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    Religious Freedom vs, Religious Privilege (or, Franklin vs. Penn)

    The version of "religious liberty" currently promoted by the American right, best exemplified by the Hobby Lobby decision and the "Religious Freedom Restoration Act," is not only a recipe for future religious disputes and persecution. It represents an approach to religious freedom that has already created trouble. It was tried and abandoned so early in the American Experiment that most of us don't learn it in school. That's because the policy of providing religious groups extensive privileges or exemptions, rather than maintaining a neutral public square for all, failed before the Revolution.

    Many of today's religious conservatives object to a religiously-neutral public square (where, for example, everyone has to follow the same laws). This, they say, restricts their free exercise of religion. They feel entitled to exercise their "sincerely held" religious beliefs in full. The problem with this is that when everyone enjoys maximal rights of free exercise, parties inevitably infringe on other parties' rights to free exercise. People of other faiths are not allowed to practice, or people are forced to abide by some religious precept which they do not believe. (For example, non-Catholics might not be denied certain health coverage benefits because of a Papal encyclical from 1968, forcing those non-Catholics to abide by the tenets of someone else's faith.) The approach that Justice Kennedy et al. have so improvidently revived grants certain parties (especially powerful parties) particular carve-outs or concessions, allowing them spheres of influence where they are exempted from the ordinary rules.

    Some of the original Thirteen Colonies, of course, began as religious concessions on a grand scale, with particular religious minorities (in the 17th-century English context) granted their own domains to settle and govern. The most obvious of these are Puritan New England (settled by radical Congregationalists and Presbyterians), Maryland (granted to the Roman Catholic Lord Baltimore as a personal fiefdom), and Pennsylvania (granted to the Quaker William Penn as his personal property). This idea of colony-as-denominational-ghetto is, of course, an outgrowth of 17th- and 18th-century England's own sorry resistance to religious toleration, and its bias toward its own official Church; better to give the Quakers huge swaths of territory in the New World than to accept an England where all faiths were welcome.

    But in all of these colonies, albeit in different ways, there was serious conflict between the locally privileged religion and people of other faiths. Maryland never quite got off the ground as planned, because so many of the colonists were resistant to the idea that Catholicism would be specially privileged; the colonists had to struggle with a superior civil authority in order to achieve a more level and neutral public square, with the same rules for all.

    Puritan New England became a site of significant religious persecution, as the Puritans battled non-Puritan groups and one another. That Massachusetts, Connecticut, and Rhode Island are three different states is testimony to the Massachusetts Bay Puritans' gift for squabbling and schism. Connecticut and Rhode Island were founded by Puritan religious dissenters from Massachusetts. The struggle between the Congregationalists and Presbyterians was more peaceful, but bitter and socially divisive. And other religious groups had no rights at all. Baptists and Quakers were not only expelled from Massachusetts, but whipped for good measure; the Massachusetts Puritans insisted on their religious freedom not to intermingle with other faiths. The final extreme was the execution of some Quakers for being Quakers, at which point the royal government had to step in. A superior civic authority had to restrain the majority of the colonists from oppressing and persecuting their neighbors.

    (One of the ironies that I've blogged about before is that Mitt Romney has enjoyed far more religious liberty in modern secular Massachusetts than he would have in colonial religion-in-the-public-square version. Secular Massachusetts elected him Governor; theocratic Massachusetts might well have hanged him. When modern religious conservatives complain that the "secular culture" oppresses them and limits their freedom, they have NO idea what they're talking about.)

    In Pennsylvania, the case was most complicated, with the colony owned by a family of Quaker proprietors and the colonists divided between a Quaker-led political faction and a non-Quaker faction. But the special privileges accorded to the Quaker faith did, inevitably, burden the rest of the Commonwealth. The most startling example was the reluctance by the pacifist Quakers to countenance a colonial militia despite recurring armed conflicts with the French and the Native Americans. That left their fellow-colonists with the choice of going undefended, and thus dying for beliefs they did not share, or of shouldering the entire risk and expense of colonial defense themselves, without any contribution from the Quakers. In the 1740s Benjamin Franklin (nobody's military man) had to organize an all-volunteer militia without legislative sanction; essentially a self-funded private club to defend the colony. The Pennsylvania legislature wouldn't actually fund a state militia until 1756, two years after the French and Indian War had begun in Pennsylvania, and a year after the colonial commander of the British Army had been killed in action there.

    The Quakers' special prerogatives could only be sustained by limiting the political freedoms of others. "Religious liberty" conceived as special privileges or exemptions for believers has repeatedly, inevitably, become an infringement on others' liberty.

    Franklin stands as an exemplar of the other, more successful approach to religious freedom. Franklin advocated a public square open to all, with no special advantage or favor to any sect. This often put him at odds with the Quaker party in colonial politics. But, since it is the eve of the Fourth of July, let me be bold on the great Franklin's behalf: he was right, and his political opponents were wrong.

    Franklin, who belonged to no organized church and swore to no particular creed, advocated a "secular" public sphere, the true religious equality where all believers (and unbelievers) are accepted by the commonwealth and all accept the same obligations to the commonwealth. Franklin remained on friendly terms, by his own account in the Autobiography, with every religious denomination in Philadelphia by donating money whenever someone was trying to build a church. He believed in a Philadelphia where faith was a choice and every citizen had the same freedoms, where every conscience was free and where no one had to bear the burden of a stranger's beliefs.

    The William Penn model has failed, more than once. Now that the RFRA and five short-sighted Supreme Court justices have revived that long-discarded model, it will fail again, but only at the cost of burdening Americans' liberty. Under the Penn model, some people have more religious freedom than others; the rest of us are free to exercise someone else's religion. And that tends, always, to mean extra religious freedom for  the rich and powerful at the expense of ordinary citizens' freedom. The rest of us are free to worship as my Lord Baltimore pleases, free to sacrifice to William Penn's lofty principles, free to have the chief shareholder of the corporation that employs us make moral decisions about our wombs. The model of "religious liberty" as special privilege always ends up giving all the liberty to the privileged.

    That was not the America Benjamin Franklin wanted. And I say, this Glorious Fourth, that Benjamin Franklin was right in 1776, and right in 1787, and Benjamin Franklin is right today. Freedom of conscience is not about exemptions or concessions. Every conscience is, and can only be, equally free. And only a neutral public square, where all have equal standing, allows religious equality. Franklin was right, and history will continue to prove it.

    Happy Independence Day.


    "Franklin, who belonged to no organized church and swore to no particular creed, advocated a "secular" public sphere, the true religious equality where all believers (and unbelievers) are accepted by the commonwealth and all accept the same obligations to the commonwealth. "

    Yes, but that was before secular became an -ism with its own dogma as well as fanatical adherents.


    A term used for the first time about 1846 by George Jacob Holyoake to denote "a form of opinion which concerns itself only with questions, the issues of which can be tested by the experience of this life" (English Secularism, 60). More explicitly, "Secularism is that which seeks the development of the physical, moral, and intellectual nature of man to the highest possible point, as the immediate duty of life — which inculcates the practical sufficiency of natural morality apart from Atheism, Theism or the Bible — which selects as its methods of procedure the promotion of human improvement by material means, and proposes these positive agreements as the common bond of union, to all who would regulate life by reason and ennoble it by service" (Principles of Secularism, 17). And again, "Secularism is a code of duty pertaining to this life founded on considerations purely human, and intended mainly for those who find theology indefinite or inadequate, unreliable or unbelievable. Its essential principles are three:

    The improvement of this life by material means.

    That science is the available Providence of man.

    That it is good to do good. "Whether there be other good or not, the good of the present life is good, and it is good to seek that good" (English Secularism, 35).

    That is from New Advent Catholic Encyclopedia. The article ends its criticism of secularism with this:

    the Catholic Church does not admit that religion is simply a private affair. God is the author and ruler not only of individuals, but also of societies. Hence the State should not be indifferent to religious matters (see ETHICS). How far in practice Church and State should go together depends on a number of circumstances and cannot be determined by any general rule, but the principle remains true that religion is a social as well as an individual duty.
    In practice again, owing to special circumstances, a secular education in the public schools may be the only possible one. At the same time, this is a serious defect which must be supplied otherwise. It is not enough for the child to be taught the various human sciences, he must also be given the knowledge of the necessary means of salvation. The Church cannot renounce her mission to teach the truths she has received from her Divine Founder. Not only as individuals, but also as citizens, all men have the right to perform the religious duties which their conscience dictates. The complete secularization of all public institutions in a Christian nation is therefore inadmissible. Man must not only be learned in human science; his whole life must be directed to the higher and nobler pursuits of morality and religion, to God Himself. While fully recognizing the value of the present life, the Church cannot look upon it as an end in itself, but only as a movement toward a future life for which preparation must be made by compliance with the laws of nature and the laws of God. Hence there is no possible compromise between the Church and Secularism, since Secularism would stifle in man that which, for the Church, constitutes the highest and truest motives of action, and the noblest human aspirations.
    Six of the Supreme Court justices are Catholic.
    Remember it was a Protestant nation that enshrined the separation of church and state into law. It was consistent with the Protestant principle of the priesthood of all believers that led to the development of Secularism. What are Secularists after all if not the ultimate Protestants?
    Happy 4th.

    Well, Emma, you've hit the nail on the head. How do we get out of this mess?  I would be OK if no Catholic was ever allowed on the Supreme Court ever again based on their abuse of power. I would be happier if ANY churchgoer were prohibited.  

    What would really make sense would be for the justices to be chosen by LOTTERY with a 10 year limit. They might actually take the responsibility seriously. 

    "What would really make sense would be for the justices to be chosen by LOTTERY with a 10 year limit. They might actually take the responsibility seriously."

    Funny you should say that, I just suggested that on Trope's thread.


    This was beautiful, Doc.


    One of the hurdles JFK had to overcome in his election to the presidency was his Catholic faith.  Back then, people were concerned that the Vatican would be calling the shots a bit like people fear Sharia law today.  Ironically, 50 years later, we have 5 Catholic SC justices doing that very thing.

    The article misstates the real legacy of the historical case of PA in relation to religious liberty.  While it is true that Quaker values came under occasional pressure in the legislature in the pre and post independence era, it is also true that PA did not embrace "secularism"--what was embraced, and what should serve as our model in debates about religious liberty, was the principle that religious convictions and religious communities were welcome in the colony, and were in fact considered to be essential to the building up of strong shared communities, and that civil society had to find ways to maximize religious freedom in order to benefit from the advantages of having community-oriented citizens.  There is a reason why PA was known as the "best poor man's country" in the colonial era, and why so many religious minorities with strong convictions elected to emigrate to PA (persecuted Moravians and Scotch Irish Presbyterians, who overwhelmingly started there in the 1730s and 40s, Anabaptisist of all stripes, Mennonites, Amish, and German Lutherans)  It was because the colony's laws and leaders generally respected religious conscience, went out of their way to encourage religious communities to practice their faiths as freely as possible, and built a very faith-positive environment that looked like a kind of paradise after the practices even of the few rather tolerant corners of Europe.  While tensions existed on some questions (the militia and Native American relations was one example; many Scoth-irish Presbytrians in particular found the Quaker proprietors to be "soft" on Native peoples, leading to the famous Paxton Rebellion in the 1760s) the balance struck was a very healthy--respect for religious tradition, organization and conscience, and efforts to maximize the space within civil society for a wide range of religious practices.  Over the long run, the colony was strongly pro-religion (and, of course, especially pro-Quaker), but very anti any official established religion.  That's the model.  

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