Boiled down, the basic argument goes something like this: A special commitment to religious freedom arose in a religious context and is most defensible on religious premises. Today, though, it is widely assumed that political and legal decisions must not be made on religious premises. Consequently, it is difficult today to give a persuasive (admissible) justification for a special commitment to religious freedom.
In one version or another, the argument has become familiar, and it also seems to be becoming increasingly persuasive. More and more scholars gravitate to the basic conclusion: there is no justification for religious freedom as a special right or constitutional commitment. And the Obama Administration’s recent positions on the “ministerial exception” and the “contraception mandate” suggest that the Administration has embraced this conclusion as well.
This last observation is for me reenforced by the strained hypotheses and rationalizations I have heard from intelligent thinkers who were trying hard to be friends both of the Administration and of religious freedom. For ordinary political purposes, I expect that it would be imprudent for a politician to come right out and declare, “First Amendment be damned; I’m opposed to special legal protection for religious freedom.” But viewed from a vantage point within the academy, this position seems utterly unsurprising. Obama was once an academic of sorts, and he reportedly has a few academicians working in his Administration. Why should anyone be surprised if he evolves toward a position– a position that might fairly be labeled “progressive”– that seems increasingly ascendant within the academy?
One question that emerges from these developments, though, is this one: How should people (such as myself) who do still favor a special constitutional commitment to religious freedom go about justifying that commitment? Or should we just concede that no solid justification is available? I expect and hope that these questions will receive increasing attention.
For myself, I’m not confident about the answers to the questions, if there are good answers. To be honest, I never really conceived it as my task to devise justifications for a commitment that, until fairly recently, seemed to enjoy the support of an overwhelming consensus both of scholars and citizens generally. Over the next few days, I may (or may not) try out a few very tentative ideas. Mostly, I hope to hear (in this or other contexts) what other people think.
– Steve Smith