Steven D. Smith. The Rise and Decline of American Religious Freedom. Cambridge: Harvard University Press, 2015. 223 pp. ISBN 978-0-674-72475-4.

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Steven Smith begins his new book almost apologetically, labeling it an “essay.” He might call it a sermon.

Smith wants to correct the “not wholly false” “standard story” that America, through the First Amendment, adopted the secular government and separation of church and state that, after nineteenth century discord, the Supreme Court enforces today (1). He confronts challenging issues: How to understand the First Amendment’s text and principle? How to address early failure to implement that principle if it demanded secular government? Is it possible or appropriate for government to abandon teaching morality (126, 132)? What to make of prevailing “civil religion?”

His treatment does not rise to the challenge.

The book rests on a theory ardently advocated by Justice Clarence Thomas and Akhil Amar (and rejected by most scholars and justices) that the Establishment Clause, denying Congress authority to make laws “respecting” an establishment of religion, is wholly jurisdictional, intended only to leave such questions to states. For Amar, the Amendment is “agnostic” on whether there should be religious establishments.

Smith recognizes that the Amendment cannot be entirely jurisdictional: its terms limit Congress and “necessarily” have a “substantive component” (61, 57). The result, the author concedes, was essentially separation of church and state and freedom of conscience, but he argues that these were not “affirmative constitutional principles” (61). (Later, Smith reverts to insisting that the clause was “merely,” “simply” jurisdictional [74, 108]).

This may sound confusing—but Smith must jump through this hoop to scrub the First Amendment of substantive meaning and to reach his primary point. He posits a dichotomy between those at the founding who wanted a secular government (“secularists”) and government (“providentialists”) supporting an officially “Christian” nation (later morphing to Judeo-Christian or, possibly, monotheistic) in which “[g]overnment and politics should … be at some level religious” (90). These interests “merged” in the nineteenth century, Smith concludes, to create a complex “American Settlement” in which providentialists sometimes won, sometimes secularists did. This was possible because under a “soft constitution” (to use Smith’s lexicon) courts were not “obligated to enforce [providential or secular principles] against unwilling actors who might have a different conception” (112).

As Smith recognizes, the jurisdictional argument does not hold water. First, the Amendment must say something about federal authority. Skimming the history, Smith concludes that the First Amendment requires separation of church (not religion) and state, interpreted narrowly only to prohibit a national church (121). He argues incorrectly that the Senate’s weak proposal on the Amendment (prohibiting a national religion) did little to change the House version (50); Madison obviously disagreed, as he insisted upon a conference that restored the Establishment Clause’s strength. Madison’s admonition that government not “compel men to worship God in any manner contrary to their conscience” or make laws that “might infringe the rights of conscience” (58), Smith dismisses as intended only to prohibit a single national church, contra Madison’s “Memorial & Remonstrance” and “Detached Memoranda.”

Second, Smith’s dichotomy between providentialists and secularists stumbles over those deeply religious eighteenth-century people who demanded secular government while insisting that religious freedom was not just for Christians, but also for Jews, Muslims, and infidels. Smith expresses concern with his own classification because he sees Jefferson and Madison as essentially providentialists, since they were theistic and accepted public religiosity (92, 106). Smith’s classification obfuscates the real issue; the question was not whether America generally would be religious or secular, but whether government would be secular. On this there were real differences of opinion, but the fault lines did not lie between secularists and people supporting public religion (who, as Smith notes, had theological reasons for seeking secular government [27,37]).

Third, the benevolent “merger” that Smith sees as central is a myth. Many of his examples simply evidence federalism—states resolved establishment issues differently (a point that he later recognizes [157]). Still, “a consensus developed in support of church-state separation” (66), but Smith ignores the source: state-after-state adopted a Jeffersonian/Madisonian vision, often embracing explicitly the First Amendment’s standard. This was hardly “later Americans … constitutionalizing” issues inadvertently while they “didn’t know they were doing it” (49). Nor can Smith’s “mishmash”—one side winning and later losing—“offer assurance that even minorities were still full participants in the constitutional contest” (114). Government providentialism can discourage full participation of non- (or other) religionists, as Jefferson explained in 1808 as he rejected “official” prayer (even though he prayed publicly).

In terms of the “soft” Constitution, Jefferson and Madison endorsed the Bill of Rights specifically so that courts could strike down unconstitutional legislation. Patrick Henry, the great Antifederalist, expressed outrage that anyone could think that federal courts would not strike unconstitutional actions.

All of this brings Smith to lecturing the Supreme Court for failing to understand the nature and history of religious freedom when it adopted the school prayer cases, shifting from a “no aid” policy to “no endorsement” policy (117, 119), but the difference between endorsement and aid can be devilishly thin. Smith raises a difficult problem, the seeming shift from separation of church and state to separation of religion and government. He bemoans the loss of soft experimentation and tolerance of religion in government that permitted school prayer and teaching creationism (being religion, not the “church,” Smith would apparently argue [123]). The “essay” avoids difficult problems. For example, how to deal with a “Hail Mary” as a school prayer, or prayer to Allah, or Satan, or the Flying Spaghetti Monster?

Smith insists that the Court’s “neutral” secularist approach is not neutral because providentialists’ religion demands “prayer is a public and collective obligation” (131). This is misdirection. The neutralist position says nothing against public and collective exercise of religion, only against government exercise. For example, nativity scenes are wholly appropriate in public in churches, on private property (e.g. the nativity at Pittsburgh’s U.S. Steel building). Government, though, cannot discriminate, so that if it permits a nativity scene on government property, it must accept not only menorah, but also festivus poles and Satanic displays. This is what really upsets providentialists.

Smith suggests that his “soft constitution” would permit private discrimination against gays and lesbians in the name of religious freedom. However, care must be taken not to confuse the constitutional issue—facially neutral laws are enforceable even if interfering with someone’s religious belief—and the statutory (or “soft” policy) question of accommodating religion in the First Amendment’s “joints,” like the Religious Freedom Restoration Act. Jefferson recognized the difference. We might use the example of banning racial discrimination even though some institutions—Bob Jones University famously—insisted that their religion demanded discrimination.

Notably, Smith does a heroic job of minimizing Jefferson and eighteenth century evangelicals. This is in striking contrast to Justice Rehnquist’s legitimate question in dissent in the moment of silence case: Why should we turn to Jefferson/Madison in understanding religious freedom rather than other founders with a less fulsome view of separation? Rehnquist recognized the necessity of grappling with Jefferson/Madison and their evangelical supporters because their views have been at the center of Supreme Court jurisprudence since an 1879 decision unanimously endorsed Jefferson’s Danbury Baptist Letter’s “wall of separation.” (Application to the states had to await incorporation under the post-Civil War amendments.) Rehnquist suggested Justice Joseph Story as an alternative, as does Smith. Story did, after all, endorse a “providentialist” view of multiple establishments, the “American Settlement” for Smith. Yet Story (hardly a founder) did so precisely when the voters were rejecting Massachusetts’ multiple establishment by an overwhelming margin (and they did so based on Jeffersonian/Madisonian principles). (Smith stretches to make George Washington and John Adams government providentialists as well, although recognizing that they were, at best, minimalists in this regard.)

There are a number of good books on these complex topics (I hope my work among them). Smith ignores Michael Myerson, Thomas Buckley, and my work; he is dismissive of excellent work by Steven Green, David Sehat, Carl Esbeck, and Douglas Laycock. Even the somewhat long-in-the-tooth Philip Hamburger gets relatively short-shrift. I disagree with some of those works in particulars or broadly, but they are worthy of serious study.