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Unformatted text preview: Articles (of E?aith sgkrtficfl@s<0f pceaccaa N 9% T lie Religious Lioeny Clauses uno’ t/ze American Puo/io Pni/osop/zy James Davison Hunter @s Guinness editors T ne Brookings Institution Wasnington, D. C. l r a v Copyright © 1990 by THE BROOKINGS INSTITUTION 1775 Massachusetts Avenue, NW, Washington, DC. 20036 Library of Congrtss Cataloging-in-Paoliration data Articles of faith. articles of peace : the religious liberty clauses and the American public philosophy / James Davison Hunter and Os Guinness. editors. p. cm. ISBN 0-8157-3828—5 (alk. paper) 1. Freedom of religion—United States. 2. Church and state—United States. 3. Religious tolerance—United States. I. Hunter, James Davison. II. Guinness, Os. KF4783-A97 1990 342.73’0852—dc20 [347-3028521 90-32509 CIP 987654321 The paper used in this publication meets the minimum re- quirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI 23948-1984. Set in Linotmn Gas/on No. 2 Composition by Crap/ii: Composition, Int. At/Iens, Georgia Printing R. R. Donne/Icy and Sons Co. Harrisonbmg, Virginia Boot design by Ken Sabol CW FIVE M Freedom of Conscience or Freedom of Choice? N) % MICHAEL J. SANDEL NE OF THE PREVAILING hypotheses ofthe contemporary pub— lic debate is that the reigning public philosophy is inadequate or impoverished in ways that a larger public role for religion might help to cure. In order to assess this claim, it may be helpful to. examine the political theory of contemporary liberalism and to describe its stance toward religious practice and belief. In one respect, the liberal tradi- tion seeks to secure for religion the most favorable conditions; given its emphasis on toleration and respect for conscience, liberal political theory promises the fullest religious liberty for each conSistent with a similar liberty for all. In another respect, however, liberalism limits the reach of religion; its insistence that government'b'e neutral among competing moral and theological visions, that political authority be justified without reference to religious sanction, would seem to confine religion to private life and to resist a public role. . The question whether government can be neutral among competing moral and religious conceptions is the subject of much debate within recent political philosophy. The goal here is threefold: the first is to summarize this debate, and to argue, briefly, that government cannot be neutral in this sense. The second is to show that, notw1thstanding its inadequacy as theory, this version of liberalism is the one that has come to inform the constitutional law of religious liberty. I try finally to show how problems in the theory find expression in the law. 74 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE Liberalism and the Unencumbered Self The version of liberalism with which I am concerned is prominent in contemporary moral, legal, and political philosophy. Its central idea is that government should be neutral on the question of the good life.1 Since people disagree on the best way to live, public policy should be “independent of any particular conception of the good life, or of what gives value to life.”2 This version of liberalism is defined by the claim that the right is prior to the good, and in two senses: first, individual rights cannot be sacrificed for the sake of the general good; and second, the «principles of justice that specify these rights cannot be premised on any particular vision of the good life. What justifies the rights is not that they maxi— mize the general welfare or otherwise promote the good, but rather that they comprise a fair framework within which individuals can choose their own values and ends, consistent with a similar liberty for others. The claim for the priority of the right over the good derives much of its moral force from a certain conception of the person. Unlike utilitarianism, which assumes a self simply defined as the sum of its desires, the liberal ethic affirms the notion ofa choosing self, indepen- dent of the desires and ends it may have at any moment. Thus Kant appealed to the idea ofa moral subject given prior to experience, ca- pable of an autonomous will. And contemporary liberals rely on the similar idea ofa self given prior to its purposes and ends. For purposes of politics and law, this conception of the person seems compelling for at least two reasons. First, the image of the self as free and independent, unencumbered by aims and attachments it does not choose for itself, offers a powerful liberating vision. Freed from the sanctions of custom and tradition and inherited status, unbound by moral ties antecedent to choice, the liberal self is installed as sovereign, cast as the author of the only obligations that constrain. More than the simple sum of circumstance, we become capable of the dignity that consists in being persons of our “own creating, making, choosing.”3 We are agents and not just instruments of the purposes we pursue. We are “self-originating sources of valid claims.“ A second appeal of the liberal self-image consists in the case it im- 75 . MICHAEL J. SANDEL plies for equal respect. The idea that there is more to a person than the roles he plays or the customs she keeps or the faith he affirms suggests a basis for respect independent of life’s contingencies. Liberal justice is blind to such differences between persons as race, religion, ethnicity, and gender, for in the liberal self-image, these features do not really define identity in the first place. They are not constituents but merely attributes of the self, the sort of things the state should look beyond. These considerations help clarify the connection between the aspi- ration to neutrality and the unencumbered self. If we conceive our- selves as free and independent selves, unclaimed by moral ties anteced- ent to choice, we must be governed by a neutral framework, a framework of rights that refuses to choose among competing purposes and ends. If the self is prior to its ends, then the right must be prior to the good. But how plausible is this self-conception? Can it make sense of our moral life, at least in those aspects relevant to politics and law? I shall first suggest some general reasons for thinking that it cannot, then turn to the specific case of religion. One general difficulty with the liberal self—image is that it limits in advance the kind of community of which we are capable, and implau— sibly restricts the scope of moral and political obligation.‘ Understood as unencumbered selves, we are free to join in voluntary association with others, whether to advance our private ends, or to enjoy the com- munal sentiments that such associations often inspire. We might call this community in the cooperative sense. What is denied to the unencumbered self is the possibility of mem- bership in any community bound by moral ties antecedent to choice; he cannot belong to any community where the self itself could be at stake. Such a community would engage the identity as well as the in— terests of the participants, and so implicate its members in 3 Citizenship more thoroughgoing than the unencumbered self can know. More than a cooperative arrangement, community in this second, stronger sense describes a mode of self-understanding, a shared way of life that partly defines the identity of the participants. We might call it community in the constitutive sense. One way of distinguishing communities in the constitutive sense from those that are merely cooperative is by reference to the moral and 76 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE political obligations the participants acknowledge. On the liberal view obligations can only arise in one of two ways, as “natural duties” we owe to human beings as such, or as voluntary obligations we incur by consent. The natural duties are the duties we owe persons qua per- sons—to do justice, to avoid cruelty, and so on. All other obligations the ones we owe to particular others, are founded in consent, and can only arise in virtue of agreements we make, be they tacit or ex— plicit.6 Conceived as unencumbered selves, we must respect the dignity of all persons, but beyond this, we owe only what we agree to owe. Lib— eral justice requires that we respect people’s rights (as defined by the neutral framework), not that we advance their good. Whether we must concern ourselves with other people’s good depends on whether, and with whom, and on what terms, we have agreed to do so. The liberal attempt to construe all obligation in terms of duties universally owed or obligations voluntarily incurred makes it difficult to account for a wide range of moral and political ties that we com- monly recognize. It fails to capture those loyalties and responsibilities whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are—as members of this family or city or nation or people, as bearers of that history, as citizens of this republic. Loyalties such as these can be more than values I happen to have, and to hold, at a certain distance. The moral responsibilities they entail may go beyond the obligations I voluntarily incur and the “natural duties” I owe to human beings as such. Those who share a common life informed by moral ties such as these may be said to comprise a community in the constitutive sense. The meaning of their membership cannot be redescribed without loss in wholly voluntarist or contractarian terms. In the sections to follow, I explore this general objection to contem— porary liberalism by considering the case of religion. I shall try to show that the version of liberalism I have summarized informs the current understanding of religious liberty in American constitutional law, and that difficulties in the theory show up in the practice. I shall try also to show that the reigning interpretation of religious liberty is not characteristic of the American constitutional tradition as such, but a recent development that departs from earlier understandings. 77 - MICHAEL J. SANDEL Religion and the Comtitution: The Search for Neutrality After World War II, the U.S. Supreme Court assumed as its primary role the protection of individual rights against government infringe— ment. Increasingly, it defined these rights according to the requirement that government be neutral on the question of the good life, and de— fended neutrality as essential to respecting persons as free and indepen- dent selves, unencumbered by moral ties antecedent to choice. The principle of government neutrality found its first sustained ap- plication in cases involving religion. Time and again the Supreme Court has held that “in the relationship between man and religion, the State is firmly committed to a position of neutrality.”7 “Government in our democracy, state and nation, must be neutral in matters of religious theory, doctrine, and practice. . . . The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”a Whether described as “a strict and lofty neutrality,”9 a “wholesome neutrality,” ’0 or a “benevolent neutrality,” ” the principle “that the Government must pursue a course of complete neutrality toward religion” ‘2 is well established in American constitu- tional law. In liberal political thought, religion offers the paradigmatic case for bracketing controversial conceptions of the good.” The Supreme Court has conveyed its insistence on bracketing religion by invoking Jefferson’s metaphor of a “wall of separation between church and state.”” While some complained that “a rule of law should not be drawn from a figure of speech,”” most see the wall as a symbol of resolve to keep religion from bursting the constitutional brackets that contain it. Since “the breach of neutrality that is today a trickling stream may all too soon become a raging torrent,” '6 the “wall between Church and State . . . must be kept high and impregnable.” '7 It is striking to recall that, for all its familiarity, the requirement that government be neutral on matters of religion is not a long- standing principle of constitutional law, but a recent arrival, a devel— opment of the last forty years. Not until 1947 did the Supreme Court hold that government must be neutral toward religion.” The Ameri— can tradition of religious liberty goes back further of course. The Con— 78 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE stitution forbids religious tests for federal office,” and the first words of the First Amendment declare that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But the Bill of Rights did not apply to the states, and at the time of its adoption, six of the thirteen states maintained religious es- tablishments.20 Far from prohibiting these arrangements, the First Amendment was enacted in part to protect state religious establish— ments from federal interference.“ Within the states, the most eventful struggle for the separation of church and state occurred in Virginia, not least because Jefferson and Madison waged it. In 1776 the legislature disestablished the Anglican church, but left open the possibility of a “general assessment,” or tax for the support of religion. Jefferson argued for complete separation of church and state, and in “A Bill for Establishing Religious Free- dom” (1779), proposed that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”22 After several years of inconclusive debate, Patrick Henry intro- duced a general assessment bill to support “teachers of the Christian Religion.” Under Henry’s proposal, each taxpayer could designate which Christian church would receive his tax. Henry defended his plan on the nonsectarian grounds that the diffusion of Christian knowl- edge would help “correct the morals of men, restrain their vices, and preserve the peace of society.” Madison led the opposition, and wrote a pamphlet, “Memorial and Remonstrance against Religious Assess- ments” (1785), that helped turn opinion against the bill. After defeat- ing the general assessment, Madison won passage of Jefferson’s bill guaranteeing separation of church and state.23 Some states did not disestablish religion until well into the nine- teenth century. Connecticut continued tax support for religion until 18 I 8, Massachusetts until 1833. New Jersey restricted full civil rights to Protestants until 1844, and Maryland required belief in God as a condition of public office until the U.S. Supreme Court struck it down in 1961 .2“ Even in states without establishments, some nineteenth-cen- tury courts held Christianity to be part of the common law. In a New York case in 1811, Chancellor James Kent upheld a conviction for blasphemy on the ground that “we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity.”“ 79 ' MICHAEL J. SANDEL In 1845 the U.S. Supreme Court reiterated with respect to the re- ligious liberty clauses its view that the Bill of Rights did not constrain the states. “The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws.”26 As far as the US. Constitution was concerned, the states were free to establish a church or “to recreate the Inquisition,” at least until the adoption of the Fourteenth Amend- ment.27 Even after the adoption of the Fourteenth Amendment, attempts to assert government neutrality toward religion confronted difliculty. In 1876 President Ulysses Grant spoke out against public support for sectarian schools, and fellow Republican James G. Blaine introduced in Congress a constitutional amendment to that end: “No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any state for the support of public schools . . . shall ever be under the control of any religious sect or denomination.” The amendment passed the House but was defeated in the Senate, partly because of Catholic op- position, partly because of a belief that existing constitutional protec— tions were adequate.28 Two years later, the US. Supreme Court upheld a federal law ban- ning polygamy, a practice the Mormons regarded as a. religious duty. In Reynold: v. United State: (187 8), a Mormon conVicted under the statute complained it denied him the free exercise of religion guaran- teed in the First Amendment. After citing Madison’s “Memorial and Re- monstrance” and Jefferson’s “wall of separation,” the Court nonetheless upheld the conviction, arguing that the First Amendment protected religious belief but not practice. “Polygamy has always been odious’ among Western nations, the Court declared, adding that polygamy was less conducive than monogamy to democratic government.” Not until the 1940s did the Court apply the First Amendment’s religious liberty clauses to the states and declare the separation of church and state a principle of constitutional law. In Cantwall v. C on— necticut (1940), the Court held that the Fourteenth Amendment incor— porated both the establishment and free exercise clauses of the Bill of Rights, and “rendered the legislatures of the states as incompetent as Congress to enact such laws.”30 In Everson v. Board of Education of 80 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE Ewing Towns/zip (1947), the Court gave the establishment clause a broad interpretation and emphasized, for the first time, Jefferson’s “wall of separation between church and state.”31 Writing for the Court, Justice Black gave forceful expression to the principle of government neutrality. “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any reli- gious activities or institutions.” The First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers.“2 Since Everson, religion has generated much constitutional contro— versy, but the principle that government must be neutral toward reli— gion has rarely been questioned.33 For the most part, the justices have cast their disagreements as arguments about the proper application of neutrality, not about the principle itself. In fact, Black’s landmark opinion in Ewrson came in the course of upholding a state subsidy for bus transportation of parochial school students. The dissenters ap— plauded the Court’s insistence on “complete and uncompromising sepa— ration” but found it “utterly discordant” with the result in the case.“ In 1963, the Court ruled that Bible reading in the public schools was a religious exercise at odds with the requirement “that the Govern— ment maintain strict neutrality, neither aiding nor opposing reli— gion.”” Justice Stewart dissented, but in the name of neutrality. Per— mission of religious exercises is necessary, he argued, “if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private?“ In 1968 the Court struck down an Arkansas law that banned the teaching of evolution. “Government must be neutral in matters of re- ligious theory, doctrine, and practice,” wrote Justice Fortas. “It may not be hostile to any religion.” In a concurring opinion, Justice Black agreed with the result but doubted that the principle of neutrality sup- ported it. If Darwinism contradicts some people’s religious convic- tions, then it is hardly neutral to teach it in the public schools. “If the 81 _ MICHAEL J. SANDEL theory is considered anti-religious, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an ‘anti- religious’ doctrine to school children?“7 Black pointed out that the Court might simply take the view that fundamentalists who regard evolution as antireligious are wrong. But that would be taking sides in the controversy the Court purports to bracket. “Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti—religious doctrine,” Black argued, the issue is more difficult than the Court ac- knowledges. A better way to bracket, he suggested, might be to re- move the controversial subject from the schools altogether, as Arkansas arguably did. So long as the biblical account of creation is not taught instead, “does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines?“B The contest for the mantle of neutrality continued in 198 5, when the Court struck down a moment—of-silence statute permitting volun— tary prayer in Alabama schools. The Court held that since the purpose of the law was to restore prayer to the schools, it violated “the estab— lished principle that the Government must pursue a course of complete neutrality toward religion.” Chief Justice Burger dissented, arguing that the prohibition “manifests not neutrality but hostility toward reli— gion.”39 Even in cases where the Supreme Court has upheld government involvement in arguably religious practices, it has taken pains to main— tain that the religious aspect is only incidental, that the involvement does not endorse or advance or prefer religion. In McGowan v. Mary— land (1961), the Court upheld Sunday Closing laws on the grounds that they no longer retain their religious character. Notwithstanding their religious origins, wrote Chief Justice Warren, laws prohibiting business and commercial activity on Sundays now serve the secular purpose of “providing a Sunday atmosphere of recreation, cheerful— ness, repose and enjoyment. . . . The air of the day is one of relaxation rather than obe of religion.“0 In 1984. the Burger Court upheld on similar grounds a city- sponsored Christmas display including a creche, or Nativity scene. The purpose of the display is to celebrate the holiday and to depict its 82 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE origins, the Court held. “These are legitimate secular purposes.” Any benefit it brings to religion “is indirect, remote and incidental.” Dis— play of the creche is no more an advancement or endorsement of re— ligion than the exhibition of religious paintings in governmentally supported museums.“l In both cases, dissenters criticized the Court for failing to take se- riously the religious character of the practices they upheld. “N o matter what is said, the parentage of the Sunday Closing laws is the Fourth Commandment,” wrote Justice Douglas. “They serve and satisfy the religious predispositions of our Christian communities.M2 Dissenting in the creche case, Justice Blackmun complained that the majority had done “an injustice to the creche and the message it manifests.” In the hands of the Court, “The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial pur- poses, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. . . . Surely, this is a misuse of a sacred symbol.” ‘3 Religion and t/ze C (institution.- Justifying Neutrality In order to assess the Court’s conflicting applications of neutrality, it is necessary to consider the reasons for neutrality. What counts as neu— trality partly depends on what justifies neutrality, and the Court has offered two different sorts of justification for insisting that government be neutral toward religion. The first has to do with protecting the interests of religion on the one hand, and of the state on the other. “The First Amendment rests on the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.”“ “We have staked the very existence of our country on the fact that complete separation between the state and religion is best for the state and best for religion.”‘5 “In the long view the inde- pendence of both church and state in their respective spheres will be better served by close adherence to the neutrality principle.” ‘6 The religious interest served by separation lies in avoiding the cor- ruption that comes with dependence on civil authority. A century and 83 o- MICHAEL J. SANDEL a half before Jefferson stated the secular case for a “wall of separation” between church and state, Roger Williams gave the metaphor a theo— logical meaning. “When they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world,” he wrote, “God hath ever broke down the wall itself, re— moved the candlestick, and made His garden a wilderness, as at this n47 da . yThe Court has invoked the theological argument for separation only occasionally, and usually in combination with other arguments. In striking down school prayer, for example, Justice Black argued that the establishment clause “rested on the belief that a union of govern— ment and religion tends to destroy government and to degrade reli— gion.” The history of established religion “showed that many people lost their respect for any religion that had relied upon the support of government to spread its faith.” The founders sought by the establish- ment clause to avoid the “unhallowed perversion” of religion by a civil magistrate.” And Justice Brennan emphasized that separation is not only for the sake of the nonbeliever but also for “the devout believer who fears the secularization of a creed which becomes too deeply in— volved with and dependent upon the government.”9 The political interest served by separation is in avoiding the civil strife that has historically attended church—state entanglements. Pro- viding public funds for religion brings “the struggle of sect against sect. . . . It is only by observing the prohibition rigidly that the state can maintain its neutrality and avoid partisanship in the dissensions inevitable when sect opposes sect over demands for public moneys.”50 Opposing public school involvement in a “released time” program for religious instruction, Justice Frankfurter wrote that “the public school must be kept scrupulously free from entanglement in the strife of sects.”5l In a similar case, Justice Black vividly recalled the danger of sectarian strife that separation was meant to prevent. “Colonial history had already shown that, here as elsewhere zealous sectarians entrusted with governmental power to further their causes would sometimes tor- ture, maim and kill those they branded heretics, atheists or agnos- tics “2 Alongside the argument that neutrality is best for religion and best for the state is a different sort of argument, an argument in the name 84 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE of individual freedom. On this justification, the state must be neutral not only to avoid compromising religion and provoking sectarian strife, but also to avoid the danger of coercion. This argument goes back to the eighteenth—century concern for freedom of conscience, and in its modern form emphasizes respect for persons’ freedom to choose their religious convictions for themselves. It thus connects the case for neutrality with the liberal conception of the person. In its modern, or voluntarist version, this argument for religious liberty first appears in Cantwe/l, the case that announced the incorpo— ration of the religious liberty clauses. “Freedom of conscience and free- dom to adhere to such religious organization or form of worship a: the individual may c/zoose cannot be restricted by law.” The First Amend- ment “safeguards the free exercise of the chosen form of religion.”” In banning Bible reading in the public schools, the Court found justification for neutrality in “the right of every person to freely choose his own course” with reference to religion, “free of any compulsion from the state.” Justice Stewart dissented from the result, but endorsed the view that neutrality is required for the sake of respect for individ- ual choice, “a refusal on the part of the state to weight the scales of private choice.”“ Contemporary commentators have identified the voluntarist argu- ment for neutrality as the primary justification for the separation of church and state. “The fundamental principle underlying both Reli— gion clauses is the protection of individual choice in matters of reli- gion—whether pro or con.”” “Since freedom of religious choice, not neutrality per se, is the fundamental establishment value, the neutrality tool is useful only insofar as it promotes that choice.”56 “The moral basis of the antiestablishment clause is . . . equal respect,” not for re— ligious beliefs themselves but “for the processes of forming and chang— ing such conceptions.”7 In short, the religious liberty clauses secure “the core ideal of religious autonomy.”“‘ Perhaps the clearest statement of the voluntarist conception of reli- gious liberty is the one that appears in Justice Stevens’s opinion for the Court in a 1985 case striking down Alabama’s moment of silence for voluntary prayer in public schools. “The individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority,” Stevens wrote. “The 85 a MICHAEL J. SANDEL Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful.”"’ As Stevens’s opinion illustrates, the voluntarist justification of neu— trality presupposes the liberal conception of the person. It holds that government should be neutral toward religion in order to respect per- sons as free and independent selves, capable of choosing their religious convictions for themselves. The respect this neutrality commands is not, strictly speaking, respect for religion, but respect for the self whose religion it is, or respect for the dignity that consists in the ca- pacity to choose one’s religion freely. Religious beliefs are “worthy of respect,” not in virtue of what they are beliefs in, but rather in virtue of being “the product of free and voluntary choice,” in virtue of being beliefs of a self unencumbered by convictions antecedent to choice. By invoking the voluntarist conception of neutrality, the Court gives constitutional expression to the version of liberalism that conceives the right as prior to the good and the self as prior to its ends, at least where religion is concerned. We are now in a position to see how the promise of the theory, but also its problems, make themselves felt in the prac- tice the theory informs. We turn first to the promise. The voluntarist case for neutrality, insisting as it does on respect for persons, seems to secure for religious liberty a firm foundation. Unlike the theological case for separation of church and state, it does not de— pend on any particular religious doctrine. And unlike the political case for separation, it does not leave religious liberty hostage to uncertain calculations about how best to avoid civil strife. Under present condi— tions, such calculations may or may not support the separation of church and state. As Justice Powell has observed, the risk “of deep political division along religious lines” is by now “remote.”0 We do not live on the brink of the wars of religion that gave toleration its first occasion. Even granting the importance of avoiding sectarian strife, a strict separation of church and state may at times provoke more strife than it prevents. The school prayer decisions of the early sixties, for example, 86 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE set off a storm of political controversy that twenty-five years have not stilledf1 A court concerned above all to avoid social discord mi ht reasonably have decided those cases the other way. g . The voluntarist case for neutrality, by contrast, does not tie religious liberty to such contingencies. In aflirming a notion of respect for per- sons, it recalls the ideal of freedom of conscience. By emphasizing the ‘l‘nleldual,S right to choose his beliefs, it points beyond religion to “the broader perspective” of autonomy rights in general, including the rights of privacy and personhood.”62 It thus casts religious liberty as a particular case of the liberal claim for the priority of the right over the good and the self—image that attends it. Respecting persons as selves defined prior to the religious convictions they aflirm becomes a partic— ular case of the general principle of respect for selves defined prior to their aims and attachments. . But as we have seen, the image of the unencumbered self, despite its appeal, is inadequate to the liberty it promises. In the case of reli- gion, the liberal conception of the person ill equips the Court to secure religious liberty for those who regard themselves as claimed by reli- gious commitments they have not chosen. Not all religious beliefs can be redescribed without loss as “the product of free and voluntary choice by the faithful.” ‘3 Freedom of Conscience 'versus Freedom of Choice This can be seen by contrasting the voluntarist account of religious liberty with freedom of conscience as traditionally conceived. For Madison and Jefferson, freedom of conscience meant the freedom to exerc1se religious liberty—to worship or not, to support a church or not, to profess belief or disbelief—without suffering civil penalties or incapacities. It had nothing to do with a right to choose one’s beliefs. Madison’s “Memorial and Remonstrance” consists of fifteen arguments for the separation of church and state and not one makes any mention of “autonomy” or “choice.” 6“ The only choice referred to in Jefferson’s Bill for Establishing Religious Freedom “is predicated of God, not man.”“ Madison and Jefferson understood religious liberty as the right to 87 _ MICHAEL J. SANDEL exercise religious duties according to the dictates of conscience, not the right to choose religious beliefs. In fact, their argument for religious liberty relies heavily on the assumption that beliefs are not a matter of choice. The first sentence of Jefferson’s bill states this assumption clearly: “The opinions and beliefs of men depend not on their own will, but follow involuntarily the evidence proposed to their own minds.” 6‘ Since I can only believe what I am persuaded is true, belief is not the sort of thing that coercion can compel. Coercion can produce hypocrisy but not conviction. In this assumption Jefferson echoed the view of John Locke, who wrote in A Letter Concerning Tbleration (I 68 5), “It is absurd that things should be enjoined by laws which are not in men‘s power to perform. And to believe this or that to be true, does not depend upon our will.”67 It is precisely because belief is not governed by the will that freedom of conscience is unalienable. Even if he would, a person could not give it up. This was Madison’s argument in “Memorial and Remon— strance.” “The Religion then of every man must be left to the convic— tion and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: it is unalienable also, because what is here a right towards men, is a duty towards the Creator.” ‘59 Oddly enough, Justice Stevens cites this passage from Madison in support of the voluntarist view. But freedom of conscience and free- dom of choice are not the same; where conscience dictates, choice de- cides. Where freedom of conscience is at stake, the relevant right is to exercise a duty, not make a choice. This was the issue for Madison and Jefferson. Religious liberty addressed the problem of encumbered selves, claimed by duties they cannot renounce, even in the face of civil obligations that may conflict. In contemporary liberalism, by contrast, religious liberty serves the broader mission of protecting individual autonomy. On this view, gov— ernment should be neutral toward religion for the same reason it should be neutral toward competing conceptions of the good life gen- erally—to respect people’s capacity to choose their own values and ends. But despite its liberating promise, or perhaps because of it, this 88 FREEDOM or CONSCIENCE 0R FREEDOM OF CH01CE broader mission depreciates the claims of those for whom religion is not an expression of autonomy but a matter of conviction unrelated to a choice. Protecting religion as a “life—style,” as one among the values that an independent self may have, may miss the role that religion plays in the lives of those for whom the observance of religious duties is a constitutive end, essential to their good and indispensable to their iden- tity. Treating persons as “self-originating sources of valid claims”69 may thus fail to respect persons bound by duties derived from sources other than themselves. The case of Tborton v. Caldor, Inc. (1985) shows how voluntarist assumptions can crowd out religious liberty for encumbered selves. By an 8-1 decision, the Supreme Court struck down a Connecticut statute guaranteeing Sabbath observers a right not to work on their Sabbath.70 Although the law gave all workers the right to one day off each week, it gave to Sabbath observers alone the right to designate their day. In this lack of neutrality the Court found constitutional infirmity. Chief Justice Burger, writing for the Court, noted that Sabbath observers would typically take a weekend day, “widely prized as a day off.” But “other employees who have strong and legitimate, but non- religious reasons for wanting a weekend day 05 have no rights under the statute.” They “must take a back seat to the Sabbath observers.” Justice O’Connor echoed this worry in a concurring opinion. “All em— ployees, regardless of their religious orientation, would value the ben— efit which the statute bestows on Sabbath observers—the right to select the day of the week in which to refrain from labor.”71 But this objection confuses the right to exercise a duty with the right to make a choice. Sabbath observers, by definition, do not select the day of the week they rest; they rest on the day their religion requires. The benefit the statute confers is not the right to choose a day of rest, but the right to exercise the duty of Sabbath observance on the only day it can be exercised. Considered together with earlier decisions upholding Sunday Clos- ing laws, Tborton v. Caldor yields a curious constitutional conclusion: a state may require everyone to rest on Sunday, the day of the Christian Sabbath, so long as the aim is not to accommodate the observance of the Sabbath. But it may not give Sabbath observers the right to rest on the day of the week their religion requires. Perverse though this result 89 _ MICHAEL J. SANDEL may seem from the standpoint of promoting religious pluralism, it aptly reflects the constitutional consequences of seeing ourselves as unencumbered selves. The Court has on occasion accorded greater respect to the claims of encumbered selves. When a Seventh-day Adventist was fired from her job for refusing to work on Saturday, her Sabbath, she was denied unemployment compensation under a rule requiring applicants to ac- cept available work. The Supreme Court decided in her favor, holding that the state could not force a worker to choose between her religious convictions and means of support. According to the Court, requiring the state to take account of Sabbath observance in the administration of its unemployment program did not prefer religion in violation of neu- trality. Rather, it enforced “the governmental obligation of neutrality in the face of religious differences.” In this case at least, the Constitu- tion was not blind to religion but alive to its imperatives.72 In cases involving conscientious objection to military service, the Court has interpreted federal law broadly and refused to restrict ex— emptions to those with theistic beliefs alone. The relevant test is “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.”” What matters is not “conventional piety” but an imperative of conscience rising above the level of a policy preference.“ The point of the exemption, according to the Court, is to prevent persons bound by moral duties they cannot renounce from having either to violate those duties or violate the law. This aim is consistent with Madison and Jefferson’s concern for the predicament of persons claimed by dic- tates of conscience they are not at liberty to choose. As the Court wrote, “the painful dilemma of the sincere conscientious objector arises pre— cisely because he feels himself bound in conscience not to compromise his beliefs or affiliations.”75 In Wisconsin v. Yoder (1972), the Court upheld the right of the Old Order Amish not to send their children to school beyond the eighth grade, despite a state law requiring school attendance until age sixteen. Higher education would expose Amish children to worldly and com- petitive values contrary to the insular, agrarian way of life that sustains Amish community and religious practice. The Court emphasized that the Amish claim was “not merely a matter of personal preference, but one of deep religious conviction” that pervades their way of life. 90 FREEDOM OF CONSCIENCE OR FREEDOM OF CHOICE Though “neutral on its face,” Wisconsin’s school attendance law unduly burdened the free exercise of religion, and so offended “the constitu— tional requirement for governmental neutrality?“ Writing in dissent, Justice Douglas asserted the voluntarist vision, arguing that the Amish children should be free to choose for them- selves whether to continue in school or adopt the ways of their parents. “Ifa parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel.” It is the child, not the parents who should be heard if the Court is to respect “the right of students to be masters of their own destiny.”77 The Court’s occasional hospitality to the claims of encumbered selves did not extend to Captain Simcha Goldman, an Orthodox Jew whom the Air Force prohibited from wearing a yarmulke while on duty in the health clinic where he served. Justice Rehnquist, writing for the Court, held for the Air Force on grounds of judicial deference to the “professional judgment of military authorities” on the impor— tance of uniform dress.” Of the precedents he cited in support of deference to the military, all involved interests other than religious duties or conscientious imperatives. “The essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.’” Standardized uniforms encourage “the subordi— nation of personal preferences and identities in favor of the overall mission.” Having compared the wearing of a yarmulke to “desires,” “interests,” and “personal preferences” unrelated to religion, Rehnquist did not require the Air Force to show that an exception for yarmulkes would impair its disciplinary objectives. Nor did he even acknowledge that a religious duty was at stake, allowing only that, given the dress code, “military life may be more objectionable for petitioner.”79 The Court’s tendency to assimilate religious liberty to liberty in gen- eral reflects the aspiration to neutrality; people should be free to pursue their own interests and ends, whatever they are, consistent with a sim- ilar liberty for others. But this generalizing tendency does not always serve religious liberty well. It confuses the pursuit of preferences with the exercise of duties and so forgets the special concern of religious liberty with the claims of conscientiously encumbered selves. This confusion has led the Court to restrict religious practices it I 91 MICHAEL J. SANDEL should permit, such as yarmulkes in the military, and also to permit practices it should probably restrict, such as Nativity scenes in the public square. In different ways, both decisions fail to take religion seriously. Permitting Pawtucket’s creche might seem to be a ruling sympathetic to religion. But asJustice Blackmun rightly protested, the Court’s permission came at the price of denying the sacred meaning of the symbol it protected. What has preceded attempts to show how the version of liberalism implicit in contemporary constitutional law depreciates the claims of religion and fails to respect persons bound by duties they have not chosen. To this extent, this version of liberalism fails to secure the toleration it promises. But beyond the issue of toleration is the further question whether the liberal self—image is adequate to the demands of self-government. Is the unencumbered self too thin to sustain the ob- ligations of citizenship? If so, is religion among the forms of identity likely to generate a fuller citizenship and a more vital public life? Or does it depend on the religion; might some religious convictions erode rather than enhance the civic virtues required of citizens in a pluralistic society? These are questions this chapter can only suggest. Perhaps an attempt to address them would itself enrich the discourse of American public life. 92 ...
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