Strangers in an Alien Land: Religious Liberty in a Secularizing Society
Strangers in an Alien Land: Religious Liberty in a Secularizing Society
By Randall Balmer
When Nathan Deal, the governor of Georgia, a Republican, vetoed House Bill 757 recently, he noted the irony “that some in the religious community today feel that it is necessary for government to confer upon them certain rights and protections.” The bill, which passed by overwhelming margins in the Republican-dominated legislature and which supporters called the Free Exercise Protection Act, would have allowed faith-based organizations in Georgia to refuse “social, educational or charitable services that violate” their religious convictions. Those organizations could also refuse to hire anyone whose religious beliefs conflicted with theirs.1 The governor, a member of First Baptist Church in Gainesville, Georgia, noted: “What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world.” Religious liberty, Deal said, is conferred by God, not by the government, and he added that perhaps the best remedy for perceived grievances is a simple recourse to the First Amendment to the Constitution. The Georgia legislation, similar to bills passed in in South Dakota, North Carolina and those considered in other states, is generally understood as a response to the legalization of same-sex marriage. How these faithbased groups specifically are disadvantaged by same-sex marriage remains something of a mystery. Negotiating these matters of contestation between church and state is always complex, and it is undeniably an ongoing process. As with any negotiation, no party is fully satisfied with the outcome; but anytime you deal with contending entities, what St. Augustine characterized as the City of God and the City of Man, conflicts are inevitable. This recent spate of legislation has provided various groups the occasion to nurse—and to rehearse—their grievances. Standing outside of the governor’s office, Dave Baker, executive director of the Faith and Freedom Coalition in Georgia, for example, declared, “We’re going to continue to press to make sure that we have the same protections in our state law that citizens in other states have.”2
If Baker takes the governor’s advice and seeks shelter in the First Amendment—as he should—that doesn’t authorize him to disregard other elements of the Constitution. How would he propose, for example, to circumvent the 14th Amendment, which guarantees equal protection under the law? Any discussion of religious freedom, however, must proceed in historical context. And without any question, the numbers are staggering. Although we Americans remain a religious people—more so than any other Western nation—the numbers are in decline. According to a 2015 Pew survey, the number of Americans who describe themselves as Christian dropped by nearly eight percentage points over the previous seven years. In that same span, those who would be considered religiously unaffiliated—agnostic, atheist, or “nothing in particular”— increased more than six percent.
The Pew survey showed decreases in every major group: evangelical, mainline Protestant, Roman Catholic and Mormon. Although roughly seven in10 Americans still identify as Christian, the decline in religious affiliation was especially noticeable among the younger generation, those born after 1980.3 At the same time, American society has changed dramatically. A century ago, women did not have the right to vote, and only recently did we observe the 50th anniversaries of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. As Theodore Parker noted in the 19th century, and as Martin Luther King Jr. repeated at the conclusion of the historic march from Selma to Montgomery, Alabama, “The arc of the moral universe is long, but it bends toward justice.” Throughout American history, that arc has consistently pointed toward inclusion— far, far too slowly, in many cases, but inexorably. The story of America is that we eventually rise to our better selves, embracing the principles encoded into our charter documents, including the rights of minorities. Addressing the consequences of America’s “original sin,” racism, is an ongoing process, but few would argue that we’ve made progress over the past three centuries, even though, as the news reminds us almost on a daily basis, true equality remains elusive. The disparity in the earning power between women and men persists, but the gap has narrowed somewhat in recent years, and whereas women a century ago couldn’t vote, today a woman is mounting a credible campaign for the presidency. Slow progress, to be sure. Sometimes achingly slow. But we Americans eventually rise to our better selves and respond to what Abraham Lincoln called “the better angels of our nature.” It is in this context that a clear majority of Americans (but by no means all) believe that the guarantee of equal rights, including the right to marry, should be extended to all Americans, including to those who want to contract same-sex marriages. In contrast to matters of race and gender, the rapidity of shifting sentiments on this question has been breathtaking. According to the Pew Research Center, Americans in 2001 opposed same-sex marriage by a margin of 57 percent to 35 percent; by 2015 the numbers had flipped: 55 percent of Americans supported same-sex marriage, 39 percent opposed it.4 The United States Supreme Court’s decision last summer in Overgefell v. Hodges settled the matter. “No longer may this liberty be denied,” Anthony M. Kennedy wrote in the majority opinion. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.” Kennedy’s decision framed the issue clearly in terms of constitutional rights. “The issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry,” he wrote. The Constitution “grants them that right.”5 For opponents, those who style themselves defenders of “traditional” marriage, these recent changes in American society are disheartening. It doesn’t take too much imagination to see these two impulses—“traditional values” and the appropriation of constitutional rights— as on a collision course over the past decade or so. And when the “traditional values” caucus cloaks its position, however improbably, in the language of religious liberty, the stakes ratchet even higher. How are we to negotiate this apparent collision between constitutional rights and religious freedom? The first thing that must be said is that any such negotiation is dicey because it represents the conflict— or the potential for conflict—between two value systems, one of them liberal democracy and the other religiously informed principles. Advocates for both are, for the most part, sincere and well-intentioned. The second thing that must be said is that such negotiations are part of the price we pay for pluralism. We can pine for a homogeneous society— and some do—but America has never been homogeneous, not even in the 17th century. Negotiations of this sort have been transpiring ever since that time— over blue laws, for instance, or divorce or alcohol or abortion. Such are the consequence and the challenge of pluralism. The governor of Georgia’s comment about the First Amendment may have been a throwaway line, but I suspect there’s some promise in this approach. I happen to regard the First Amendment as the genius of American life. It is, I am persuaded, the reason Americans remain so incurably religious, despite a trailing off in recent years. The First Amendment set up a free marketplace for religion in America, and throughout American history religious entrepreneurs (to extend the metaphor) have competed with one another for popular followings. American history is littered with examples, from Mother Ann Lee to Sister Aimee McPherson, from John Humphrey Noyes to Elijah Muhammad, from Joseph Smith Jr. to Arthur Blessitt. All have taken liberal advantage of the First Amendment’s promise of a free market, where all religions compete equally (more or less), where the government provides no favor for one religion over another. There are, of course, two parts of the First Amendment. The opening part deals with religion, and the second section deals with freedom of speech and expression. And the first part has two provisions. The first enjoins Congress from enacting any law leading to religious establishment, and the second guarantees “free exercise” of religion. Taken together, these provisions of the First Amendment comprised a policy that Thomas Jefferson characterized as the “separation of church and state.” And so it does. And it’s worth emphasizing again that the separation of church and state provided in the First Amendment has served religious groups remarkably well over the course of American history. In the current supposed contestation between constitutional rights and religious freedom, those who style themselves defenders of “traditional values” frequently appeal to the “free exercise” clause of the First Amendment. “I am signing HB 1523 into law to protect sincerely held religious beliefs and moral convictions,” Phil Bryant, governor of Mississippi, declared last week. “This bill merely reinforces the rights which currently exist to the exercise of religious freedom as stated in the First Amendment to the U.S. Constitution.”6 Those cloaking themselves in the “free exercise” clause seek to exercise their religious prerogatives by effectively (though not admittedly) denying constitutional rights to others. My religious convictions prohibit me from using contraception, the argument goes; in the name of free exercise and religious liberty, I should not be compelled to provide funding for contraception to my employees as part of their benefits. Or, I personally oppose same-sex marriage, so, even in the face of the 14th Amendment or Title II of the Civil Rights Act, I should be able to deny my business services to same-sex couples. For historians, these arguments have a familiar ring. The day after Lyndon Johnson signed the Civil Rights Act of 1964, Lester G. Maddox, brandishing an axe handle, intercepted three African-Americans who wanted to purchase a meal in his restaurant. Another segregationist, Moreton Rolleston, owner of Heart of Atlanta Motel, declared that “the fundamental question . . . is whether or not Congress has the power to take away the liberty of an individual to run his business as he sees fit in the selection and choice of his customers.”7 These issues have been, and will continue to be, argued in legislatures and in the courts. But I want to suggest that a more constructive approach might be for people of faith to focus not so much on the free exercise clause of the First Amendment, but on the establishment clause, the clause that protects against any religious establishment. And here I want to return to the wall of separation metaphor that Jefferson employed in his January 1, 1802, letter to the Baptists of Danbury, Connecticut. The antecedent for Jefferson’s remark was Roger Williams’s declaration a century and a half earlier. Williams, a Puritan minister in Salem, Massachusetts, and founder of the Baptist tradition in America, very early on detected the dangers of too close an association between church and state. Following his banishment from Massachusetts, he organized what became Rhode Island as an experiment in religious toleration. In 1644, he wrote that the “garden of the church” should be set apart from the “wilderness of the world” by means of a “wall of separation.” Williams’s metaphors are now so familiar to us that we miss their meaning. But to grasp the significance of his declaration, we must bear in mind that the Puritans were not members of the Sierra Club; that is to say, they did not share our post-Thoreau romance with wilderness. For 17th century colonists, the wilderness was a place of danger where evil lurked. So when Williams said that he wanted to protect the garden of the church from the wilderness of the world, his concern—unlike Jefferson’s— was for the integrity of the faith. Williams sought to prevent any sort of religious establishment having too close an association between church and state because he did not want to imperil the church. How does a shift in emphasis from the free exercise clause to the establishment clause in the First Amendment help us negotiate the apparent conflict between constitutional rights and religious freedom? It serves as a reminder to religious groups that religious values are not the cornerstone of constitutional values, even though the two have rarely been in conflict. My rights as a citizen are granted by the Constitution, including the rights of assembly and association, not by religious entities. And when those values diverge, as at times they must, religious groups have no right to cry foul. That is the price of disestablishment. But there is a further advantage as well. Relieved of the burdens of religious establishment or even the maintenance of moral hegemony, religious groups have the opportunity to more effectively exercise their prophetic calling. No longer must they function as stewards of the status quo. As constitutional rights expand, the systems of values people of faith espouse are no longer coterminous with those of the state. Therefore, they no longer bear responsibility for shoring up morality in the public square. They can agitate instead from the margins, not within the corridors of power. As Roger Williams recognized long ago, therein lies true freedom of religion, a faith not tethered to the vicissitudes of legislation or court rulings or political intrigue or even public sentiment. This is the circumstance in which people of faith can exercise their prophetic voice. Religion, after all, always functions best from the margins, not in the councils of power. The Mormons provide a good example of these dynamics. Arguably, no one in American history took fuller advantage of the free marketplace of religion carved out by the First Amendment than Joseph Smith Jr. Mormonism was nothing if not a populist movement, from the Book of Mormon itself to the new religion’s appeal to the disinherited. And the Church of Jesus Christ of Latter-day Saints was hardly an established religion. The Mormons, in fact, illustrate my earlier point about the slow extension of equal rights guaranteed under the Constitution. But Mormonism thrived on the margins. The 19th century was the golden age in the development of Mormon theology and its expansion, both numerically and geographically. When Mormonism sought to take on the trappings of theocracy, however, matters did not go so smoothly. Absent a hegemonic faith and a homogeneous society, which of course is what Brigham Young sought in Deseret, what we might call “civic Mormonism” has faltered— in Kirtland, in Nauvoo, in Deseret, in Utah – even to the present. I think it is now widely acknowledged, for instance, both inside and outside the church, that Mormon support for California’s Proposition Eight was a serious miscalculation. Another way to understand the shift I am proposing lies in H. Richard Niebuhr’s durable Christ and Culture paradigm. The days of “Christ above Culture” slipped away with the Protestant Reformation, and the “Christ the Transformer of Culture” position preferred by many who espouse “traditional values” is no longer tenable or realistic in a pluralistic society. Many people of faith now find themselves in the “Christ against Culture” paradigm. I acknowledge that, for many religious groups, adopting the posture of outsiders, strangers in an alien land, might be jarring to their self-identity. Whereas the Church of Jesus Christ of Latter-day Saints would merely be reclaiming a previous identity, other groups have long regarded themselves as the embodiment of “American values.” But America is changing, as the aforementioned statistics attest. For some, that is cause for celebration; for others, lamentation, for change is always unsettling. This sense of displacement, for instance, for many years fueled the passions of the Religious Right. The invoking of the Religious Right calls to mind another circumstance that compromises religious organizations’ complaints about persecution at the hands of the government— and that is the issue of public subsidy of religious or faithbased institutions in the form of tax exemption. This, not abortion, is the issue that lay behind the rise of the Religious Right in the 1970s. The 1971 Green v. Connally decision in the district court for the District of Columbia held that, under the provisions of the Civil Rights Act, any organization that engaged in racial segregation or discrimination was not, by definition, a charitable organization and therefore had no claims to tax-exempt status. Following that ruling, the Internal Revenue Service began making inquiries about the racial policies at so-called segregation academies, including Bob Jones University and Jerry Falwell’s Liberty Christian Academy. Evangelical leaders cried foul; Falwell himself complained that in some states it was easier to open a massage parlor than a “Christian” school, by which he presumably meant a segregated school. The leaders of the nascent Religious Right protested that they received no funding from the government; therefore, the government had no right to tell them how to manage their affairs—whom to admit or not admit, whom to hire or fire. That argument is not as specious as it sounds. I remember very clearly from my childhood the visits of Bible institute presidents to our evangelical church. They were trying to recruit students and raise money, generally during the Sunday evening service. Each had his own spiel, of course, but one of the staples of every pitch was the refrain that we don’t accept money from the government. Well, yes, up to a point. That argument, however, ignores a crucial point: Tax exemption is a form of public subsidy. Citizens in every community subsidize religious and other non-profit organizations with their taxes. I’m not arguing here whether or not that is good or appropriate; there are powerful arguments on both sides. But make no mistake, tax exemption is public subsidy, and if religious organizations truly want to exempt themselves from t
e legal mandates they profess to abhor, their argument would carry a great deal more credibility if they refused the public subsidies of tax exemption.
Religion functions best from the margins and not in the councils of power.
Adopting the mantle of disestablishment, as alien as it may seem to some religious groups and people of faith, allows them more effectively to exercise their prophetic voice. This posture relieves them of the responsibility of defending the established order or supporting such silliness as contemplated by the state of Tennessee in designating the Bible as the state book. All of this brings us back to Roger Williams and his concern to shield the garden of the church from contamination by the wilderness of the world. Too close an association between these two entities trivializes the faith. In 2001, Roy S. Moore, chief justice of the Alabama Supreme Court, installed a two-and-a-half-ton granite monument emblazoned with the Ten Commandments in the lobby of the judicial building in Montgomery. At the same time, Moore, who claims to be a Baptist, refused any other religious representations in that space. The case went to court, and I was asked to testify, which I did gladly, arguing that the establishment clause of the First Amendment had served religion well throughout American history and that any attempt to designate any one religion as favored by the state undermined the integrity of the faith. After Judge Myron Thompson ruled, correctly, that what had come to be known as “Roy’s Rock” violated the establishment clause of the First Amendment, he ordered it removed. As workers were preparing to do so, one of the protesters screamed, “Get your hands off my God!” Unless I miss my guess, one of the commandments etched into the side of that granite monument said something about graven images. Isn’t it ironic that Roy Moore, the idolater of the Bible, apparently failed to read it? And that was precisely Roger Williams’s point about protecting the faith from fetishization, from too close an association with the state. More and more, people of faith find themselves strangers in an alien land— not unlike Jesus and his followers in first-century Palestine or, for that matter, Joseph Smith and Brigham Young and their followers in 19th century America. The path of faithfulness lies not in shoring up some approximation of theocratic order; Jesus, after all, explicitly disavowed any such schemes with his declaration that his kingdom was not of this world and that his followers should render to Caesar the things that are Caesar’s. Pursuing a path of prophetic faithfulness outside of the corridors of power may require a reorientation for people of faith, especially for those who have nurtured the illusion that they embody American values. But therein, not in the construction or the defense of a theocratic order, lies the path of faithfulness. As Jacques Ellul noted long ago, Jesus did not call his followers to be successful; he called them simply to preach the gospel, regardless of the consequences. That is the posture of faith for strangers in an alien land.
Randall Balmer is John Phillips Professor in Religion, Chair, Department of Religion Director, Society of Fellows, and Fellow, Ethics Institute at Dartmouth.
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