the land. Lincoln had the deeper insight into how this republic was designed to work. “In this age, and this country,” Lincoln said, “public sentiment is every thing. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment, goes deeper than he who enacts statutes, or pronounces judicial decisions. He makes possible the inforcement of these, else impossible.”

The question of religion’s place in the public square is not, first of all, a question of First Amendment law. It is first of all a question of understanding the theory and practice of democratic governance. Citizens are the bearers of opinion, including opinion shaped by or espousing religious belief, and citizens have equal access to the public square. In this representative democracy, the state is forbidden to determine which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally ordered and representative process, the people will deliberate and the people will decide.

In a democracy that is free and robust, an opinion is no more disqualified for being religious than for being atheistic, or psychoanalytic, or Marxist, or just plain dumb. There is, or at least there ought to be, no legal or constitutional question about the admission of religion to the public square; there is only a question about the free and equal participation of citizens in our public business. Religion is not a reified thing that threatens to intrude upon our common life. Religion in public is but the public opinion of those citizens who appeal to religion in public.

As with individual citizens, so also with the associations that citizens form to advance their opinions. Religious institutions may understand themselves to be brought into being by God, as the Catholic Church certainly does understand herself, but for the purposes of this democratic polity they are free associations of citizens. As such, they are guaranteed the same access to the public square as are the citizens who comprise them. It matters not at all that their purpose is to advance religion, any more than it matters that other associations would advance the interests of business or labor or radical feminism or animal rights or whatever.

For purposes of democratic theory and practice, it matters not at all whether these religious associations are large or small, whether they reflect the views of a majority or minority, whether we think their opinions bizarre or enlightened. What opinions these associations seek to advance in order to influence our common life is entirely and without remainder the business of citizens who freely adhere to such associations. It is none of the business of the state. Religious associations, like other associations, give corporate expression to the opinions of people and, as Mr. Jefferson said, “the opinions of men are not the object of civil government, nor under its jurisdiction.”

It is to be feared that those who interpret “the separation of church and state” to mean the separation of religion from public life do not understand the theory and practice of democratic governance. Ours is not a secular form of government, if by secular is meant indifference or hostility to opinions that are thought to be religious in nature. The civil government is as secular as are the people from whom it derives its democratic legitimacy. No more, no less. Indeed a case can be made¯and I believe it to be a convincing case¯that the very founding principle that removes opinion from the jurisdiction of the state is itself religious in both historical origin and continuing foundation. Put differently, the inspiration for religious freedom, as of other freedoms, is itself religious.

“We hold these truths,” the Founders declared. And when these truths about the “unalienable rights” with which persons are “endowed by their Creator” are no longer firmly held by the American people and robustly advanced in the public square, this experiment will have come to an end. In that unhappy case, this experiment will have turned out to be not a novus ordo seclorum but a temporary respite from humanity’s penchant for tyranny. Yet it is a longstanding fact that secularized elites in our universities and our courts are embarrassed by the inescapably religious nature of this nation’s founding and subsequent history.

In the next few Friday reflections¯barring current developments that clamor irresistibly for immediate comment¯I propose to examine how our present circumstance came about and how, sometimes for the better and sometimes for the worse, the understanding of “the separation of church and state” is changing today.

Richard John Neuhaus is editor in chief of First Things .