Mild and Equitable Establishments

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier ­National Park. And, of course, for “Big Mountain Jesus.”

Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be ­reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”

The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of ­Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” and—because “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”—the statue does not “endorse” Christianity.

In the American context, the question whether a “liberal society” can “favor one religion over the others” arises not so much with respect to the distribution of tangible privileges, pains, and penalties, but instead in the context of disputes—some silly, some less so—about symbols, monuments, memorials, holidays, proclamations, and displays: Nativity scenes, menorahs, Mission-depicting city seals, the Pledge of Allegiance, high-school holiday pageants, and statues of Quetzalcoatl. The Supreme Court’s precedents permit governments and officials to “acknowledge” religious events, traditions, and influences; to cooperate with religious organizations in “secular” projects; to accommodate religious beliefs and obligations through exemptions and other means; and to indulge occasionally in bits of ceremonial deism (or what Robert Bellah called “American Shinto”), provided they are (in some sense) “neutral” among religions and denominations and between “religion and non-religion.”

In other political communities, however—­communities whose cultures and regimes can, for present purposes, be broadly described as “­liberal”—some religions are “favor[ed] (or disfavored) over the others.” The United Kingdom has an established church, Swiss voters opted in 2009 to ban the construction of new minarets, and Bavaria’s regional government recently ordered crosses to be displayed at the ­entrances of government buildings to reflect the state’s “­cultural identity and Christian-Western ­influence.” Argentina’s Constitution states that ­“the Federal Government supports the Roman Catholic Apostolic Religion,” while Israel’s Basic Law defines the nature and character of the State of Israel as “Jewish and democratic.”

There is a story about a man who was asked by his pastor if he believed in infant baptism. He replied, “Believe in it? Hell, I’ve seen it done!” Maybe something similar is all that needs to be said in ­response to the question whether liberal societies may favor particular religions. And yet, in the present moment, when the nature and future of liberalism are being re-­examined, and when the status of religious practices and institutions in society is changing rapidly, it seems that more than a quip is called for.

First, it is not the case that political morality necessarily requires that societies—or political authorities or states—be liberal, or liberal in the same way. There have been, are, and will be some political communities that probably don’t count as liberal but still protect the well-being of persons, promote their flourishing, and observe the constraints that political morality imposes. To ask, then, whether a liberal society can favor one religion over the others is not simply to ask whether political morality permits (or requires) such favoring. I am inclined to think that at least some of the various features of liberal regimes and societies are morally required, but again, perhaps not all are.

Next, there is the related point that not every institution, association, or enterprise within a liberal society—or, that is governed by a liberal political authority—needs to be liberal. Quite the contrary: The political authority in a liberal society must not only tolerate, but also affirm and support natural and social elements that are themselves not liberal. The ontology of a liberal society need not be liberal “all the way down.” And so, whatever the answer is to the question whether a liberal order can prefer one religion over the others, it should be clear that such an order can, does, and should include societies that can, do, and should.

Third, it should be acknowledged that some ostensibly liberal societies and regimes do favor one religion over others: namely, a religion of liberalism. Indeed, to use the word “favor” might be to put things too delicately or to undersell the enterprise of muscular, evangelizing, “progressive” liberalism. While litigants have attempted and failed to convince American judges to label the secular humanism proposed (or imposed) in public schools as a religion, it does seem right to say that, at least in some of its manifestations, “liberalism has a sacramental character.”

That’s how Adrian Vermeule put it in a review of Ryszard Legutko’s The Demon in Democracy in the January 2017 edition of First Things. Vermeule proceeded to quote Legutko:

The liberal-democratic mind, just as the mind of any true communist, feels an inner compulsion to manifest its pious loyalty to the doctrine. Public life is full of mandatory rituals in which every politician, artist, writer, celebrity, teacher or any public figure is willing to participate, all to prove that their liberal-democratic creed springs spontaneously from the depths of their hearts.

Vermeule sees the Festival of Reason of 1793, which placed a Goddess of Reason inside Notre-Dame in Paris, as the model of contemporary liberalism’s “liturgy.” He also warns that the festival inevitably demonizes its opponents and that we should expect today’s liberalism to do the same. I continue to believe that a liberal regime need not assume a Jacobin form with sacramental and liturgical pretenses. Still, Vermeule’s diagnosis applies to some features of at least some versions of liberalism. His seems a fair response to those who maintain that a society’s liberal character rules out all religious predilections.

So, what is a “liberal society”? It is necessary, first, to distinguish between the various natural and other societies that compose human political communities and those communities themselves. We must also separate civil society—that is, the “middle space”—from the political authority, the regime, or the state. I am not sure it makes sense to characterize non-state societies as “liberal” (or to worry if they are not), though it is very common to do so. Civil society, too, is something a liberal political order protects and respects. The question is whether a liberal regime can favor one religion over others. I understand the question before us to be about state action.

What makes a political authority, regime, or state liberal? In the words of William Galston, liberalism is about “recognizing and protecting a sphere beyond the rightful reach of government in which ­individuals”—and I would add natural and other associations and societies —“can enjoy independence and privacy.” Galston supplements this core idea with three others: the “republican principle” or popular sovereignty, that is, the idea that “the people” are the source of political legitimacy; “­democracy,” which involves both formal political and civil equality and constrained majoritarianism; and “constitutionalism,” which “denotes a basic, enduring structure of formal institutional power,” a structure in which political power is granted, distributed, and constrained by entrenched and enforceable rights as well as other mechanisms.

Such a regime need not be Jacobin, comprehensive, redemptive, sacramental, eschatological, crusading, thick, ambitious, or even particularly optimistic. It cannot be entirely neutral, but it can be cautious, historically aware, chastened, and humble. It should be clear-eyed, Schumpeterian, and MacIntyrian about its vulnerability and contradictions, and about its dependence on virtues, practices, and traditions that it cannot create or maintain by itself. It is pluralistic in that it tolerates different views about the good life and respects the exercise of the authority that rightfully belongs to non-state actors and societies. It is not jealous of society’s little platoons and it is resigned to the persistence of humanity’s crooked timber.

It seems, then, that at least some liberal political communities may favor one religion, even if not all should. Indeed, the 1965 Declaration on Religious Freedom, issued at the close of the Second Vatican Council, proposes a sound way to approach our question and to craft an answer. As I read the document, a Declaration-inspired response would unfold in five steps. First, God has made known truths about himself and about the nature and destiny of human persons. We are obligated to “seek the truth . . . and to embrace the truth [we] come to know, and to hold fast to it.” That is, it is the case that the human person is homo religiosus.

Next comes another anthropological observation: Because of the “very nature” of persons and their “dignity as persons—that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility”—the “human person has a right to religious freedom,” a human right that “is to be recognized in the constitutional law whereby ­society is governed.” This right, again, is grounded in human nature and also serves the “moral obligation[s] to seek the truth,” to “adhere to the truth, once it is known,” and to “order [our] whole lives in accord with the demands of truth.” The freedom of religion, then, is justified in terms of who we really are, and what we’re really for, not in terms of political convenience, benefit, or necessity. It is a pre-political possession, and not a state-granted concession.

Third, this moral anthropology implies that “all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.” Religious freedom includes the free exercise of religion, both by persons as individuals and when they “act in community”—“Religious communities are a requirement of the social nature both of man and of religion itself” —“provided that just public order be observed.”

So far, this might strike a contemporary reader or American lawyer as pretty conventional stuff and as consonant with at least some liberal accounts of state authority, freedom of conscience, and the common good. The next two steps, though, might raise a few First Amendment eyebrows. They rub against popular understandings of church-state “separation.” Step four charges governments not merely with “neutrality” in a “religion blind” sense or with the distance of a night watchman. Instead, they are to take proactive and positive care of those “conditions of social life under which men enjoy the possibility of achieving their own perfection in a certain fullness of measure and also with some relative ease.” Because, the Declaration continues,

protection and promotion of the inviolable rights of [the person] ranks among the essential duties of government[,] . . . government is to assume the safeguard of the religious freedom of all its citizens, in an effective manner, by just laws and by other appropriate means. Government is also to help create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their religious rights and to fulfill their religious duties.

Although it would “clearly transgress the limits set to [government’s] power, were it to presume to command or inhibit acts that are religious,” still, government “ought indeed to take account of the religious life of the citizenry and show it favor.”

Constitutional law in the United States can pretty easily take on the Declaration’s statements about the foundations of religious freedom and the objective dignity of the human person. This fourth move, though, with its calls for “creating conditions” and “showing favor” might strike liberals as an atavistic call for throne-and-altar arrangements or an anachronistic embrace of cura religionis, which makes it the business, and indeed the duty, of civil authorities to look after the true faith.

It is neither. I admit that there does seem to be a dissonance between this fourth claim and the position of the Supreme Court of the United States regarding the First Amendment to the Constitution. James Madison famously insisted that religion is “wholly exempt from [the] cognizance” of government and that government attempts to support it result in “perversion” and corruption. The Court’s so-called “Lemon test” requires that all state actions have a “secular purpose,” that public policies not “advance” or “inhibit” religion, and that laws and regulations not excessively “entangle” government and religion. To these requirements has been added a prohibition against “endorsing” religion or making “adherence to a religion relevant in any way to a person’s standing in the political community.” The First Amendment is often said to demand “wholesome” and “benevolent,” but still “strict,” neutrality.

Yet the United States’ liberal religious liberty regime (correctly understood) aims to be neutral with respect to the truth of (most) religious claims precisely because it is not neutral—it does not aim to be neutral and it should not be neutral—regarding the good of religious freedom. The protection and promotion of religious freedom counts, for constitutional purposes, as a “secular purpose.” The Constitution permits, and in fact welcomes, efforts by political authorities to improve the landscape of religious freedom and to allow people and institutions to exercise their religion freely. Religious freedom is not simply a mechanism for conflict avoidance or division dampening. It is a valuable and necessary feature of any attractive legal regime because it reflects and promotes human flourishing. So yes, the political authority should remain neutral with respect to (most) religious questions, primarily because the resolution of such questions, assuming for now that they can be identified, is outside the jurisdiction of civil authorities. But it may and should affirm that religious freedom is a good thing and is worth protecting and nurturing through law and policy.

This view departs from the longstanding position that the secular authority was charged by God with the direct care of true religion itself. For a long time, it was the sacred obligation of the secular authority to “defend the faith,” even as it respected the ­appropriate domain and independence of religious authorities. This way of thinking has been excluded from most liberal understandings of political authority, although many scholars and commentators have, in recent years, challenged this banishment. Still, as I understand the Declaration, government’s function with respect to religion is, in John Courtney ­Murray’s words, “confined to a care of the free exercise of religion within society—a care therefore of the freedom of the Church and of the freedom of the human person in religious affairs.” As Russell Hittinger has put it, cura religionis has become “cura iuris ad libertatem religiosam.” This task is secular because “freedom in society . . . [is] a secular value—the sort of value that government can protect and foster by the instrument of law.” The Declaration’s call to “­create conditions” and “show favor”—to take care of what I have called elsewhere the “infrastructure” of religious freedom—is not neutral toward religion. It is, however, consistent with what Pope Emeritus ­Benedict XVI and others have described as “healthy” or “positive” secularity.

The first four steps of a Declaration-­inspired response to the question presented have not really answered the question, “can a liberal [state] favor one religion over the others?” They do suggest, though, that a political community that is “liberal” in the way I am using the term may acknowledge that human persons are made and obligated to search without official coercion or interference for religious truth, to cling to it, and to act in accord with it. It may favor this search and these actions—by individual persons, by religious communities and associations, by the Church—and it should nurture the conditions that this search requires. Contrary to the formulations in some Supreme Court opinions, a liberal state does not need to be entirely neutral between religion and “non-religion” (whatever that is).

So, the fifth and final step: The Declaration states, almost in passing, that “peculiar circumstances obtaining among peoples” may warrant affording “special civil recognition . . . to one religious community in the constitutional order of society.” But this is followed by a firm insistence that it is “imperative that the right of all citizens and religious communities to religious freedom . . . be recognized and made effective in practice,” that “equality of citizens before the law . . . is never violated, whether openly or covertly, for religious reasons,” and that there be no “discrimination among citizens.” What John Adams might have called “mild and equitable establishments of religion” are, it appears, permissible, though not required, and not necessarily prudent, all things considered. Such “special civil recognition,” in other words, may not take the form of coercive, conscience-infringing mandates or of discriminatory disabilities. At the same time, it would seem to permit at least some of what the Supreme Court calls (for now) “endorsements” of a religious tradition’s role and contributions.

It does not appear that a regime, state, or political authority—in a political community where the appropriate “peculiar circumstances” obtain—that opted for this kind of “special recognition” while complying with these “imperatives” would, for this reason, cease to be or even become less “liberal.” By doing so, however, it might avoid having to squander judicial and other resources on disputes about the constitutionality of Big Mountain Jesus. 

Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

Photo courtesy of Becket.