The Enemies of Religious Liberty

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It is common for religious believers to lament the Supreme Court's barely concealed hostility to the free exercise of religion, at least since the middle decades of the twentieth century. But in the long term, even more damage is likely to be done by the influence of ideas advocated by a cluster of political and legal theorists in the academy. For these writers, religious liberty itself is a pernicious idea.

The term "liberalism" in recent political theory has been defined, by John Rawls and others, as both an agreement to abide by constitutional principles that provide access to all citizens ("political" liberalism) and as a particular ideological concept of a free and open society ("comprehensive" liberalism). According to Rawls, the "political" notion of liberalism takes no position on ultimate questions of meaning--and it is the ideal to which contemporary liberals should aspire.

Oddly enough, this formulation seems to harmonize with the argument of the Jesuit theologian John Courtney Murray, according to which belief in religious absolutes can be reconciled with the First Amendment of the Constitution by considering it to be an "article of peace" rather than an "article of faith." In this view, one is not obliged to accept any particular philosophical assumptions but must merely agree to respect the Constitution for the sake of civil harmony. As we shall see, despite Rawls endorsement of this Murrayan ideal, many of the most prominent liberals writing today adopt, whether or not they expicitly say so, a radically comprehensive and even imperial version of liberal ideology.

From the beginning, the American commitment to religious liberty was less than absolute, as the outlawing of Mormon polygamy definitively showed. Religious believers have enjoyed liberty only up to the point where their practices seem to threaten public order. But in the Jehovah's Witness decisions of the 1940s the Supreme Court began significantly to expand the rights of believers, exempting them even from laws considered generally beneficial to society and laying the burden of proof on those who would restrict such liberty.

At the same time that the Court was expanding religious liberty in the 1940s it also began moving away from the assumption, prevalent since the nation's founding, that religion is beneficial to society. After World War II it started invalidating even indirect support that religion receives from government. Justice Felix Frankfurter, fighting a rearguard action against the expansion of religious liberty in the 1940s, demanded that believers relativize their beliefs in order to enjoy the liberty guaranteed by the Constitution, and the Court eventually gave that …