The Free Exercise Thereof

This Essay is about the freedom of religion, which raises the possibility that it is also about the existence of God. Ever since the Supreme Court's first classroom prayer decisions, back in the early 1960s, constitutional scholars and judges alike have premised their analysis of religious freedom questions on assumptions about the existence of God that may fairly be described as skeptical--including, most emphatically, the stance that is usually, but inaccurately, referred to as "neutral." For example, in Lyng v. Northwest Indian Cemetery Protective Ass'n,(1) when the Court allowed the Forest Service to open to logging and roadbuilding lands that three Indian tribes held sacred, the Justices explained, with evident sincerity, that this result was neutral toward the religion of the tribes. But the effect of the logging, as even the Court conceded, was to devastate the tribes' religious traditions, which would hardly seem neutral from the point of view of the Native American believer. A member of one of the tribes surely would find the Lyng decision a horrific interference with religious freedom; and the fact on which the Court relied, that the destruction of the tribes' religion was accidental rather than intentional, would be scant comfort. Beginning in the mid-1980s, a Court majority led by Justice Antonin Scalia has followed the same "neutrality" principle in over half a dozen cases, ruling for the state on subjects ranging from forbidding the wearing of a yarmulke while in military uniform(2) to being forced, in contravention of religious principles, to obtain a Social Security number for a child.(3) The lower federal courts and, lately, the state courts have been caught up in the same trend, ruling for the state in one case after the other,(4) with the unsettling result that only religions possessing sufficient political clout to protect themselves are able to operate relatively free from state interference. So pronounced has the trend become that some scholars have pessimistically declared the death of free exercise of religion.(5) More cautious critics have argued that the Justices are undervaluing the benefits that flow from genuine religious diversity and that, far from being neutral, the courts treat the religions that lose these cases--usually, but not always, the powerless--as presumptively false.(6) Implicit in this last criticism is the notion that the Justices likely would treat their own religions as being at least potentially true. Conduct of the sort demanded by the Western tradition--especially the Protestant tradition--is immediately recognized as religious; conduct of other kinds is seen as marginal to religious life. Thus, the Native Americans involved in Lyng cannot really need the forests; worship is basically how one prays (so the Justices must have reasoned), and nobody is interfering with that. Beyond that, we are free to follow the teachings of our religions up to the edge of the law but no further--even though the laws are drafted with some religions, and not others, in mind. (Nobody proposes to build a road through the Cathedral of St. John the Divine.) Applied in this manner, the neutrality rule itself becomes a kind of establishment of religion: establishing freedom for religions that look and operate like the denominations of the American Protestant tradition. One need not accept the accuracy of this increasingly common polemical stance to recognize the seed of an important question. Some scholars have defended religious freedom on the ground that because the state does not know any facts about God, official skepticism (which carries an implicit official invitation to private pluralism) is the only sensible stand. But consider the matter the other way around: Over the years, any number of scholars--Stanley Fish is perhaps the most recent--have questioned whether a deeply religious individual can possibly be committed to the liberal values of pluralism and dialogue. The religiously devout, Fish argues, are less interested in participating in the marketplace of ideas than in shutting it down. …