Pagans and Christians in the City

by Steven D. Smith

  So the claim for religious accommodation is distinctive. Still, is there anything especially problematic about this distinctive sort of claim? Not under the traditional American approach to religion. That approach, as we have seen, resonates with a conception in which the political community does conceive of itself as subject to a transcendent authority—as “one nation under God.” And, as we have seen, the logical implication of that conception together with the decision to forgo any established church or official religious orthodoxy is that the determination of what the transcendent authority demands will be left to individuals. This is precisely the logic of Jefferson’s invocation of “Almighty God” who “made the mind free” and not subject to earthly authorities, and of Madison’s careful demonstration that every person’s first obligation (over which the state and civil society have no “cognizance”) is to God—an obligation, Madison stressed, that must be measured by the person’s own judgment.91

  Indeed, as we have seen, the basic conception of the community as under or subject to a higher authority (from which the rest of the accommodation logic follows at least naturally, if not quite ineluctably) has been reiterated repeatedly through the course of American history. Conversely, as that conception of the community comes to be displaced by a secular conception—“secular” in the immanent and positivistic senses—the acknowledgment of such a higher authority will come to seem offensive, unacceptable, almost incomprehensible. Deference to a higher power will now seem an impermissible relinquishment of the community’s complete sovereignty.92

  In the exercise of that sovereignty, to be sure, a tolerant and humane community will feel free to “accommodate”—to soften the harsh force of its laws by granting exceptions or indulgences or dispensations or variances—on all sorts of grounds. It may exempt people from otherwise applicable laws on grounds of physical impairments, or economic hardship, or medical necessity, or on any number of other grounds. But a plea for accommodation based on the claim that the community itself is subject to a higher authority? That sort of plea will stand out as distinctive, and distinctively objectionable. The community may choose to accommodate people, but it is the community—the sovereign community—that will choose to extend or not extend such accommodation. It will not accommodate in deference to some supposed higher authority.

  Unless it is taken as simply false or nonsensical, the Supreme Court’s objection to making a religious believer “a law unto himself” is best understood as a confused expression of that conception—of a conception of community that declines to acknowledge any higher authority.93 This shift in conceptions also helps to account for the increasing opposition to religious accommodation. In Smith, to be sure, the Court raised the “law unto himself” concern as an objection only to constitutionally mandated religious accommodation; the Court explicitly authorized legislative accommodation. But the logic (or illogic) of the “law unto himself” objection is not confinable to constitutional interpretation. Understood as a garbled expression of opposition to public deference to any higher or transcendent authority, the point should carry equal force in the legislative realm, and indeed in any aspect of the civic sphere. Hence, opponents of statutes (like the Indiana law) that would prescribe presumptive religious accommodation are simply taking the Court’s “law unto himself” concern to its logical conclusion.

  And yet the opposition, once again, is not to accommodation per se. It is opposition to religious accommodation specifically—opposition to accommodation based on the distinctive claim that the state is subject to a higher or transcendent power. Like an ancient Roman paterfamilias who aspires to be fair-minded and kindly but who brooks no challenge to his ultimate authority within the household, the sovereign secular community may strive to be just and humane, and it may (and does) accordingly grant indulgences and dispensations—accommodations—of various kinds. But it will bristle at claims for accommodation that deny the ultimacy of its authority.

  Transvaluation of Values: The Curious Career of “Freedom of Conscience”

  That statement, however, requires qualification, or at least clarification. A political community that refuses to recognize any higher or transcendent authority might still honor even transcendently religious claims asserted by individuals—not out of deference to a higher authority, but out of solicitude for the individuals who assert them. Thus, even the more aggressive contemporary critics of special accommodation of religion are typically respectful of conscience. And they may allow that religious claimants for exemption might often be able to bring themselves within the category of freedom of conscience.94

  The subordination of religion to conscience reflects a striking overall reversal—or “transvaluation of values,” so to speak—that is further indicative of a transformative shift in prevailing conceptions of the political community away from a transcendent and toward a more immanent conception. We can appreciate this transformation by considering three phases in the career of freedom of conscience. (This division into three phases simplifies a messier and more complicated history, obviously, but it is useful for expository purposes.)

  Trading Places: “Religion” and “Conscience.” In the earliest phase, conscience is inherently religious, and freedom of conscience simply means “that government must ensure a free response by the individual called distinctively by the Divine within,”95 as Marie Failinger observes. So “freedom of religion” and “freedom of conscience” are essentially synonymous and interchangeable ideas.96

  In phase two, the concepts become severable; and insofar as they are distinguished, it is freedom of religion—not freedom of conscience—that the law seeks to protect. And on the pertinent premises, this assignment of priority to religion over conscience is entirely logical. The rationale for accommodating religion, once again, as articulated by figures like Madison and Jefferson, is based on deference to an acknowledged transcendent authority. “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” So if a person asks to be excused from complying with Caesar’s law but does not base the request on any appeal to God, or to a higher authority, then the rationale for exemption simply does not apply. In this vein, Michael McConnell argues that the framers of the First Amendment consciously distinguished between freedom of religion and freedom of conscience, and they chose to protect only the former.97 As a historical matter, McConnell’s interpretation is debatable,98 but if the framers did what McConnell thinks they did, they would have been acting in wholly logical fashion.

  Even on these assumptions, though, “conscience” might seem close enough to religion that it still might receive legal protection through loose analogy and as a matter of legislative or judicial grace. Such a process is apparent in the much-discussed Seeger99 and Welsh100 draft exemption cases from the Vietnam War period. As enacted by Congress, the provision exempting “conscientious objectors” from military service had been explicitly crafted in theistic and transcendent terms.101 The Supreme Court nonetheless managed to extend the exemption to objectors who were morally serious but who were by their own account not theists; the Court achieved this extension by construing the statutory exemption to cover not only theistic convictions but also other convictions that had a “parallel [position]”102 in the lives of nontheistic objectors like Daniel Seeger and Elliott Welsh.

  The decisions in Seeger and Welsh also reflect the subtle transition from stage two, in which religion is distinguished from and privileged over conscience, to a third stage in which conscience comes to be privileged over religion. On the face of the conscription law and of the Court’s opinions, it was still “religion”—theistic, transcendent religion—that was the primary object of the law’s solicitude; mere “conscience” not grounded in traditional and transcendent religion received protection by extension and analogy, so to speak. In a sense, “conscience” piggybacked onto its more pious sibling: theistic “religion.” And yet in treating the two as close kin, so to speak, or in treating nontheistic conscience as ess
entially equivalent to or “parallel” with more theistic commitments, the Court tacitly demonstrated that in its view, what mattered was not an individual’s actual or perceived obligation to a higher or transcendent authority—because in that respect theistic religion and nontheistic conscience were not similar—but rather the depth or subjective importance of a conviction in the individual’s life. It was only on such an assumption that theistic convictions and nontheistic “conscience” would be relevantly “parallel.”103

  Officially and formally, in short, transcendent religion was still the primary value and conscience was the dependent partner. But in substance, it was conscience that the Court respected and deferred to.

  In a third phase, this reversal of what is primary and what is subordinate becomes open and explicit. The reversal is conspicuous in the position of those today who oppose religious accommodation but endorse freedom of conscience.104 In this view, conscience is the primary value, and the legitimate object of the law’s respect and protection; religion is the dependent partner. The former relations are reversed. In Seeger and Welsh, or at least in the explicit law of those cases, “conscience” could claim protection only by casting itself as “religious,” or as having a “parallel position” to religion. Now, in this final phase, it is religion that can receive protection only by casting itself as conscience. And insofar as government or the courts grant protection to religion, they do so not in deference to any higher authority, but rather because religion has a sort of “parallel position” to that of conscience in the lives of religious believers. Now it is “religion” that must plead for the piggyback ride.

  In fact, this essentially upside-down understanding unites many scholars and advocates today who appear to disagree (and who may think they disagree) about the obligation or permissibility of religious accommodation. Thus, contemporary scholarly debates in this field tend to center on whether there is justification for “special treatment” of “religion.”105 On one side, as discussed above, scholars who oppose religious accommodation say no—there is no adequate justification for giving special treatment to religion—but they may still be friendly to freedom of conscience. And they allow that religious claims might sometimes be recognized and respected—by placing themselves under the heading of “conscience.” On the other side, scholars who explicitly favor religious accommodation argue that there is adequate justification (such as the constitutional text itself) for giving special protection to “religion.”106 At the same time, however, these ostensible supporters of religious accommodation may condition their support on the assumption that “religion” will be construed very broadly to encompass just about any nontheistic but existentially earnest belief or value that could be described as “conscience.”107 Moreover, in justifying protection for “religion,” they rarely rely on the kinds of transcendent religious justifications that led Madison, Jefferson, and others to favor religious freedom in the first place; indeed, they may suppose that such justifications would be inadmissible in today’s pluralistic and “secular” civic society.108 Instead, they typically rely on more purely humanistic rationales, such as the importance of religion in the lives of believers, or the association of religion with personal autonomy or personal integrity.109 They rely, in other words, on the same kinds of rationales that contemporary thinkers are likely to give for respecting “conscience.” The labeling differs—and provokes apparent disagreement—but at bottom the positions are substantively very similar.

  Conscience and the Immanent Sacred. All of which points directly to two residual questions that have been lurking around our discussion all along. First, what exactly is this “conscience” to which government should be respectful? If conscience is no longer understood in theistic terms as a response to obligations imposed by a transcendent authority, then what is it?110 And, second, why should “conscience” (whatever it is) be entitled to claim special respect and protection from the law, now that the law’s erstwhile favorite, “religion,” has lost that claim? The answers to those questions are indicative of the shift in conceptions of the community that we have experienced.

  With respect to the definition of “conscience,” usage obviously varies. But the best answer, arguably, is that “conscience” refers to individuals’ judgments about and commitments to what they perceive as inviolable or “sacred”—if not to the “sacred” in a transcendent sense, then to the immanently “sacred.” And the position favoring “freedom of conscience,” or accommodation of conscience, suggests a conception of the political community in which the community remains sensitive to and respectful of at least that kind of sanctity. The continuing respect given to conscience even by opponents of “religious” accommodation thus suggests that the move away from a city that acknowledges a transcendent higher power has not been (as it might have been, at least in principle) to a city that is purely “secular” in a positivistic sense. The shift, rather, has been to a community that remains respectful of the immanently sacred.

  To be sure, a standard account of conscience today would probably not be presented in precisely these terms. Instead, conscience is typically defined and understood in terms of sincere “moral” convictions or commitments.111 But this label—“moral”—while not necessarily wrong, is unilluminating112 and probably overbroad for conveying the typical meaning of “conscience.” Thus, utilitarianism is standardly classified as a “moral” position, but the young pacifist who declares, “I’m a utilitarian, and on my calculations, war almost always reduces the net amount of human happiness,” will probably not be viewed as asserting an objection of “conscience” in the necessary sense. Even the young Kantian who explains, “I’ve thought about it, and I can’t come up with a maxim for serving in the army that I can will to be a universal law,” will likely not seem to be quite what we think of as a “conscientious” objector. Conscience, rather, typically connotes something like a reflective judgment in favor of some value or commitment that the person deems to be inviolable, or sacred.

  And indeed, this was precisely the nature of the celebrated nonreligious (or not conventionally religious) “conscientious objectors” in the Vietnam War period. Elliott Welsh described his objection to war in these terms: “I believe that human life is valuable in and of itself; in its living; therefore, I will not injure or kill another human being. This belief (and the corresponding ‘duty’ to abstain from violence toward another person) is not ‘superior to those arising from any human relation.’ On the contrary: it is essential to every human relation.”113

  Welsh was thus clear that in his view, human life had a sacred or inviolable quality. He was equally clear that this inviolable or sacred quality was immanent in life; it was not derived from any outside or transcendent source. And it was this sort of conscience—namely, one that was respectful of such immanent sacredness—that the Supreme Court found so compelling, and that more contemporary commentators find attractive.

  In advocating the importance of conscience while rejecting the deference to a higher or transcendent “religious” authority, the critics of “religious” accommodation demonstrate their commitment to a community that, while declining to acknowledge any transcendent authority, is nonetheless open to and respectful of immanently sacred values. To a community, or a city, that is pagan (in Varro’s philosophical sense).

  God outside the Gates

  The development we have been considering—namely, the development away from the accommodation of (transcendent) religion and toward a commitment to conscience, now understood in immanent terms—is not an isolated development. That development, rather, is best understood as one aspect of a broader movement away from a conception of the political community influenced by Christianity—or, more generally, by a transcendent religiosity—to a conception of the community closed to such transcendence but open to a more immanent religiosity. As with the movement from freedom of religion to freedom of conscience, this more general development can be divided into three phases—three phases in the city
’s closing off of itself to transcendence. (Although, again, the phases are artificial and for purposes of exposition. In reality the changes overlap, and all are still to some extent in progress and subject to contestation.)

  In the first phase, commitments and values deriving from transcendent religion, formerly deemed respectable and legitimate in public discourse, come to be excluded from the city’s own political decision making. In America, this change is discernible both in political thought and in constitutional law. In political philosophy, a central conversation in recent decades has debated and refined the idea of “public reason,” an idea associated with but hardly limited to John Rawls.114 Although the idea has been elaborated in a variety of versions, and although Rawls himself continually modified and qualified his position in various ways, the central contention is that in a diverse political community, important political decisions should not be based on “sectarian” considerations or on “comprehensive doctrines” that not all citizens share.115 And “religion”—or at least “religion” in the traditional sense—would seem to be the most conspicuous member of this class of “comprehensive doctrines” that are now deemed inadmissible in important public decision making; indeed, an express purpose of Rawls’s theorizing was to find a way of overcoming the differences that had resulted with the breakup of Christendom and the consequent development of religious pluralism.116

  This restriction on religious reasons, however, is not understood to exclude reliance on what we have here described as immanently religious values. Thus, the proponents of public reason do not seem to contemplate excluding arguments asserting that human beings, or human rights, have a sacred or inviolable quality. None of Ronald Dworkin’s invocations of the “sacred” in his approaches to abortion and euthanasia would be out of bounds;117 indeed, Dworkin and Rawls later collaborated, along with several other prominent thinkers, to write a “philosophers’ brief” in the Supreme Court’s assisted suicide cases.118 But the requirements of public reason would exclude, as sectarian, any decisive reliance119 on the more “comprehensive doctrines” of transcendent religious faiths.