by David Sehat. New York: Oxford University Press, 2010. 368pp. Hardback $ 29.95/£18.99. ISBN: 9780195388763.
Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff [at] jsums.edu.
David Sehat’s book, THE MYTH OF AMERICAN RELIGIOUS FREEDOM, is an engaging exploration of the continuous and seemingly irreconcilable debates over the meaning of the free exercise clauses found in the federal Constitution and in numerous state-governing documents. An intellectual historian, Sehat argues that many of our current debates between the political left and the right, particularly the Christian right, are situated in both groups’ mythologizing the Founding and the free exercise clause, as well as in their interpretation of religious liberties. Ask any schoolchild or most educated adults about the origins of our nation and most Americans will reply that a group of colonists, persecuted for their religious beliefs and practices while in Europe, came to the New World seeking religious liberty. While they initially preserved their own religious beliefs, they soon came to believe that their sole salvation would be in the protection of the religious beliefs of all. In the retelling of this myth, conservatives focus on the centrality of personal religious belief in this narrative and liberals emphasize the emergence of liberty of individual thought. THE MYTH OF AMERICAN RELIGIOUS FREEDOM argues that not only are both versions, and most Americans, wrong with their iterations of history, but that these competing myths can be traced back to the late Eighteenth Century and through the intervening decades. Because political adversaries are using identical language to convey vastly different ideas, the conflict between them is inevitable and dramatic. Sehat contends that if there was a more accurate understanding of the notion of “religious freedom” as it was initially conceived and if both parties understood the suppositions beneath their contentions, at a minimum, a more civil discourse could emerge and ideally we would generate a better understanding of our own history of religious conflict.
Conservatives have understood religious freedom as “the ability of believers to bring their beliefs into the public square, thereby sustaining the nation’s moral foundations” (p.3). Liberals, on the other hand, “[complain] that the introduction of religion into public life violates the separation of church and state set out in the Bill of Rights and endangers the Founders’ conception of religious freedom which has served us so well for more than two centuries” (p.3). Sehat argues that both constructions of the Founders’ world is flawed, that while liberals and conservatives cling to a history of religious freedom, which requires protecting, both arguments are fundamentally erroneous. This mistaken interpretation is primarily seated in both sides' unwillingness – he claims “inability”– to explain the historic coercion surrounding religious practice [*509] and values evidenced throughout our history.
We will never understand the source, the development, or the stakes of the debate about religion in public life until we acknowledge that for much of its history the United States was controlled by Protestant Christians who sponsored a moral regime that was both coercive and exclusionary. Proponents of the moral establishment claimed that religion was necessary for the health and preservation of the state. But their understanding of religion was decidedly narrow…. Religion usually meant Protestant Christianity. Catholics, Jews, Mormons, and freethinkers, along with a host of others who purportedly failed to demonstrate proper morality, faced active legal and social discrimination that continued in various forms until the U.S. Supreme Court began dismantling the moral establishment, after the 1920s. This book reconstructs that establishment’s beginning shortly after the passage of the First Amendment, its historical development and intellectual rationale over the long nineteenth century, and its ultimate dismantling. When the moral establishment went into decline, the Religious Right mobilized to restore it, leaving us where we are today (p.8).
While I would like to see this theoretical framework more fully explicated and supported in the book (it occupies nine scant pages) the author instead retells the intellectual history of America as a battle between those advocating the legal establishment of morality and those seeking individual freedoms.
Part I of the book, “Moral Law,” finds that the debates surrounding state constitutional protections of religious liberties demonstrate that while the Founders agreed to a concept known as “religious liberty,” there are clear cleavages in its definition. Some perceived religious liberties as protecting the privileged position of Protestants; the state was compelled to protect organized religion because of protestant Christianity’s maintenance of social stability and republican values. Others perceived this same liberty as protecting individuals from being coerced to belief from the state or by religious institutions relying on the power and authority of the state. It is advocates of this second view, with its fear of religious enthusiasm and zealotry running unhampered through the masses, who began articulating the separation of church and state. Sehat references, rather than carefully explicating, this conflict as a tension between republicanism and liberalism that will haunt the nineteenth century. These state-level battles culminate in the national discussion of the U.S. Constitution where James Madison’s political philosophy assumes a prominent role and where compromises surrounding the Bill of Rights portray the aforementioned tension in which Madison articulates the liberal position and Thomas Jefferson, among others, make a republican argument. Agreement coalesces around the prohibition of the state funding of religion, but states simultaneously institutionalize religion by incorporating its values in their constitutions and statutes (e.g., oaths of office, pledging of beliefs, laws prohibiting blasphemy). As Sehat notes, “[m]oral law became the mechanism of religious control” (p.69). [*510]
In Part II, “Challengers,” Sehat explores the threats to the moral establishment, and particularly identifies the abolitionist and feminist movements as representing its greatest challenges. Both slavery and coverture provided means of controlling the behavior of groups whose independence would oppugn and destroy the status quo. Through the institution of slavery, “[t]he legislature and the courts juxtaposed Christianity and whiteness with heathenism and blackness to muster support for slavery” (p.74), and by the tradition of coverture, “[w]omen were seen as agents of moral reproduction, yet somehow they were not considered morally competent to emerge from the shadow of their husbands” (p.104). Sehat reconstructs the history of both movements and their intersections (Sklar 2000) as a liberal challenge to the moral establishment, in which religious freedom and later freedom of conscience threatened the republican values of the state.
In the third section of the book, “Retrenchment,” Sehat examines the methods through which the Civil War and its aftermath united both northern and southern elements of the moral establishment in their common fight against the individual’s autonomous ability to determine their own morality. Specifically, he recalls that those who advocated individual liberty split over the exclusion of women from the Fifteenth Amendment, leaving the feminist movement severed by internal dissension over strategy, goals, and its own racism. Simultaneously, the North and South come to an agreement over the moral establishment particularly regarding African Americans, for which he uses the work and rhetoric of Booker T. Washington as an example. During this era, the moral establishment is strengthened as they find ways to successfully counter the more individualistic arguments made by abolitionists and feminists in the years preceding the Civil War.
Moral establishmentarians had long dismissed the assertion that religious liberty entailed freedom from religion in public life. They asserted instead that it required the freedom of believers to bring their religion into public life to establish an ordered society . . . . It redefined behavior that dissenters considered intolerant as a necessary expression of an ordered society founded upon a religiously based morality (p.155).
As the moral establishment gained power, Sehat tells a story of coercion of Catholics, particularly in the context of the Blaine Amendment and the limiting of state-funded Catholic education, Mormons in REYNOLDS v. UNITED STATES (1879), women in the use of the Comstock Laws to control reproduction and sexuality, and the statutory constraint of other free-thinkers of the era.
In Part IV, “Fragmentation,” Sehat applies his model to the twentieth century where he examines the methods by which both the religious right and the increasingly, but not wholly, secular left redesigned their arguments related to individual liberty. As with the earliest part of the book in which the Founding of the nation is examined, most of these chapters are a survey of the intellectual history of the era with a focus on this tension between those seeking to establish morality through public policy and those desiring to expand the scope [*511] of an individual’s personal liberty. More than in the earlier sections of the book, Sehat focuses on the role that he perceives that the Court plays in the mid-twentieth century in defining not only the terms of the debate but in making liberals temporarily victorious and thereby mobilizing a resurgence of new coalitions of conservative Catholics and Protestants. It is in CANTWELL v. CONNECTICUT (1940) that Sehat places the Supreme Court’s turning point in radically protecting minority perspectives. In particular, he argues that in CANTWELL the Court “weakened the distinction between belief and action,” “began backing away from the idea that the state could define religious,” and “began to limit the police power of the state as established by common law” (p.223). From this early decision, the Court began the famous expansion of personal liberty throughout the mid-century, instigating, in Sehat’s fairly singular analysis, the rise of the modern evangelical movement, which feared the increasing secularism they were observing in the nation. He also notes that the framing of the myth of religious freedom that this book attacks received its clearest articulation and promulgation by the Court, particularly in Justice Rutledge’s dissent in EVERSON v. BOARD OF EDUCATION (1947). Rutledge asserted that the First Amendment had always been understood as creating “a complete and permanent separation of the sphere of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion” (p.237). By adopting Madison’s philosophy of separation of church and state as historic narrative, Rutledge ignored much of the Nation’s political and legal past. For Sehat, it will be the Supreme Court that adopts this version of the Free Exercise myth as our historic past.
The Court’s invocation of the myth of American religious freedom instead positioned it as the conservative keeper of a unique American tradition that countered that of godless communism. In this way, the Court forestalled criticism that it engaged in social innovation that might lead to a secularized public sphere, since it acted only as a defender to incursions on American freedom that, it claimed, had been well established. This introduced intellectual instability in addition to historical falsehood into the evolving liberal jurisprudence, both of which showed the limits of mid-century cold war liberal thought. Postwar jurisprudence, while continuing to dismantle the moral establishment, lacked any apparent intellectual framework. It enunciated a principle of separation but then did not consistently follow it in practice. Without a clear sense of what it was doing and why, the Court’s opinion became contradictory, yielding a confusing body of religious liberty jurisprudence that never quite acknowledged the moral establishment that the Court had begun to dismantle (p.239).
Sehat continues this analysis by considering a number of the leading cases expanding individual rights related to issues of: race (LOVING v. VIRGINIA, 1967); freedom of religion (TORCASO v. WATKINS, 1961 – the freedom to not believe in anything is covered by the free exercise clause); and, the right of privacy (GRISWOLD v. CONNECTICUT, 1965). The exception [*512] to this trend of rights expansion was found in realm of gender (consider HOYT v. FLORIDA, 1961). According to this portrayal, the response to these cases was the construction of the Moral Majority coalitions and the constitutional backlash revealed in the decisions of the Burger and Rehnquist courts. For those advocating the moral establishment, the desire to preserve America required the unification of evangelicals, fundamentalists, and conservatives under a common political agenda and the creation of a new theory of originalism by the conservative justices on the Supreme Court.
As the Court trended conservative, its decisions became more fractured, and the high level of agreement characterizing the 1950s and 1960s became rare. Yet conservatives were able only to chip away at liberal decisions, never to completely rid jurisprudence of liberalism. Conservatives continued to use history to buttress their claims to originalism, but its use was often an empty gesture to mask an ideological agenda. As conservatives increasingly turned to history, liberal jurists began to move away from the false history that had accompanied earlier decisions and instead began to analyze the historical claims that conservatives were making. In the process, the debate over law became as much a debate over history (p.269).
For Sehat, this interpretation of American constitutionalism has resulted in a number of misapprehensions that have simultaneously downplayed the role of religion in our nation’s history and the role that state coercion has played in sustaining this power. While in many ways this is a compelling history and is engagingly told, this analysis suffers from the same methodological risks as do all works that attempt this approach. By using one interpretative lens to explicate over two hundred years of history, competing interpretations are ignored and events, persons, and decisions which challenge the narrative framework are excluded. A second danger is that of assuming causation as opposed to mere correlation; events in close propinquity are too frequently assumed to have causal relationships as opposed to simply sharing a similar political and intellectual context. Despite these liabilities, which I attribute to differences in disciplinary priorities, this excellent book advances an interesting twist on the traditional legal interpretations of the free exercise clause and makes a compelling case for a careful reexamination of our assumptions regarding its history. The compliment I must pay Sehat is that more than any other book I have read over the last six months, I find myself continuously referencing this analysis and considering his arguments; it is worthy of a careful read. My only hesitation in unequivocally recommending this for an advanced undergraduate or graduate seminar is that the limited application of the theoretical framework may make its historical detail a bit tedious for students with a weaker background in U.S. history.
Sklar, Kathryn Kish. 2000. WOMEN’S RIGHTS EMERGES WITHIN THE ANTISLAVERY MOVEMENT, 1830-1870. Boston: Bedford/St. Martin’s. [*513]
CANTWELL v. CONNECTICUT, 310 U.S. 296, 1940.
EVERSON v. BOARD OF EDUCATION, 330 U.S. 1, 1947.
GRISWOLD v. CONNECTICUT, 381 U.S. 479, 1965.
HOYT v. FLORIDA, 368 U.S. 57, 1961.
LOVING v. VIRGINIA, 388 U.S. 1, 1967.
REYNOLDS v. UNITED STATES, 98 U.S. 145, 1879.
TORCASO v. WATKINS, 367 U.S. 488, 1961.
© Copyright 2011 by the author, Michelle D. Deardorff.