Turning the First Amendment On Its Head

The argument is that religious freedom is itself an achievement of religious freedom. Then too, protecting the rights of those with whom we disagree is in the self-interest of all. On most controverted issues in our public life, there is no stable majority, only ever shifting convergences and divergences, ever changing coalitions and counter-coalitions.

Non-Christians, and secular Jews in particular, sometimes see an ominous majoritarian threat in the fact that nearly 90 percent of the American people claim to be Christians of one sort or another. As a matter of practical fact, however, that great majority is sharply divided along myriad lines when it comes to how civil government should be rightly ordered. Furthermore, a growing number of Christians, perhaps most Christians, have a religiously grounded understanding of the respect that is owed living Judaism. Those Christians who argue that “Christian America” should be reconstructed in conformity with a revealed biblical blueprint for civil government are few and marginal, and are likely to remain so.

Fr. John Courtney Murray, author of We Hold These Truths and a champion of religious freedom at the Second Vatican Council, observed that, while in theory politics should be unified by revealed truth, “it seems that pluralism is written into the script of history.” I would go further and suggest that it is God who has done the writing.

Pluralism is our continuing condition and our moral imperative until the End Time, when, as Christians believe, our disagreements will be resolved in the coming of the kingdom. The protection against raw majoritarianism depends upon this constitutional order. But this constitutional order depends, in turn, upon the continuing ratification of the majority who are “we the people.” Among the truths these people hold is the truth that it is necessary to protect those who do not hold those truths.

It is a remarkable circumstance, this American circumstance. It is also fragile. We may wish that Lincoln was wrong when he observed that “In this age, and this country, public sentiment is everything.” But he was right, and in the conflict over slavery he was to see public sentiment, both among the abolitionists and the slave owners, turn against the constitutional order and nearly bring it to irretrievable ruin. We are dangerously deceived if we think that Lincoln’s observation about our radical dependence upon public sentiment is less true today.

The question of religious freedom, then, is not¯at least not the first instance¯about church-state relations. As a matter of historical fact, very few of the controverted questions coming before the courts that are described in terms of church-state relations have to do with the relationship between government and churches. The question is the access, indeed the full and unencumbered participation, of men and women, of citizens, who bring their opinions, sentiments, convictions, prejudices, visions, and communal traditions of moral discernment to bear on our public deliberation of how we ought to order our life together in this experiment that aspires toward representative democracy. It is, of course, an aspiration always imperfectly realized.

The question is also and very importantly a question of the First Amendment, and of the first liberty of that First Amendment, namely the free exercise of religion. The first thing to be said about that first liberty is that liberty is the end, the goal, and the entire rationale of what the First Amendment says about religion. This means that there is no conflict, no tension, no required “balancing” between free exercise and no-establishment. Although lawyers and courts routinely speak of the two religion clauses of the First Amendment, there is but one religion clause. The stipulation is that “Congress shall make no law,” and the rest of the clause consists of participial modifiers explaining what kind of law Congress shall not make. To point out that there is only one clause containing two provisions may seem like a small grammatical point, but it has far-reaching significance.

The no-establishment provision of the religion clause is entirely and without remainder in the service of free exercise. Free exercise is the end; no-establishment is a necessary means to that end. No-establishment simply makes no sense on its own. Why on earth should we need a no-establishment provision? Apart from the federal government’s promise that it will not interfere with religious establishments in the states, the answer is that no-establishment is required to protect the rights of those who might dissent from whatever religion is established.

In other words, no-establishment is required for free exercise. It is, one may suggest, more than a nice play on words that Mr. Jefferson’s bill of 1779 was called the “Bill for Establishing Religious Freedom.” The purpose of the non-establishment of religion is to establish religious freedom. It follows that any interpretation of no-establishment that hinders free exercise is a misinterpretation of no-establishment.

In recent history, especially in the last four decades, the priority of free exercise has been dangerously obscured. Indeed, one must go further. The two parts of the religion clause have been quite thoroughly inverted. One gets the distinct impression from some constitutional scholars and, all too often, from the courts that no-establishment is the end to which free exercise is something of a nuisance. To take but one prominent example, Laurence Tribe writes in his widely used American Constitutional Law that there is a “zone which the free exercise clause carves out of the establishment clause for permissible accommodation of religious interests. This carved-out area might be characterized as the zone of permissible accommodation.”

There we have the inversion clearly and succinctly stated. Prof. Tribe allows¯almost reluctantly, it seems¯that, within carefully prescribed limits, the means that is no-establishment might permissibly accommodate the end that is free exercise. This is astonishing, and it is the more astonishing that it no longer astonishes, for Prof. Tribe is hardly alone. Scholars and judges have in these few decades become accustomed to having the religion clause turned on its head. There are some heartening signs today that constitutional scholars and judges are newly attentive to the truth that no-establishment is in the service of free exercise, and to that I will return in a later reflection.

Richard John Neuhaus is editor in chief of First Things .