How Free Can Religion Be?
How Free Can Religion Be?
Randall P. Bezanson
Urbana and Chicago: University of Illinois Press, 2006, 286pp.
Bezanson’s book provides an insightful and accessible analysis of complex social and constitutional issues. Throughout the book, Bezanson demonstrates a deep appreciation for the difficult task that the Supreme Court faces in trying to strike an appropriate balance between religion and law. The core of legality is experience but not logic. The Supreme Court gives life to the law. Religion guarantees non-establishment and freedom from exercise and it represents the Supreme Court’s not the Constitution’s idea of religious freedom. The Supreme Court basis its decisions on the logic and reason of the history, text and purposes of the Constitution. To not do this is to fail to exercise its power properly and within necessary limits. The Supreme Court is largely loyal to logic and reason. However, despite this, it is also deeply divided. Congress cannot make laws respecting an establishment of religion or prohibiting its free exercise. Logic and reason usually mark the Court’s decisions, though they have competed at a fundamental level since the beginning of time.
There is usually a strict separation between religion and law. Freedom in America usually exists at an individual but not an institutional level. Churches consist of a group of like-minded individuals. Without the energy of individual acts of religious conscience, churches would ossify altogether. Ideas of individual liberty cannot flourish in a religious environment when the state can discriminate against an individual’s religious ideas and actions, denying them an equal place in the secular world. There are two visions of religious liberty in America that are not vying for dominance. One focuses on the institution of religion while the other focuses predominantly on the individual. These two views arise from conflicting core premises and they cannot be easily reconciled.
The equality principle of religious liberty cannot maintain any separation between church and state. What the law of religion guarantees is ambiguous, ungirded by deeply conflicting premises, marked by judicial uncertainty and freighted with detailed and technical distinctions. Thus, religion operates on two levels: at the institutional and the structural level in the case of non-establishment and at the individual and libertarian level in the case of free exercise. The ambiguity is not entirely the result of indecision or the work of a Court in transition. Instead, it is inherent in the very nature of what religion guarantees. Both the institutional and the individual levels of free exercise seem to matter.
When religion and legality intersect, it causes an ambiguity since the balance between non-establishment and free exercise is what divides the Court most clearly at its extremes. To focus only on these two sets of views would be to miss another larger issue which is underlined by the fact that experience must be leavened by reason, text and logic. For instance, can the Court really decide whether a December display of a Menorah and a Christmas tree are any differently religious than a display of a creche? It is entirely possible that the real fight on the Court, and the real source of confusion occurs as a result of the disagreement over the role a text-and-history-bound judicial branch can play in setting the rule for religious freedom and the relationship between secular government and religious beliefs and institutions. Thus, areas of ambiguity are inherent in the very idea of religious liberty in an organized society. Americans are a religious people. That means that questions of religion are never far from our minds and hearts. Answers to these questions are acts of belief. How then can obedience to god be reconciled with obedience to human institutions, including most notably the authority of the secular state?
Bezanson believes that obedience to God can be reconciled with obedience to human institutions. America has committed itself to a society in which churches coexist with one another and with all other institutions and peoples. This coexistence is not just a concession, but also a belief that a richer social order will result. But coexistence takes a lot of hard work to achieve. The place of the individual’s person’s religious freedom must be strongly guaranteed. Religion consists not of churches or doctrines or texts but of an individual’s free-willed beliefs. Without individual religious freedom, government could simply compose the rules of coexistence of churches and institutional religions and enforce them. Under such a regime, churches would take their rightful place in the social order, play out their social roles, and persist. However, this would merely cause stasis, and nothing more.
What is needed is a social and legal order that can adapt itself to changing circumstances, that can preserve space for evolution of religious institutions at the hands of religious people, that can leave the needed play in the joints, and that can live with a certain degree of ambiguity. This can occur only by loosening the legal and social constraints at the appropriate times. Such a government cannot be hostile to religion. However, neither can it be neutral to religion. Instead, such a government should facilitate religion, leaving it room to live or die, and to grow or change on its own. In facilitating religion, government can’t intrude and mustn’t control. Instead, it must keep to its distinct and secular sphere. Thus, religion and law cannot occupy mutually exclusive spheres. They very often overlap. Thus, when law and religion overlap they must respect the distinct responsibilities of each. Bezanson believes that such a system would be ambiguous and messy, informed by general principles yet operated by the demands of practicality and uncertainty, and marked by atomized choices. America is the most religiously diverse, religiously preoccupied and yet religiously free country in the world and in all of human history. God guides events and governs our actions, yet we follow the rules laid down by the secular state. Thus, Bezanson believes that it is possible to embrace two these inconsistent ideas at the same time. This is why religion is truly free in America.
Irene S. Roth
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