Samuel Johnson commented famously that the significance of a dog walking on its hind legs was not that it was done well but that it was done at all. As we celebrate the fiftieth anniversary of Vatican II, Johnson’s comment might apply to one of the most extraordinary achievements of that council, its "Declaration on Religious Liberty." The church’s embrace of religious freedom caught the attention of the world. For countless people who never read the document, its issuance had a transformative effect. The significance of the Declaration was that it happened. That was radical and had a lasting impact. Much of the actual document produced by the council was anchored in the past and did not anticipate the implications of the Declaration. In pronouncing on religious liberty the bishops were entering a new and to them a largely unfamiliar world.
The council’s proclamation asserted that religious liberty was “inviolable,” pertaining to human dignity to be protected by constitutional limitation. While opening up the church to a radical new vision, the bishops, in their grasp of the working of religious liberty remained to a great extent in the mental world of the past. In that world, government could take account of religious life and show it favor even to the extent of giving “special civil recognition” to a particular religion. The inviolable right could be regulated within "due limits." The assertion that government could not require people to act contrary to conscience or restrain then from acting according to religious belief presumed a world in which the church acted as the conscience of the state. In our religiously diverse society implementing that statement would be a formula for anarchy. There are probably few laws that someone in America does not object to in conscience.
The Declaration has been the subject of little subsequent development. American Catholics tended to assume that they know the meaning of religious liberty and that the church is now in harmony with American thinking. So the problem has been solved. However, the Declaration came at a time when the understanding of American religious liberty was degenerating into chaos.
The Courts and the Establishment Clause
In 1947 the Supreme Court in its Everson decision that applied the First Amendment to the states made two assertions that have confused the understanding of American religious liberty. The Court decided that the standard for evaluating laws under the First Amendment would be whether they aided religion and that the “establishment clause” created a wall of separation between church and state.
Whereas the First Amendment was intended to take away jurisdiction over religion and confine the state to its own limited secular sphere, those statements made religion the focus of the courts and endowed them with enormous power over it. The no aid to religion standard made judges putative experts in religion with power to second guess believers about what aided their own religion. The wall of separation conferred on government authority to determine the proper realm of the church and confine it behind a figurative barrier of the state’s making. However, the First Amendment binds only the state; it does not apply to the church.
The American bishops have bought into this skewed interpretation. The question for day nine of last year's Fortnight for Freedom asked how can government “promote” and “foster” religion “while respecting the principle of separation of church and state?”
The Constitution and First Amendment rendered fostering, promoting—and manipulating—religion outside the jurisdiction of the limited American state. Separation of church and state is not a principle. It is not even a definition. It is rather a shibboleth and a test that secularists try to impose on America. As Philip Hamburger so brilliantly demonstrated, the phrase has always been a polemical device and one that was particularly employed by American anti-Catholics.
Employment Division v. Smith, written in 1990 by Justice Antonin Scalia, represents a momentous step towards righting the understanding of American religious liberty. That decision returned the focus of government to what is secular and within its jurisdiction. It replaces the religious questions the courts have been asking with a proper secular one: under the First Amendment does the government have jurisdiction to enact the law/regulation at issue? If a law is within the legitimate power of government to enact, then the First Amendment does not apply. That amendment is about what is outside the power of government and what it may not do. Free exercise of religion is religion exercised free from government jurisdiction. It is not and cannot be primarily a guarantee that people can follow what their religion dictates, and the framers never intended that the government would be managed according to the claims of individual conscience.
Government may give exemptions on account of conscience, but that is a different matter. If a law violates the First Amendment it is outside the power of government to enact and applies to no one. Conscientious exemptions, on the other hand, are given from laws which the government has the power to make. That tradition predates the Constitution. However, in granting exemptions, the government must stay within its proper secular limits and is still bound by the First Amendment. The conflation of the First Amendment and conscientious exemption is the source of much of the confusion surrounding the understanding of American religious liberty. The Smith decision has the virtue of clarifying the difference between them.
The recent debate on the H.H.S. contraceptive mandate exemplified the confusion that currently engulfs the understanding of American religious liberty. If the mandate violated the First Amendment then the provision would have applied to no one since it would have been outside the jurisdiction of government to enact. However, even those who objected to it or questioned its reasonableness or necessity did not generally challenge the government’s authority to enact such a provision. Rather, the issue involved the nature of the exemption that the government had power to grant. The government’s initial exemption was based on complex religious criteria involving the evaluation of the inculcation of religious values and whether those seeking an exemption were adhering to the tenets of their own religion. Those criteria far exceeded the secular jurisdiction of government and did in fact violate the First Amendment.
That such overreaching by government generated so little opposition generally and even among Catholic commentators is a measure of how much power Americans routinely concede to government over religion. Catholics would disagree among themselves on the meaning of those two religious issues over which the government so casually asserted authority. We would like, of course, to know if our schools are inculcating Catholic religious values, but the Constitution requires us to look elsewhere than the Department of Health and Human Services for that information.
A Gift of Government?
The confusion that engulfs the understanding of religious liberty in Catholicism and in American society lies in the fact that both church and state has each backtracked from the radical impulse that led to their respective embrace of religious freedom. Each now views that liberty as a gift of government.
The church achieved its radical transformation by envisioning liberty as part of human dignity protected by constitutional limitations rather than a gift of government. However, deciding what is contrary to conscience would make the conscientious claims of innumerable citizens the standard for governing. If religious freedom is a human and inviolable right, then the promotion and fostering of religion will be the work of free citizens rather than the role of government. It certainly may not give special civil recognition to a religious community.
Some opponents of the mandate have argued for a broader definition of a religious employer that would accommodate their conscientious objections. However, in a system that is constitutionally limited, government may not define what a religious employer is at all. Neither may it define what the free exercise of religion is because that is precisely freedom from such definitions being imposed by government whose task is to define its own secular, limited role.
America long ago embraced the radical proposition that religious freedom is a natural right outside the power of government. However, allowing the state to judge what aids or hinders religion and authority to separate out and designate the sphere of the church represents a drastic retreat from that original stance. Endowing the state with power to determine who is following the tenets of Catholicism was just another step in this radical usurpation of jurisdiction over religion. Critics of Smith concede that they view religious freedom as a gift of government when they define it as a process of striking “sensible balances between religious liberty and competing prior governmental interests.”
Before the American Revolution governments struck what they regarded as sensible balances and granted religious toleration to some and not to others. James Madison rejected that toleration in favor of the free exercise of religion, i.e., freedom from government jurisdiction in religion at all. Our religious liberty does not proceed from balances struck by politicians and judges but from a constitutionally limited government with no power to strike such balances.
Madison told the Virginia Ratifying Convention in 1788 that the proposed federal government had not “the shadow of right to intermeddle in religion.” The Fathers of Vatican II proclaimed our religious freedom as inviolable, pertaining to our dignity and protected by constitutional limitation. We need to return to that magnificent impulse and now develop its implications.
The bishops at the council wrapped their Declaration in the remnants of more than a thousand years of Christendom. Otherwise the Council would hardly have approved the document. The radical impulse of their Declaration demands that we abandon those remnants, and the time has surely come to do so. It is not the role of a constitutionally limited state to promote, foster or show favor to religion. Neither is it the role of government to see that the inviolable right to religious liberty is exercised within “due limits.” Rather American religious freedom is a command that the government stay within the due limits placed on it by the Constitution thus freeing citizens to define and exercise their religion.
Those who make radical pronouncements do not always grasp the practical consequences of their actions and the bishops at Vatican II did not work out the implications of their radical proclamation of religious liberty. If Catholics can now address the consequences of seeing religious liberty as inviolable, as proceeding from a limited state rather than as a government protected privilege, they can build on the great heritage they inherited from Vatican II. They can also consider what religious freedom means not only in the state but also in the church. And above all, they can contribute to the renewal of the understanding of our heritage of American religious liberty that has been so confused by the rhetoric and reasoning of the Supreme Court—though not by its decisions.
The task of clarifying the role of a constitutionally limited government with no power to foster religion, to define and separate out the church, to assess claims of conscience, or to decide if people are following the tenets of their religion could well begin with a re-reading of the Smith decision with new eyes.