Ken Starr—evidently age has so mellowed the former judge, solicitor general, and special prosecutor that he now uses his nickname rather than the more formal “Kenneth W.”—has turned his attention to a subject especially suitable for a minister’s son. In his new book, Religious Liberty in Crisis, Starr reviews dozens of high-profile cases that have shaped our current religious-freedom landscape. He writes in the manner not of the college president he used to be but more as a man of faith, guiding his flock of lay readers toward “understanding their rights” and standing up to threats posed by “laws and regulations.” Understanding the Court’s interpretation of the First Amendment, Starr’s theory goes, is crucial for religious citizens who feel the need to stand up against the encroaching forces of politics.
Starr is therefore aligning himself with a defensive, liberty-focused tradition that views the secularist state as the primary threat to freedoms of religion and conscience—and he believes that a primary value of public policy ought to be respecting each citizen’s liberty to pursue his own conception of virtue. The best way to accomplish this aim is to declare sacred space off-limits from the exercise of political power. In addition to autonomy, Starr champions both equality—among religious sects and between the religious and the secular—and accommodation, which demands that the state tailor its policies to make religious life viable.
In recent years, some conservatives have shot past this tradition. They insist that seeking accommodation is basically a loser’s game. In their eyes, state power is not the problem but the solution, so long as it is wielded unabashedly by the right people with the right ends in mind. Led in spirit by Adrian Vermeule, a Harvard Law School professor and “integralist” Catholic who seeks to subordinate state power to church leadership, the new vanguard insists that trying to carve out space to worship freely will never work. What we actually need to save our souls is to infuse American government with more explicitly religious (even sectarian) ideas. Politics must be purposefully oriented to explicitly religious ends if we are to stand any chance of fending off the secularist barbarian hordes at the gates of your local public library.
Vermeule puts the contradiction bluntly in a provocative essay published in the Atlantic last year: “The central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good.” This idea effectively pooh-poohs Starr’s solution to religious Americans’ challenges, which is, quite simply, to put “constraints on government.”
Starr is a constitutionalist who believes that our law (especially after Reconstruction) is meant to protect individuals against a zealous state, and to limit the power of would-be tyrants and oppressors. He is wary of substantive orientations within the law that may privilege one denomination’s idea of the highest good over another’s.
By contrast, today’s statist conservatives urge the use of more, not less, government power to beat back the forces of secularization and libertinism. Vermeule says that “strong rule in the interest of attaining the common good,” which he has equated on several occasions with Catholic social doctrine, “is entirely legitimate.” Practically speaking, both the Starr and Vermeule factions would celebrate recent defeats handed to state governments that used the pandemic as an excuse to bully churches and synagogues. But Starr would likely conclude from these episodes that the system is working, while the Vermeullians would conclude that our politics have become morally denuded. The fact that emergency appeals to the courts were even necessary is, for Vermeule and his ilk, a sign that people of faith need to be more proactive in taking the reins of power.
In light of this radical trend, Starr’s review of First Amendment jurisprudence seems almost quaint. The bulk of Religious Liberty in Crisis is dedicated to Supreme Court cases from the 20th century, when America found its cherished traditions of religious freedom under assault from activist courts that might have thought it an impermissible establishment of religion if you walked into the White House and remarked, “God, what a lovely building.” As Starr shows, we have made great strides in the campaign to restore the establishment and free-exercise clauses of the First Amendment to meanings befitting our Constitution’s Framers—most of whom invoked God frequently, supported religion in the public square, and were perfectly content to allow states to establish churches. Religious believers have good reason to trust now, for the first time in decades, that the courts will vindicate their rights even as democratically elected leaders are likely to become more hostile to faith and practice. In some sense, then, religious liberty is not it crisis at all.
But an unspoken crisis does lurk in the emerging chasm between Starr and Vermeule. Perhaps it is a weakness of the book, or perhaps the moment just passed Starr by in 2021 speed, but his review avoids this percolating conflict. Do we fight for more carve-outs and protections, using the Constitution as our deed of title showing that we are entitled to perform our strange rituals and foreign incantations as we see fit? Or do we eschew autonomy by trying to infuse the state with a religious purpose in a way that would split “religious liberty” in half, elevating its first half and forsaking its second?
Vermeule’s edgy young fan base may not like it much, but our tradition here in the United States is one of religious freedom—not religious coercion, not secularism, and certainly not fanatical anti-establishmentarianism, but freedom. Against the backdrop of this American tradition, trendy flirtations with nominally pro-religious authoritarianism look much more like a passing fad—not to mention far less conservative.
It is in our DNA and our destiny to be pluralistic. We have little choice. Unlike the nations of Europe, we did not emerge from one family with a single binding sense of purpose, or a single binding understanding of the divine. From the outset, Americans have been a people of diverse faiths, behaviors, and conceptions of the highest good. Deeply ingrained in our understanding of the role of religion in society is the idea that a piety coerced is no piety at all, for reasons endemic to Protestant theology but also because policing private beliefs is entirely impracticable among such a variegated population.
James Madison expressed this view most eloquently in his 1785 “Memorial and Remonstrance Against Religious Assessments.” Ensuring the conscience rights of all required recognizing that “religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” This is so not least of all because government dictates tend to require uniformity, and such dictates applied to substantive visions of the highest good “will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects.”
Starr’s opposition on the right trusts their own to imbue the institutions of power with more overtly religious substance. They are increasingly drawing on the conduct of central and eastern European countries more religiously and culturally uniform than ours to prove that it can be done. But by glossing over our emergent tradition of pluralistic liberty, they seek an America that never was and never could be. In that, they are every bit as utopian as the progressives they despise.
Yet one of the Vermeullian critiques is valid. A free society cannot last without constraints on its citizens, each of whom has the power to use his freedoms to corrode the bonds of trust and goodwill that keep a republic afloat. This, too, is part of our tradition: Madison himself wrote in Federalist 55 that the Constitution would not function without “sufficient virtue among men for self-government,” because without virtue “nothing less than the chains of despotism can restrain them from destroying and devouring one another.” President John Adams connected this insight to religion more explicitly: “Our Constitution was made only for a moral and religious People,” he wrote in 1798. “It is wholly inadequate to the government of any other.”
Virtue has always been necessary to a free society, and religion has always been thought the best guarantor of virtue. The accommodation principle Starr details speaks to that peculiar element of American public life. Even in 1970, in the thick of the Supreme Court’s assaults on the establishment clause, an 8–1 majority agreed that tax breaks for religious institutions were constitutionally permissible because states were within their rights to consider religious groups “beneficial and stabilizing influences in community life.” Our tradition recognizes, in theory and in law, that religion has an elevated status among nongovernmental organizations for its complementarity with a free republic.
Is there a path forward for Americans who believe that religion, with the virtue it cultivates, is vital to a free society but who still see liberty as the state’s proper goal?
Starr is convinced that there is, and his subtitle—”Exercising Your Faith in an Age of Uncertainty”—suggests how. Wearing our religious beliefs as badges of honor is a way of attacking the problem at its core. Religious interests come to be regarded as marginal forces in politics and law because they are misunderstood as veneers of bigotry and underestimated as cultural forces. Americans have come to rely on the Supreme Court, a counter-majoritarian institution, to defend what was once a freedom all Americans valued. We are more worried than ever that the people, left to their own votes and representatives, would crush religious liberty and religious believers. But we need not be resigned to it being this way.
Starr, with his Christian love leaping off the page, demonstrates through his demeanor and his chosen anecdotes that the best thing we can do for religious liberty is to give our religions a good name. Being firm in standing up for tradition—not merely asserting its existence but making the case for its role in human flourishing—makes the case for religious liberty better than any coercive measure could. Religious Americans are happier, on average, than their secular counterparts, sowing the seeds for a renaissance of traditionalism among a new generation already showing signs of renewed interest in religious orthodoxy.
Happy warriors like Starr can reveal to a demoralized society that belief in something beyond ourselves makes human life whole. But belief in anything beyond human autonomy will continue to be a hard sell as long as religious people resign themselves to extremes of cultural passivity or audacious and un-American political proactivity. Weakness invites the popular perception that religious people do not quite take themselves seriously and will fold when confronted with the social-justice left’s idolatrous liturgy. Resorting to coercion is doomed to fail. But we can cling tightly to our rites, and through the flourishing they yield, we can show our neighbors that traditional faiths make for great nations of wise and understanding people who live lives of meaning and mission in a society that craves both.
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