The version of "religious liberty" currently promoted by the American right, best exemplified by the Hobby Lobby decision and the "Religious Freedom Restoration Act," is not only a recipe for future religious disputes and persecution. It represents an approach to religious freedom that has already created trouble. It was tried and abandoned so early in the American Experiment that most of us don't learn it in school. That's because the policy of providing religious groups extensive privileges or exemptions, rather than maintaining a neutral public square for all, failed before the Revolution.
Many of today's religious conservatives object to a religiously-neutral public square (where, for example, everyone has to follow the same laws). This, they say, restricts their free exercise of religion. They feel entitled to exercise their "sincerely held" religious beliefs in full. The problem with this is that when everyone enjoys maximal rights of free exercise, parties inevitably infringe on other parties' rights to free exercise. People of other faiths are not allowed to practice, or people are forced to abide by some religious precept which they do not believe. (For example, non-Catholics might not be denied certain health coverage benefits because of a Papal encyclical from 1968, forcing those non-Catholics to abide by the tenets of someone else's faith.) The approach that Justice Kennedy et al. have so improvidently revived grants certain parties (especially powerful parties) particular carve-outs or concessions, allowing them spheres of influence where they are exempted from the ordinary rules.
Some of the original Thirteen Colonies, of course, began as religious concessions on a grand scale, with particular religious minorities (in the 17th-century English context) granted their own domains to settle and govern. The most obvious of these are Puritan New England (settled by radical Congregationalists and Presbyterians), Maryland (granted to the Roman Catholic Lord Baltimore as a personal fiefdom), and Pennsylvania (granted to the Quaker William Penn as his personal property). This idea of colony-as-denominational-ghetto is, of course, an outgrowth of 17th- and 18th-century England's own sorry resistance to religious toleration, and its bias toward its own official Church; better to give the Quakers huge swaths of territory in the New World than to accept an England where all faiths were welcome.
But in all of these colonies, albeit in different ways, there was serious conflict between the locally privileged religion and people of other faiths. Maryland never quite got off the ground as planned, because so many of the colonists were resistant to the idea that Catholicism would be specially privileged; the colonists had to struggle with a superior civil authority in order to achieve a more level and neutral public square, with the same rules for all.
Puritan New England became a site of significant religious persecution, as the Puritans battled non-Puritan groups and one another. That Massachusetts, Connecticut, and Rhode Island are three different states is testimony to the Massachusetts Bay Puritans' gift for squabbling and schism. Connecticut and Rhode Island were founded by Puritan religious dissenters from Massachusetts. The struggle between the Congregationalists and Presbyterians was more peaceful, but bitter and socially divisive. And other religious groups had no rights at all. Baptists and Quakers were not only expelled from Massachusetts, but whipped for good measure; the Massachusetts Puritans insisted on their religious freedom not to intermingle with other faiths. The final extreme was the execution of some Quakers for being Quakers, at which point the royal government had to step in. A superior civic authority had to restrain the majority of the colonists from oppressing and persecuting their neighbors.
(One of the ironies that I've blogged about before is that Mitt Romney has enjoyed far more religious liberty in modern secular Massachusetts than he would have in colonial religion-in-the-public-square version. Secular Massachusetts elected him Governor; theocratic Massachusetts might well have hanged him. When modern religious conservatives complain that the "secular culture" oppresses them and limits their freedom, they have NO idea what they're talking about.)
In Pennsylvania, the case was most complicated, with the colony owned by a family of Quaker proprietors and the colonists divided between a Quaker-led political faction and a non-Quaker faction. But the special privileges accorded to the Quaker faith did, inevitably, burden the rest of the Commonwealth. The most startling example was the reluctance by the pacifist Quakers to countenance a colonial militia despite recurring armed conflicts with the French and the Native Americans. That left their fellow-colonists with the choice of going undefended, and thus dying for beliefs they did not share, or of shouldering the entire risk and expense of colonial defense themselves, without any contribution from the Quakers. In the 1740s Benjamin Franklin (nobody's military man) had to organize an all-volunteer militia without legislative sanction; essentially a self-funded private club to defend the colony. The Pennsylvania legislature wouldn't actually fund a state militia until 1756, two years after the French and Indian War had begun in Pennsylvania, and a year after the colonial commander of the British Army had been killed in action there.
The Quakers' special prerogatives could only be sustained by limiting the political freedoms of others. "Religious liberty" conceived as special privileges or exemptions for believers has repeatedly, inevitably, become an infringement on others' liberty.
Franklin stands as an exemplar of the other, more successful approach to religious freedom. Franklin advocated a public square open to all, with no special advantage or favor to any sect. This often put him at odds with the Quaker party in colonial politics. But, since it is the eve of the Fourth of July, let me be bold on the great Franklin's behalf: he was right, and his political opponents were wrong.
Franklin, who belonged to no organized church and swore to no particular creed, advocated a "secular" public sphere, the true religious equality where all believers (and unbelievers) are accepted by the commonwealth and all accept the same obligations to the commonwealth. Franklin remained on friendly terms, by his own account in the Autobiography, with every religious denomination in Philadelphia by donating money whenever someone was trying to build a church. He believed in a Philadelphia where faith was a choice and every citizen had the same freedoms, where every conscience was free and where no one had to bear the burden of a stranger's beliefs.
The William Penn model has failed, more than once. Now that the RFRA and five short-sighted Supreme Court justices have revived that long-discarded model, it will fail again, but only at the cost of burdening Americans' liberty. Under the Penn model, some people have more religious freedom than others; the rest of us are free to exercise someone else's religion. And that tends, always, to mean extra religious freedom for the rich and powerful at the expense of ordinary citizens' freedom. The rest of us are free to worship as my Lord Baltimore pleases, free to sacrifice to William Penn's lofty principles, free to have the chief shareholder of the corporation that employs us make moral decisions about our wombs. The model of "religious liberty" as special privilege always ends up giving all the liberty to the privileged.
That was not the America Benjamin Franklin wanted. And I say, this Glorious Fourth, that Benjamin Franklin was right in 1776, and right in 1787, and Benjamin Franklin is right today. Freedom of conscience is not about exemptions or concessions. Every conscience is, and can only be, equally free. And only a neutral public square, where all have equal standing, allows religious equality. Franklin was right, and history will continue to prove it.
Happy Independence Day.
cross-posted from Dagblog