Digging at the confluence of culture and everything else
I started this post many moons ago as a way to explain what was going on in the Hobby Lobby. Like every other project that is meant to be a “brief history” it quickly spiraled out of control.1 So I left it alone, gathering dust in my drafts folder.
Then Indiana happened. And it turns out we’ve not advanced the ball at all as far as civic knowledge or civic purpose since Hobby Lobby. Once again, we’re talking about religious liberty and its place, or lack thereof, in our society. Once again, American journalists and politicians are proving themselves religiously illiterate.2 Now, fixing American journalism is a quest too quixotic even for myself. So I’m going to do my best to make you all a little less wrong. This post will cover up to the Bill of Rights. I’m going a bit deeper than typical treatments of the topic, but I am still covering a very long time period quickly. History is hard and causation is complex so on some level, you’re just going to have to accept my account will be imperfect. Caveat lector.
As we have all been taught, in the beginning the Pilgrims and other religious emigrants left Europe in order to freely practice their religion. So they set for new lands far from their Kings and Queens where they could be left alone – sort of. The truth was, of course, more complex than that. Petty material concerns were interwoven with less than saintly religious motivations. There are many, many accessible sources on the web purporting to debunk the myths of the early American religious freedom, and if that is what you’re interested in, Google will lead you to those places quickly. The classic account is true enough for our purposes. It is lacking in important details. For starters, Europe was not a vague threat to the liberties of man. It was a bloody battleground of religious warfare.
The emigrants that undertook the arduous journey to the New World were fleeing a divided Europe. Europe has always been a relatively tiny place with too many ethno-linguistic groups in the business of slaughtering each other.3 They killed each other over land and over gold and for honor and because of factional conflict and because of soccer.4 That they also killed each other over religion should not surprise us. What is surprising is that they ever managed to stop killing each other.
The 16th century added a massive splinter faction (Protestantism) within Western Christianity to bloody thrust of European history. True to form, Protestantism soon developed offshoots, of which a third major player, Calivinism – or the Reformed tradition, was the most significant. These factions were made up of converts, not aliens. Where there was once one religion, there were now two or three major faiths vying for influence and control. The European religious wars involved territorial rulers fighting for the right to follow their religious conscience, and then impose it on their subjects. There were spurts of religious tolerance, but they were failed experiments or the result of inattention, not permanent peaces. Even formal agreements, like the Peace of Augsburg, named a small number of tolerated religions, excluding the rest. Christian religious pluralism grew in Europe despite the best attempts of princes and kings suppress it. In 1618, the failure of the Powers to contain Christian pluralism was punctuated by the Thirty Years War. The German lands turned to mud as the Catholics and Protestants of Europe fought out their religious and regional rivalries to the point of exhaustion.
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The Virginia colony was formed after most of the religious wars, after considerable religious upheaval in England and just a few years before the Thirty Years War began. When the puritans came, they took the lessons of Europe with them. Freedom, yes – but the freedom to impose their religion on their community and any Amerindians that fell under their baleful eye. This strikes us Moderns as barbaric, but it has its own cold internal logic. The puritans were playing for infinite stakes. What value is tolerance before the fires of hell?
Maryland was founded in 1634 by Cecilius Calvert as a Catholic refuge for the Catholic English fleeing England. Now, Maryland may have been a Catholic refuge, but it was still under Anglican rule, and so Protestants soon flooded the colony. The governor encouraged the colonists to leave their religious rivalries back in Europe. For a while, they did. But despite the colonists’ hopes, Europe’s troubles would reach across the Atlantic. The outbreak of the English Civil War disrupted the peace in Maryland and threatened Calvert’s grasp on power and civic order. So Maryland’s law enshrining religious tolerance came to pass in 1649, but only for Trinitarians. It was a deal between the Catholic minority leadership and the Protestant majority populace. It would last only five years before Protestants rescinded the act and drove the Catholics underground.
There were other, more successful religious tolerance experiments in the Colonies. Roger Williams repeatedly dissented against the powers of his day and was eventually sentenced to death. He fled to what is now Rhode Island and established a sanctuary for dissent and seperationism. There were other small experiments in religious toleration enshrined in law: Connecticut, New Jersey and especially Pennsylvania. These attempts were more successful than Maryland, but largely because they were driven by dissidents. The colonies had adopted European styled religious persecution, and so they fled to form other states. Religious tolerance was not a natural result of a plural people. It was the desperate gambit of dissidents.
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Fast forward to 1760s. Led by notables from the landed, educated classes, a bunch of colonial yeomen, small business owners and craftsmen revolted against the British powers (and their local allies).5 Revolt becomes a revolution and to everyone’s surprise the Americans win.
At the founding, there was a very weak central government and several powerful states. The majority of those states had official state religions using their sovereign authority to force it upon their populations, not days from fighting a bloody war to throw off tyrannical power. There was little doubt they could do so, even if some people thought it was a terrible idea. People like James Madison.
Now the early Americans were very much cognizant that religion can be both a rival and an ally for state power, so it was a bit of a tug of war between those imperatives. So while a part of the Virginia legislature Madison laid out his case against state interference in religion. The Memorial and Remonstrance is a great document and you should read it. But most of you won’t , so here is the summary:
In case any of you thought otherwise, we have not in fact come up with any better arguments since. Madison’s side won decisively.
Four years later, Madison heads to the Constitutional Convention, worried, like many of his fellows, about the state of the republic. See, the government was weak, had a lot of war debt, and was having a hard time raising the taxes to pay it all off. So, a stronger central government it was and the Bill of Rights was created, in part, to allay the fears of those afraid of the central government.6 Among those early important rights was this little line:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Yeah, that was Madison at the helm.7
So, all that state religion stuff is gotten rid of, right? Wrong! The United States Congress could make no law establishing religion or prohibiting the free exercise thereof. The States could do whatever they pleased.
We’ll pick back up next time with some beleaguered religious minorities: Mormons, Catholics, Jehova’s Witnesses and the Amish.
I’ve been without power for most of today, so I only have time for one quick thought on Burwell v. Hobby Lobby Stores, Inc.. I hope to have a more extensive write up, probably in a two three post series. For now, I want to start by introducing some concepts that may not be completely familiar to a general audience. Please note, despite the title, I do not think myself the equal of Soren Kierkegaard.
Hobby Lobby is not a First Amendment case. That means it is not about the Free Exercise of religion, even if it is about exercising religion, and it isn’t about the Establishment of Religion, even if there are religious actors are involved. It is actually a Religious Freedom Restoration Act (RFRA, sometimes pronounced “rif-ra”) case, so it is in large part about determining what Congress meant when it created and amended the act and less about the underlying judicial policy questions of religion and person-hood, although those are obviously a factor. Understanding the case in that way helps clarify the issues worth caring about as a lawyer and a lay citizen.
I like to think of policy questions as constantly asking about “who do we want doing what to who at what cost?” It is always worth asking, not only is the thing we are asking the right thing to want, but are the right people the ones doing those actions, and that the costs are acceptable. That’s already a lot to ask, and you have to keep asking at every step of the way. This also means that simple answers are usually the wrong ones ones. In fact, you’re usually going to come up with several answers that are in tension with each other. So we’re going to want to balance the needs and the costs. And then we’re going to have to figure out who does the balancing for us.
So before we deal with Hobby Lobby itself, let’s think about RFRA more broadly. Who? Religious believers. Doing what? Rejecting substantial burdens To who? Governments and their agents. At what cost? Governments have to have compelling interests and use the least restrictive means. Let’s iterate the questions once because this is important. Who decides what a compelling interest is? Who decides what qualifies as the least restrictive means? Who decides who counts as a religious believer? Who decides what a substantial burden is? How do we determine the balance?
Religious liberty is not easy, because it involves two big asks. We need to have our ability to pursue our religion (or irrelegion) protected from coercive powers, governmental or private. At the same time, we need to be able to pursue our lives and construct our society without having to bear the costs of someone else’s religion. The bottom line here is that I think the big question – is RFRA a good idea? – is hard and the smaller question – should Hobby Lobby have won? – is also hard. Anyone who tells you otherwise is probably not asking enough questions.
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