Scene at the Signing of the Constitution of the United States, Howard Chandler Christy, 1940
Controversy surrounds the First Amendment to the Constitution of the United States of America and will continue to do so for as long as the United States exists. Just what is forbidden and what is permitted by the “no establishment” clause? Historically speaking, the need for the clause is easy to understand: the union brought together a great number of communities, most of which adhered to some form of Christian worship, but many of which were adamant it was their own form, and not the form practiced by their rivals, that was the right one. To attempt to impose a single established church on all the states would have led to the breakdown of the union. At the federal level, therefore, the government of the United States was to show no favoritism in religious affairs. That relatively weak interpretation of the no establishment clause is, it seems to me, all that historical hermeneutics authorizes. But that is not how the clause is interpreted today by secularists, who argue it authorizes a kind of fumigation of all public institutions—including public schools, law courts, state universities, and colleges—to exterminate the religious bug. The assumption seems to be that religious freedom can only exist when the absence of religion from the state is enforced.
This radical secularist approach leads very quickly to a paradox. If there really is religious freedom, then it ought to be possible for citizens to lead life as their faith requires. But religious people believe they are under a duty to bear witness to their faith. Teachers, advisors, and legislators cannot act as though their religious beliefs have no bearing on what they say and do. They can of course endeavor to make room for disagreement, and this at least the no establishment clause requires. But they cannot act as though the voice of religion has been silenced as soon as they enter the classroom, the law court, or the debating chamber. To take the secularist path to religious freedom is therefore to deny religion, not to free it.
In fact, when the founding fathers, under the influence of James Madison, inserted the no establishment clause into the Constitution, it was not because they wished people to cease acknowledging their religion in public life.1 The founders were either Christians or, like Jefferson, fellow travelers of the Christian faith who did not wish Christianity to vanish from the prominent place in public life it had enjoyed since the first colonial settlements. They were also acutely aware of the religious oppressions of Europe, from which their ancestors had fled to the New World in order freely to practice their faith. The founders wanted to separate state from church, not to exclude faith from public life. And they wanted free churches, answerable to their congregations and not to law makers. The established Church of England was to them repugnant less as an attempt to impose Christianity than as a symbol of royal power and its intrusion into every sphere of social life. Moreover the no establishment clause was meant as a limitation on the powers of Congress, not on the powers of the individual states. The founders surely did not intend the clause to authorize Congress to intrude on the state of Massachusetts, for example, which at the time had an absolute ban against Roman Catholicism—a ban the federal government made no effort to lift.
Today’s radical secularists interpret the no establishment clause in another way entirely. Perceived violations of the no establishment clause include a court displaying the Ten Commandments and public schools beginning the day with prayers. As I suggested here, such interpretations do not convey a desire to protect religious freedom as much as they convey a desire to deprive religion of the place it naturally demands in the public life of a nation whose people remain, in their own understanding at least, largely within the faith traditions rooted in the Judeo-Christian Bible. Nobody was forcing children to take part in the public prayers at school or forcing anyone to genuflect before the Ten Commandments in the courtroom. Yet some currents of opinion in America not only take offence at school prayers and doctrinal icons but believe it is part of the spirit of democratic freedom to forbid them. Religion, for such people, is not just a private affair; it is something to be privatized, to be confined within the home like a habit that, however innocuous it may be in itself, becomes offensive when put on public display.
But this brings me to what, I think, is the crucial issue posed by religious freedom in the world today, which is the extent to which the religions of the world can actually be reconciled with the secular rule of law and the freedoms, including the freedom of religion, that we take for granted. Christians are under an obligation to bear witness to their faith, but this does not mean inflicting their faith on others or forcibly requiring others to submit to it. As the founder of the Christian faith himself showed, you bear witness not through triumphing over your rivals but through submitting to their judgment. And the Greek word used for the concept of witness (marturein) is now used to denote those who have been put to death or tormented for their religious beliefs (martyr). The Christian faith, as it understands itself today, does not demand we silence its critics, or even forbid them to practice their faith.
Muslims must also bear witness to their faith among those who do not share it, in deeds of piety and loving kindness as well as through worship and prayer. But there has been a tendency in times of stress to describe as a martyr (shahīd) not only the one who is killed for his faith but also the one who kills for it. This tendency is not unique to Islam, of course, as we know from the history of the crusades. But it is clear that religious freedom cannot be granted to those who regard their faith as freeing them from the ordinary obligations of civil life, including the obligation to respect the life of their critics. For Islam as for the other Abrahamic faiths, therefore, we must ask how the faithful should respond when challenged by the secular culture to bear witness to their faith.
Nor is discussion of this matter confined to the Abrahamic religions. The action of Sophocles’s Antigone hinges on the conflict between political order, represented and upheld by Creon, and religious duty, represented by the person of Antigone. The first is public, involving the whole community; the second is private, involving Antigone alone. Hence the conflict cannot be resolved. Public interest has no bearing on Antigone’s decision to bury her dead brother, while the duty laid by divine command on Antigone cannot possibly be a reason for Creon to jeopardize the state.
A similar conflict informs the Oresteia of Aeschylus, in which a succession of religious murders, beginning with Agamemnon’s ritual sacrifice of his daughter, lead at last to the terrifying persecution of Orestes by the furies. The gods demand the murders; the gods also punish them. Religion binds the house of Atreus, but in dilemmas it does not resolve. Resolution comes at last only when judgment is handed over to the city, personified in Athena. In the political order, we are led to understand, justice replaces vengeance, and negotiated solutions abolish absolute commands. The message of the Oresteia resounds down the centuries of Western civilization: it is through politics, not religion, that peace is secured. Vengeance is mine, saith the Lord, but justice, says the city, is mine.
The Greek tragedians wrote at the beginning of Western civilization. But their world is continuous with our world. Their law is the law of the city, in which political decisions are arrived at by discussion, participation, and dissent. It was in the context of the Greek city state that political philosophy began, and the great questions of justice, authority, and the constitution were discussed by Plato and Aristotle in terms that are current today.
However, two great institutions intervened between the modern world and its premonition in ancient Greece: Roman law, conceived as a universal jurisdiction, and Christianity, conceived as a universal church. St. Paul was a Roman citizen, versed in the law, and the Pauline church was designed not as a sovereign body but as a universal citizen, entitled to the protection of the secular and imperial powers but with no claim to displace those powers as the source of legal order. This corresponds to Christ’s own vision; in his parable of the tribute money, Caesar’s public jurisdiction is tacitly contrasted with the inner authority of religion, governing the person-to-person relationship between the individual and God: “Render therefore unto Caesar the things which are Caesar’s, and unto God the things that are God’s” (Matthew 22:30).
The Christian separation of religious and secular authority recalls Aeschylus’s solution to the dilemmas thrust upon mortals by the gods. This Christian approach was developed by St. Augustine in The City of God and endorsed by the fifth-century Pastoral Rule of St. Gregory, which imposed the duty of civil obedience on the clergy. Fifth-century Pope Gelasius I made the separation of church and state into doctrinal orthodoxy, arguing that God granted “two swords” for earthly government: that of the Church for the government of men’s souls, and that of the imperial power for the regulation of temporal affairs. This idea persisted in the medieval distinction between regnum and sacerdotium and was enshrined in the uneasy coexistence of emperor and pope on the two “universal” thrones of medieval Europe. Much wise and subtle argument was expended by medieval thinkers on the distinction between the two sources of authority in human affairs, with the early fourteenth-century thinker Marsilio of Padua expressing what became the accepted Western view of the matter in his Defensor Pacis. According to Marsilio, it is the state and not the church that guarantees the civil peace, and reason, not revelation, to which appeal must be made in all matters of temporal jurisdiction.
The First Amendment of the United States Constitution on the facade of the Newseum in Washington, DC
Throughout the course of Christian civilization, we find a recognition that conflicts must be resolved and social order maintained by political rather than religious jurisdiction. The separation of church and state was from the beginning an accepted doctrine of the church. Indeed, this separation created the church, which emerged from the Dark Ages as a legal subject, with rights, privileges, and a domestic jurisdiction of its own.
Freedom of conscience, as we have understood it in the West, requires secular government. But what makes secular law legitimate? This question was the starting point of Western political philosophy and is now mired in academic controversy. But, to cut an interminable story indecently short, the consensus among modern thinkers is that the law is made legitimate by the consent of those who must obey it. This consent is shown in two ways: by a real or implied “social contract,” whereby each person agrees with every other to the principles of government, and by a political process through which each person participates in the making and enacting of the law. The right and duty of participation is what we mean, or ought to mean, by “citizenship,” and the distinction between political and religious communities can be summed up in the view that political communities are composed of citizens, religious communities of subjects who have “submitted.” And if we want a simple definition of the West as it is today, it would be wise to take the concept of citizenship as our starting point. In fact, millions of migrants are roaming the world in search of an order that confers security and freedom in exchange for consent.
The problem is that although people want consent, it does not make them happy. Something is missing from a life based purely on consent and on polite accommodation with your neighbors—something of which Muslims retain a powerful image through the words of the holy Qur’an. This missing thing goes by many names: sense, meaning, purpose, faith, submission. People need freedom, but they also need a goal for which they can renounce it. That is the thought contained in the word Islam: the willing submission to the will of God, as was revealed to the Prophet. The question, however, is what that requires. In recent times, for the Islamists, submission has meant renouncing not only freedom but also the very idea of citizenship. It has involved retreating from the open dialogue on which the secular order depends into “the shade of the Qur’an,” as Sayyid Qutb put it in a disturbing book that has been an inspiration to the Muslim Brotherhood ever since. Citizenship is precisely not the form of brotherhood for which many Islamists yearn: it is a relation among strangers, a collective apartness in which fulfilment and meaning have no public guarantee and are confined to the private sphere. To have created this form of renewable loneliness is the great achievement of Western civilization, and of course my way of describing it raises the question whether this achievement is worth defending, and if so how.
My answer is that, yes, it is worth defending, but only if we recognize the truth of which Islam reminds us: citizenship is not enough, and it will endure only if it is associated with meanings to which the rising generation can attach its hopes and its search for identity. This, it seems to me, is the position we have reached. The secular rule of law grants freedom of speech and freedom of religion; it upholds the right of opposition and implants discussion, disagreement, and compromise in the heart of the legislative order. But to many religious people those freedoms seem to grant too much space to destructive and corrupting states of mind, and to make insufficient place for revelation in the life of the community. Such people might wish for a political order built upon religious foundations, and it is this desire for solid foundations that often tempts some Muslims towards Islamism. Thus in the recent conflict in Egypt the posters waved by Morsi’s supporters from the Muslim Brotherhood did not advocate democracy or human rights; they declared that “all of us are with the shariah.” They were announcing a religious unity, and an adherence to a religious law, from which a considerable number of their fellow Egyptians are excluded, either by their faith or by their adherence to the secular state. This search for unity is contained in the very word “brotherhood”—ikhwān. Citizenship is a relation among strangers: it binds people in a web of obligations, in which difference and diversity are part of the deal. Brotherhood is a relation among family members: it binds people in a relation of mutual belonging, a loyalty that is deeper and more stable than any social contract, but which is also not available to outsiders.
A general assumption of secular government in the Western tradition is that those who claim a right must also confer it. The right to live according to one revelation ought therefore to entail respecting the right to live according to another. This means the aspiration to replace the relation of citizenship under a secular law with that of brotherhood under the shariah is one Islamists might have to drop if they wish to enjoy the rights and the privileges of a modern secular state. For, in some interpretations at least, the shariah does not recognize the equal right of all to practice and testify to the faith that guides them, or to compete in the marketplace of faith for those who are ripe for conversion. It is at this point that guidance is needed: we need to know just how far the shariah can be adapted to life in modern conditions and whether the secular law can legitimately claim, in the Islamic view of things, the kind of absolute authority that is required by a comprehensive government, offering equal protection to people of all faiths and none.
The question of religious freedom is not only of great urgency in the world today but also of great complexity, asking us to clarify just where freedom lies in our scheme of values. Christ, called upon to explain the law and how we must adhere to it, said this: “Love the Lord thy God with all thy heart, and with all thy mind, and with all thy soul and with all thy strength; and love thy neighbor as thyself. On these two commandments hang all the law and the prophets.” In reducing the commandments to those two, he was following a long-standing rabbinical tradition, which we can see at work also in the Torah, notably in the book of Leviticus, and in the teachings of Christ’s contemporary, Rabbi Hillel. The two duties command us to look on the world with a view to loving what we find, and they must be obeyed inwardly before they can be translated into deeds. Exactly what deeds will follow cannot be demonstrated a priori, as Christ went on to show with the parable of the Good Samaritan. Approaching the world in the posture commanded by Christ, you are already open to legal innovation. Indeed, the law becomes just one among many instruments whereby we take charge of our lives and attempt to fill our hearts with the love of God, and our world with the love of our neighbor.
The story of the Good Samaritan, offered in answer to the question “Who is my neighbor?”, tells us that “love of neighbor,” while a religious duty, does not require the imposition of religious conformity and is not a form of brotherhood. It is already shaped according to the requirements of citizenship. You love your neighbor by administering to his needs in adversity, regardless of whether he belongs to you through family, faith, or ethnic identity. On this understanding, the laws that govern us do not require religious conformity, and the secular order can take charge of the mutual dealings on which we all depend for survival. Religious freedom can exist, within the Christian conception, as a religious duty—a form of respect for the neighbor as someone other than me. Perhaps the greatest question concerning the place of Islam in the political community is the question of the “other.” To what extent, and in what way, does Islam recognize the other, and the right of the other to belong? Islamic civilization, as it evolved under the Ottomans, wrestled with this question and developed an intriguing jurisprudence with which to conceptualize it. If we are to secure the kind of religious freedom Muslims wish for, and to which they are surely entitled, we need to revisit the ways in which Muslim communities granted space to those of other faiths and acknowledged a shared obedience to sovereign powers, as under the Ottoman Empire prior to its lamentable destruction in the wake of the First World War.
In my view, religious freedom, as we have enjoyed it, is itself a legacy of religion. It arose from the sincere recognition of the central place faith will inevitably occupy in the life of its adherents. When faith declines, as it has been declining during our times, there remains only the shell of the political order that grew from it. And people then hunger for the kind of consolation faith alone can provide, while adhering to a political order that offers no such consolation but only the freedom to search for it. If that freedom is precious to us, it is in part because it permits the search for something else—something far more valuable to those who have managed to find it.
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