In A.D. 313, the Emperor Constantine instituted a new, revolutionary tactical policy regarding the problem of Christianity in the Roman Empire: He would try to eliminate its corrosive, subversive presence by instituting the new idea of "religious freedom." He would "tolerate" Christianity into irrelevance, and enlist its support for doing so. This was the conversion of Christianity to "Christendom," and it solved a centuries-old problem. Some 1,500 years later, Christendom rededicated itself to authentic Constantinian faith when, in 1791, America's Bill of Rights was added to its fledgling Constitution. Like the original version, this new Constantinianism managed to convince Christians that their interests were the same as the interests of the state; that they had been merged in such a way that Christians need not have any fundamentally presumptive suspicion toward the state. And like the original version, this meant of which it emerges. In this case, freedom of religion was for the purpose of enlisting Christians to sanction the ends of the Emperor. And the witness of the Church against the violence of worldly power all but disappeared. Religion was now "free, " but only as defined by the regime, and on the terms the regime established for it. The cost of that freedom was that Christianity became a tool of the Empire, for the Empire to achieve its ends. The critical distance necessary for the church to stand in judgment over the Emperor collapsed. Constantine could do as he willed, secure in the knowledge that the subversive witness of Christianity had been tolerated away.
Now compare the words of Constantine, as quoted above, with these: "Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.... Reason & experience both forbid us to expect that National morality can prevail in exclusion of the religious principle. 'Tis substantially true, that virtue or morality is a necessary spring of popular govemment. The rule indeed extends with more or less force to every species of Free Government." Here is another example of a political leader recognizing and advocating religion as a tool of the regime. Not the truthfulness of one or any religion, but its usefulness, is why we want it to be "free." And, of course, that usefulness is for the aims and goals of power and empire. The dispositive implication is very dear: Religion which does not advance the good of the regime - including the regime of religious liberty which privatizes religion - is not legitimate religion. Religion has a purpose, yes: to support and further the goals of the state. But as a tool of the state, religion must be crafted and forged according to the needs of the state.
The words above are from George Washington, the Father of Our Country, in his Farewell Address. For Washington as for Constantine, "religious freedom" is part of a larger political story which imbues it with meaning and from which it cannot be extricated. Religious freedom is not the freedom of the church to name and maintain its own mission. Rather religious freedom is a "myth," invented for the purpose of telling and sustaining the story of American liberal democracy. There is no such thing as "religious freedom." There are only theories of religious freedom, advanced and protected by the regime in power, for its purposes and goals.
In one sense, this is deeply disturbing to the religious person; his religion is reduced to a tool of the regime, and thus loses the integrity of its own mission, which should include standing in judgment over the regime it has now been enlisted to support. But in another sense it is no big deal that there is no such thing as religious freedom. It is a myth, and wishing it were otherwise will not make it so. Religious freedom is but one aspect of the central audacious presumption of modem liberalism: that it has found a set of objective neutral principles, by which objective, universal judgments can be made. Thus, religious freedom is a universal good, according to liberalism, every bit as helpful to the atheist as to the priest. Religious freedom is, according to the larger liberal myth, the institution of neutral procedures, not substantive goods. But, of course, it is no such thing. "Religious freedom" is particular to the goods of the regime of which it is an invention. And as such, there is no such thing as religious freedom.
The first tenet of the liberal myth of religious freedom is the shift from an idea of the freedom of the church to the freedom of the individual. Consistent with its overall program of the atomization of human life, liberalism first tells us that authentic religious liberty is not seated in the right of a church to do as it must according to its doctrines and traditions, but rather in the right of the person to do as his conscience dictates. Where the church, acting freely, interferes with the free act of the individual conscience, the church has actually violated religious freedom, according to the liberal myth. Not only has the state no concern over the salvation of any man's soul; in the liberal myth, neither does the church. Any church which has the audacity to presume to define how its members ought to believe or act violates the American myth of religious liberty. This is most especially true when a church insists that its members act contrary to acceptable political or legal opinion. The American myth insists that private opinions - especially religious ones - are permitted public expression only within the boundaries that the myth has set. Not to obey these rulesis to risk public censure.
We see this censure, for instance, when a Catholic bishop dares to give moral instruction to Catholic politicians and expects them to obey this instruction in all spheres of their lives, public and private. A famous example occurred in 1990, when the Cardinal Archbishop of New York, John O'Connor, wrote the following in the archdiocesan newspaper, Catholic New York: "Where Catholics are perceived not only as treating church teaching on abortion with contempt, but helping to multiply abortions by advocating legislation supporting abortion or by making public funds available for abortion, bishops may decide for the common good [that) such Catholics must be warned that they are at risk of excommunication. If such actions persist, bishops may consider excommunication the only option." As a statement of church teaching, the Cardinal's words are actually notable for their circumspection and caution. He is merely voicing the rather noncontroversial point (by the church's self-understanding) that advocating doctrines contrary to the church's teaching puts one at risk of excommunication. It has long been a staple of church teaching that deliberate doctrinal deviation - the subject of the Cardinal's statement - is a far more serious matter than moral failure. Such deliberate deviation has always been a condition for being excluded from communion with the church.
But, while simply a statement of elemental church teaching, O'Connor's essay created a public and political firestorm because it violated the Ameri can myth of religious liberty. The New York Times ominously editorialized that, by suggesting that Catholic politicians ought to obey Catholic teach ing, the Cardinal is "tearing at the truce of tolerance that permits America's pluralist democracy to work." In an earlier editorial, the Times opined: "To force religious discipline on public officials risks destroy ing the fragile accommodations, that Americans of all faiths and no faith have built with the bricks of the Constitution and the mortar of tolerance."
In other words, the Catholic Church will be tolerated only insofar as it makes no demands on the consciences of its members, especially when they might exercise that conscience in the legislative chamber. ("Stop leaning on Catholic public officials now working to heal, not divide, the rest of society," orders The New York Times.) The reason is that such demands are deemed to be at odds, not simply with particular policy positions, but with the very institution of American religious liberty. The Times intimates that Catholic bishops flirt with violating the U.S. Constitution in such pronouncements as Cardinal O'Connor's. This was given clearer expression by Burt Neuborne, a law professor at New York University, as cited in the Washington Post. Cardinal O'Connor, said Mr. Neuborne, has done "more damage to religious tolerance in this society than he realizes. When you accept public office, you're not a Catholic, you're not a Jew. You're an American."
Perhaps the most hysterical response came from David Boldt of the Philadelphia Inquirer: "There's room to wonder whether the bishops fully understand the risk they run.... Their efforts reflect a lack of understanding as to just how delicate the balance between church and state is in regard to the Catholic church in America. The Roman Catholic church, it needs to be remembered, is quite literally an un-American institution. It is not democratic. The church's views ... are sharply at odds with those that inform the laws of American secular society. And its principal policies are established by the Vatican in Rome."
It goes without saying that there is a dark and vile intolerance behind these words. But while the particular expression is hostile and vitriolic, the opinion is an orthodox one in terms of the American myth of religious liberty. Boldt is correct about three things. First, America is a secular political culture which grudgingly tolerates religion only within particular boundaries, the legitimacy of which boundaries is immune from religious evaluation or judgment. Second, the Catholic Church is indeed an undemocratic institution. As such, its cardinal dogmas are not open to debate. (Not insignificantly, this is a feature which Catholicism shares with the American myth, democratic as it may claim to be.) Catholic dogma is not decided by plebiscite; and Catholic discipline is hierarchical and authoritative. Thus, third, as far as the Constitutional side of the "truce" goes, the Catholic Church (in principle, at any rate) is an un-American institution, This is not to say that it is anti-American, but rather that its self-understanding and structure are significantly different from America's that the state could proceed to protect its pursuit of domination without having to worry about the judgment of those who should have known better.
Up to A.D. 313 in the history of Christianity, the standing policy had been one of persecution. This nettlesome, fanatical Jewish sect was seen as a threat to the stability of the Empire, and therefore had to be eliminated. To be sure, the level and methods of persecution ebbed and flowed. But persecution did not work. In the words of Tertullian, "the blood of the martyrs was the seed of the church." Despite, or perhaps because of, the persecution, Christianity flourished in the Empire. So after more than 250 years of expensive, tedious persecution, Constantine tried a new tack. It was hard enough to hold an Empire together without the divisive presence of these petulant Christians. But rather than try to eliminate Christians, Constantine would try to strike a bargain with them that would effectively do the same. Rather than kill them, he would try to domesticate them. He would induce them to abandon their insubordinate witness against him, by joining their interests with his own. Constantine realized that he would never get Christians to bow to him under threat of death; he knew his history well. But maybe he could accomplish the same end by tolerating them. Perhaps they would bow to him - serve his interests, aims, and goals, while subordinating their own subversive witness to his needs - if he granted them religious freedom.
He did, and it worked. The best witness of this process is not the famous Edict of Milan, important as that was. Rather the new, successful policy is exemplified by a lesser-known document, also written by Constantine in 313, and directed to Anulinus, the prefect of Carthage, granting the clergy exemption from Imperial service: "It is my wish ... that those ... who are usually called clerics be completely exempt from public duties, that they be not drawn away from the service due to the Divinity ... but may rather fulfill the service of their own law without any hindrance. For it seems that, when they render the greatest homage to the Divinity, then the greatest benefits befall the commonweal."
Now what could possibly be wrong with allowing priests to be exempt from military, police, or jury service so that they could mind the altar and parish? Surely, this was a good thing. Well, no. Before the Edict of Milan, it never would have occurred to any Christian to work for the betterment of the Empire. Now it is assumed that all will, but that the clergy will be exempt so that they can concentrate on their ministry.
But what are they now ministering? Constantine enlisted the loyalty of Christians, not out of personal piety or religious faith (he probably never became a Christian himself, despite the prayers of his mother, St. Helen), but rather out of a tactical need to subvert their witness against the violence of his regime. Now that he was "tolerant" of them, Christians, Constantine hoped, would give theological sanction (not to mention manpower) to his plan to unify the Empire against his sometime partner, the treacherous Licinius. Blood was expensive; he needed peace at home to wage war abroad. So tolerating Christians was much more effective all around than killing them. Thus, the priest bowed to the Emperor, and Christianity has never been the same.
This is because, after the Edict of Milan, the church was no longer free.
Of course, in one sense, as now in America, the church did become "free" in Rome. Now Christians could worship in public. In some cases their property was restored, and they themselves began to appropriate pagan churches and basilicas for their own liturgy. But the cost was very high, and the corruption that followed was deep and broad. For the church was no longer free in the sense that it was able to name its mission, and to delimit the power of the state. This was its consideration in the new contract. Now the mission of the church was dictated by the needs of the state, and the church's authority was subordinated to the Emperor's. Of course, there were times when the Emperor bowed to the priest. And there were times when the church was a more powerful institution than the state. But what was its mission even in those times? It was to sanction power and empire, rather than to witness to the Kingdom of God.
The "freedom of the church" was no longer defined by the church. Now it was defined by the state, and thus it was no longer freedom at all. This is because "freedom of religion," like every political value, is determined by the context out self-understanding and structure. The Catholic Church is an institution which challenges (or ought to challenge) the particular American prejudice that religious opinions may not have expression in political life if those opinions seem to undermine America's myth of religious liberty.
Now one might reply that these are merely the opinions of law professors and op-ed writers, not the expression of law. This is not entirely true, but even to the extent that it is, it does not entirely mitigate the problem. No one will deny the evolutionary process of making laws in light of the Constitution, or of reading the Constitution in an expanded or modified way according to new circumstances, or of making laws that simply are not addressed by the Constitution, though they may be repugnant to certain segments of the population. The opinions of the Times's editors, Mr. Boldt, and Prof. Neuborne all make reference to the church's violating the spirit of the Constitution. In a country where persuasion is the essence of political and legal change, and where the power of the prevailing myths is jealously guarded, one cannot assume that such opinions will not have legal force in the future.
Consider the Supreme Court case Romer v. Evans, for instance, in which a law barring special. consideration of sexual orientation in discrimination complaints was overturned, in effect making homosexuals a protected class on a par with African-Americans or women. Justice Anthony Kennedy (a Catholic) wrote that the law "seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests." As Justice Antonin Scalia's dissent forcefully argues, Kennedy (writing for the Court) ascribes irrationality and hatred to those who hold to a moral principle which is at the heart of evangelical and Catholic sexual moral behavior. In Romer such moral opinion is excluded from the realm of legal rationality. And, of course, the position Kennedy derides is often, indeed nearly always, motivated by religious consideration. Here, such religious consideration is ruled out of court (literally!) as irrational.
Ironically, the logic of limiting the freedom of the church can easily be extended to the freedom of the individuals that the First Amendment ostensibly aims to protect. If the church may not insist that its members who are legislators oppose, say, abortion-rights legislation on religious grounds, then individuals who do oppose such legislation based upon church teaching may potentially be excluded. Consider, for example, the reaction of New York Congressman George J. Hochbrueckner to O'Connor's article: "If you follow this to its logical conclusion, you could well end up with no Catholic representatives in government. If you follow the teachings of the church, you get beaten up because you're a pawn of the pope. It's an untenable situation to put someone in." Thus, in the name of protecting individual religious liberty, individual religious liberty is abridged. It becomes fairly clear that the end at issue is not the expansion of religious liberty, but the protection of the state from religious influence.
And-this, I submit, is the real gravamen of the First Amendment religion clauses: not to protect the freedom of either the church or religious individuals, but to protect the state from influence by the church or religious individuals. So long as neither the church nor individual religious believers presume to judge the legitimacy of the regime or particular laws within the regime on explicitly religious grounds, both may enjoy tolerance; religious liberty is merely a means to the end of protecting the state. But when either church or individual presses the boundaries of the "truce of tolerance," the First Amendment's protection of the state from religious opinion will demand that the* religious opinion or activity be abrogated.
Thus orthodox Christianity, as an example, is in double jeopardy. First, it violates the spirit of the myth of religious freedom by claiming that it may discipline the consciences of its individual members. The church insists that religious freedom is freedom of the church. Second, the church insists that its faithful and obedient members must be allowed full participation in the political process even if that participation leads them to cast votes, formed by church teaching, that either affect non-Christians or undermine the state's necessary myths and rites, or both. The church violates both the end of the First Amendment and the means to achieving this end.
THE FOUR MYTHS
Four myths - here meaning things that just are not true - about the liberal myth need to be dispelled.
The first, usually propagated by religious believers, is that the American Founding is essentially religious, and that it grants the highest possible respect and liberty to religious belief, especially to orthodox Christianity; indeed that it must be seen as favoring religion over irreligion. While it cannot be denied that the populace at the time of the Founding was deeply religious, that is not the same as saying that the political and legal institutions erected at the Founding are themselves a product of religious belief (or even consistent with it).
The second myth understands the strongly secular basis of the Founding and celebrates it, but mistakenly thinks that it affords the orthodox religious person the same quality of freedom as the liberal religious or secular person. That is, those who hold the first myth argue that the Founding specifically intended to afford religious believers a strong, broad, and enduring basis for religious freedom, and that encroachment upon that is tantamount to an abandonment of the principle of religious liberty. Those who hold the second myth argue (correctly, I contend) that this view of the Founding is erroneous - that the Founding is indeed secular with secular intentions. But they are wrong to assume that, therefore, orthodox religious believers have the same political freedom and legal standing as nonbelievers or even those believers who are committed more fundamentally to religious indifference.
The third myth is that religious liberty is possible in any modem political regime. The first and overwhelming priority of any regime, including this one, is jealously to protect its principles, rituals, and institutions. One of those principles is a commitment to religious indifference.
By "religious indifference," I mean an attitude of adherence to one set of religious doctrines, but without any concomitant idea that this excludes the "truth" of competing and contradictory religious doctrines. While one might believe that religion has some value to human life, it really makes little difference what that religion is, just so long as that central notion is maintained. Religious belief which would presume to exclude the truth (defined as usefulness to the individual consistent with irrelevance to political life) of other religious belief is an exotic intruder into a realm of indifference. This is exemplified by Thomas Jefferson's quip that it neither picks his pockets nor breaks his leg how many gods his neighbor believes in. Religious opinion is not relevant to questions of politics and policy. Religious opinion that presumes to be so is, by definition, excluded from rational standing.
The fourth myth that needs to be dispelled is that religious believers are best off in a regime like this one that is so successful in propagating its myth of religious indifference; or worse, that such a regime is a product of Christianity. For Christians to assume that we have the "right" to enjoy the same liberty as everyone else is a prejudice borrowed from the alien liberal myth. And if the church assumes this prejudice it also assumes the philosophical and political story that informs it. Thus, it will find a need to give theological sanction to the very myth which has designs on marginalizing orthodox religious belief in America.
In other words, I do not believe that Christians have an interest in defending and furthering the idea of religious liberty as a political good. This is because the only regnant definition of religious liberty in American political discourse is one that has designs on marginalizing, if not eradicating as a significant presence, orthodox religious belief. The American story is not interested in persecuting Christianity to death. Toleration is a much more effective means, especially if the liberal regime is successful in enlisting Christians to give it aid and comfort.
American liberalism wants to diffuse and delegitimize Christianity as defined in any interesting way. The distinctly American brand of Romantic, Gnostic, and Pelagian Christianity does not endure against the liberal idea, but rather is a product of it. The condition of American Protestantism (and increasingly, Catholicism) is an indication of the success of the liberal myth. But even those Christian thinkers who take very seriously the claims of their faith are often unwitting participants in its undermining, when they assume that America is friendly toward them and, therefore, must be given theological sanction. Christians have no stake in the liberal argument for "religious liberty," because it is part of a larger political theory which is intent on ridding the regime of the insubordinate witness of orthodox faith.
But neither is there any other argument for religious liberty, if by that is meant the liberal myth of absolute political and legal neutrality, and thus of equivalent freedom for everyone. The choice between liberalism and religious orthodoxy is not a choice between reason and dogma; rather, it is a choice between competing dogmas. Or one could say that it is a choice between competing tradition-laden rationalities. In both liberalism and orthodox religious faith, the terms and conditions must be accepted as "reasonable" by one's interlocutor; and what counts as reasonable is precisely the same as what counts as a legitimate reason. And what counts as legitimate reasons are those assertions that are consistent with the discourse of the community by which one is formed. Christians have no stake in liberal religious liberty, because they have no stake in the tradition that makes it "rational."
The Catholic idea of religious freedom is neither interested in, nor capable of, securing the kind of undifferentiated religious liberty that liberalism (falsely) claims to have secured, because the Catholic principle recognizes that such an idea of freedom in a pluralistic political society is neither a possible nor even an ideal good to be pursued. Like liberalism, Catholicism is concerned with establishing freedom for itself, on its own terms; unlike liberalism, the Catholic idea attempts to ground derivative political-religious liberty for non-adherents in its own theology. But it makes no claim that this derivative liberty is not necessarily relativized and mitigated by the church's own precedent freedom, as granted by God. It does not claim to have a neutral principle. But this Catholic insistence that its own freedom is precedent does not, per se, distinguish it from liberalism. Liberalism, too, secures the highest level of religious liberty for its own adherents, while tolerating non-adherents within carefully constructed boundaries. The Catholic idea is simply more honest about the impossibility of securing, in principle, absolutely equivalent religious freedom for all people.
Christians have no interest in finding a political principle which facilitates disbelief in Christ; their interest is rather to induce people to believe by witnessing to the resurrection of the Christ who, Christians believe, relativizes all political theories, and who commands that people bind themselves to none - indeed that we bind ourselves to Jesus Christ alone as King. In this context Stanley Hauerwas and Michael Baxter, C.S.C., have recently concluded that we might have to leave the problem of church and state "profoundly unresolved." If a resolution implies that the theologian's task is to give theological approval to a particular regime, I would say that it is the mandate of the theologian (and the religious believer more generally) to leave the question profoundly unresolved. The history of attempts to resolve the question is the history of religious believers sacrificing the integrity of their faith to the interests of the political regime.
This is not to say that the theological vocation exempts us from struggling mightily to find a coherent philosophicalpolitical theory by which members of the City of God can understand their place amid the Earthly City. indeed it is precisely liberalism's presumption to have put all questions to rest (on its own terms and by its own rules) which compels the Christian to be highly suspicious of this "solution," and to work all the more diligently to find another more adequate theory particular to his own faith.
I conclude that there is no such thing as religious freedom, because there is no such thing as a neutral political or philosophical principle by which such a freedom can be judged. The American myth of religious freedom is as false as it is powerful.
Kenneth R. Craycraft Jr., formerly a professor of theology at St. Mary's University in San Antonio, Texas, is a law student at Duke University. He lives with his wife and five children in Durham, North Carolina. This article is excerpted and adapted from Craycraft's book The American Myth of Religious Freedom, to be published this month by Spence Publishing Company.
© 1999 New Oxford Review. All Rights Reserved. April 1999, Volume LXVI, Number 4.