Rusty of the New Covenant Blog put up a post that included a link to this article by James Hitchcock, entitled “The Enemies of Religious Liberty”. In this article, Hitchcock argues that numerous academics, including such prominent legal scholars as Cass Sunstein and Kathleen Sullivan, are opposed to the very idea of religious liberty, a negation that he refers to as “a radically comprehensive and even imperial version of liberal ideology.” On a cursory reading, it seems to me that Hitchcock is misrepresenting the views of at least some of these scholars, building a straw man to destroy. His primary tool for doing so is the vague phrase that tends to gloss over a key distinction. For instance, he traces the root of this problem to the 1940s, ironically a time when the courts expanded religious liberty in a series of cases – a series of cases that secularists generally support today, I might add. He says,
Traditionally it had been assumed that “no establishment” was intended to serve as a protection for “free exercise.” Now the former provision was understood to place restrictions on religious liberty by excluding religion from public life.
I think there is a very big distinction between court rulings that have limited the authority of government to endorse a given religious viewpoint and “excluding religion from public life”. These are entirely different ideas, and Hitchcock pretends that they are the same. In every case that I can think of, the issue was not whether religious views were “excluded from public life”, but whether religious views could demand endorsement from the government or could be imposed on others. Does the ruling against Judge Moore on the Ten Commandments monument he moved in to the courthouse of his own accord mean that he doesn’t have the right to express his religious views? Of course not. Judge Moore is currently making lots of money going around the country expressing his views and no one has tried to stop him, nor could they if they wanted to. He has every right to declare his religious views in the public square. What that ruling meant was that he did not have the right to use his office to give his views a de facto endorsement from the government.
Likewise, do the court rulings against mandatory bible reading or prayer in schools “exclude religion from the public square”? Absolutely not. Nor is anyone’s right to pray or read their bible in any way diminished by the fact that they aren’t allowed to force others to participate in their religious observances. And if religion has been excluded from public life in the US, I dare say no one has noticed. We have thousands of Christian newspapers, magazines, radio and television stations in the United States. Our political leaders of both parties regularly speak of their faith in God and their religious views. They openly refer to those religious views when voting for or against legislation, they openly campaign based on those religious views. And they have every right to do this. But the fact that it is ubiquitous, and no one tries to stop them from doing so, shows that Hitchcock’s portrayal of reality is in fact a straw man that he has erected rather than an accurate depiction.
Hitchcock goes on to make similar statements over and over again in this article, without ever defining his terms or referring to specific court rulings or laws. A few examples:
Another part of Frankfurter’s bargain was that believers would not only have to abandon any public role for their faith but would also have to act as though their beliefs themselves were merely relative…