Why Religious Freedom?

The latest draft executive order to be leaked concerns “religious freedom.”  (The Nation provides a useful analysis, with a readable version of the memo at the end of the article.)  Not surprisingly, it looks like an effort to restrict the freedom, religious and otherwise, of everyone except Christofascist types.  Indeed, given the trouble that religion so often causes, one is moved to ask why the framers of the US Constitution saw fit to give special protection to religion.

     This question is commonly understood as a question about what important or special value (freedom of) religion has.  But there is a problem with thinking about religious freedom in this way.  For most people who subscribe to some religious doctrine or other, the special value of that religion is that it is (believed to be) true.  But the Constitutional bar to an establishment of religion or the prohibition of free exercise would seem to be incompatible with this notion of religion.  If some religion merits protection because it is true, then all the other religions do not merit protection.

     Perhaps it is not some special value that religion has, but rather some particular vulnerability that entitles it to Constitutional protection.*  The grisly spectacle of people mistreated–ridiculed, tortured, immolated–because of their religious beliefs and practices is pervasive throughout history and across cultures, and it is horrifying.  And what is most horrifying about it is that religion is not only the target of discrimination; it is most generally the source of religious discrimination, as well. 

     The men who framed the US Constitution and the Bill of Rights were witness to the 1500 years of slaughter and mayhem that internecine conflicts within Christianity had inflicted on Europe.  Giving Constitutional protection to religious freedom was in part an attempt to prevent the same thing from happening in the United States.  And it has worked well enough, as well as one can expect from a mere human effort to deal with such a volatile matter as religious zeal.

     But, like all the rights referenced in the Bill of Rights, religious freedom can only be maintained if there is a strong commitment to it.  And the commitment to religious freedom is eroding badly these days, among our leaders and among the populace at large.  This happens with some regularity in the US; some religious urge erupts into our political culture and exploits every opportunity to create conflict.  These days, our culture is disrupted by hysteria over Muslims, and the insistence by Christian extremists that they be allowed to reap the benefits of liberal society without accepting the constraints of that society.  But there are a couple of ways in which our current trouble is different from past eruptions of religious hysteria.

     First, it follows hard on the heels of our defeat by terrorists.  You read that right.  Too many Americans are terrified, so terrified that we can’t even behave decently anymore.  And that is what terrorism is all about.  Second, our national government is pursuing a policy of aggressively exploiting this terror in order to establish what is looking more and more like a full-blown fascist state.  I am not a historian, but I am a life-long student of US political culture.  It looks to me like we are as close to falling into authoritarianism as we have ever been.

     And as the national government exploits religious extremism and fear at home, it pursues policies, like the immigration ban, which simply exacerbate international religious conflict.  One might even speculate that Trump and his cronies are trying to fire up a religious war.  Permanent war is a tool by which the fascist maintains control, and religion has always been an excellent reason for war.

     I explore the justification and scope of the Constitutional protection of religious practice more fully in this essay.  And in troubled times like these, I often find comfort in the wisdom of Frank Zappa.

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     *This idea is explored in some detail in Christopher Eisgruber and Lawrence Sager, "The Vulnerability of Conscience," University of Chicago Law Review, vol. 61(1994).