Liberty is the right to do whatever the law permits. -- Charles Louis Montesquieu
When people are free to de as they please, they usually imitate each other. -- Eric Hoffer
THE FIRST AMENDMENT'S guarantee of religious freedom is, like all freedoms, not unlimited. Just as one cannot speak without a reasonable fear of prosecution if such speech incites violence or slanders another person, so too one cannot practice ritual sacrifice without the same fear if such action is performed on another human being, even if that ritual is firmly rooted in the practices of a religious tradition. This much is generally without controversy. More problematic, however, is the realization that, because of a history of pressures exerted by the dominant religious culture in America, there have developed very real limitations on how religious communities have expressed their religious differences. The result is not only that there has existed a more limited expression of religious freedom than we might like to think, but also that this limitation has forced on religious minority communities a dilemma of theological proportions, requiring them to choose between the dictates of their own consciences and the mandates of American society as expressed through its laws and legal institutions.
To make matters more complex, as this country has become more religiously diverse, the religious presuppositions of its legal institutions (or what I call the "American constitutional order" (1)) have shifted. Where they were once, almost identical to Protestant Christianity, increasingly over the past one hundred and fifty years--but most noticeably over the last fifty years--they have become more clearly identified as an independent civil religion of the state unto itself. This religion, in which the particular religious identification of any specific citizen or group of citizens is inconsequential, is based on the temporal and spatial authority of the state, and as long as these elements are protected and respected, minority religious communities are free to practice as their religious consciences dictate.
Although this might not seem to be the worst solution in a democracy founded on the notion of religious freedom and defined by diversity, we must examine this pattern if we are to understand why different minority religious communities have fared differently over the years when they have encountered the authority of the constitutional order. Taking as our starting point three of the more representative religious communities with histories of encounter (Mormons, Jehovah's Witnesses, and Native Americans in their capacity as practitioners of traditional religions), we can theorize how minority religions have such different experiences when choosing between wanting to be free to practice according to the dictates of their faith community, and wanting to be fully vested members of the American experiment. As we will see, the results of an encounter between a minority religion and the American constitutional order depend as much on when that encounter takes place as they do on the demands made by the community and how those demands are interpreted.
In the end, we realize that yes, all liberties come with responsibilities, but those responsibilities are borne not only by the person wishing to exercise that liberty, but also by the society guaranteeing it. And while there is probably no way to exclude the implicit pressures exerted by the dominant culture, there is great peril in not seeing that those limitations exist--or in living as if they did not.
The "Secularizing" of the Law?
The first step in uncovering what we might call the inconspicuous limitations on religious liberty is to trace the transformation of the American constitutional order from an institution grounded in Protestant religio-cultural presuppositions to one governed by its own ideology of power. …