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Judge John T. Noonan's (9th Circuit Court of Appeals) book is a lively — sometimes whimsical, always learned — but ultimately flawed celebration of religious liberty in America.
The book presents its argument in two ways. The first is to narrate episodes in the history of religious liberty and oppression in the past, including the recent past. The second is to explain the concept of religious liberty itself. Noonan does a good job with the historical part of his argument. It is the best part of the book. The analysis of religious liberty, however, is lacking.
Judge Noonan's vivid stories remind us that religious bigotry in government is not the only problem. Yes, government can persecute the heterodox in the name of religion, as in pre-1945 Japan (oppression of Christians) and pre-1800 Europe (oppression of Protestants and other heretics by Catholics, and vice-versa). But government can also persecute believers in the name of irreligion or atheism, as in the Soviet Union and pre-1900 France. Many of the stories that Noonan tells are unknown to all but specialists in colonial American, French, Japanese, and Russian-Soviet history. Here he provides a useful service.
Noonan vs. Madison
The most challenging parts of Judge Noonan's book are his discussions of the meaning of religious liberty. Noonan says he follows James Madison. He chooses this Founder because Madison comes closer than the others to Noonan's own position on religious liberty. He especially approves of Madison's apparent opposition to government support of religion under any circumstances.
Noonan thinks Madison grounds religious liberty in faith, not reason. Madison supposedly believes "that God in us speaks to us" through conscience. "The faith that there is a governing God is fundamental." That faith, Noonan claims, leads Madison to conclude that law must not interfere with whatever a man's conscience tells him is his religious duty.
Noonan mistakes Madison's position. Like the other leading Founders, Madison was careful to argue from principles discovered by reason, rather than derived from his own or anyone else's personal faith. Besides, Madison is far from believing in the conscience in Noonan's sense. What would Madison have said if someone (say, a Mormon in 1890) had said that his conscience told him that he must have thirty wives? What if conscience told a woman that she must burn herself to death when her husband dies (the Hindu practice of suttee)?
The answer is obvious. Madison would have said that reason can see that the family, defined as a married man and woman and their children, is indispensable to a free society. Madison would have said that it is unreasonable for anyone to claim that there is a religious obligation to commit suicide for the sake of a lost loved one. Madison never argued, or even implied, that there is a free-exercise natural or constitutional right to disobey generally applicable law. Nor did anyone in the founding generation. The military exemptions for Quakers had to be provided by federal and state law precisely because it was not implied in the right of free exercise of religion.
The idea of an autonomous conscience, unbound by reason, was rejected by the American Founders. It was rejected also by most Christians of the founding generation, who believed that "A revelation, pretending to be from God, that contradicts any part of natural law, ought immediately to be rejected as an imposture" (Samuel West, A Sermon, 1776). For founding-era Christians, not only revelation but "reason . . . is the voice of God" (Samuel West). That was their foundation for natural law, natural rights, and therefore for constitutional and statute law. For Noonan, conscience is the voice of God. That is his faith, and his foundation. It is Noonan's Second Commandment. (Yes, this Ninth Circuit federal judge issues Commandments, exactly Ten of them, at the end of his book.)
Judge Noonan is tone-deaf to Madison's reliance on reason. He quotes Madison's note that religious liberty is "one of the natural rights." Noonan remarks: "the emphasis on 'natural' stressing its talismanic importance." "Talismanic" means "possessing magical powers." What Madison regarded as reason turns into irrational superstition for Noonan. Apparently Noonan agrees with Mark Tushnet, Robert Bork, and other luminaries who reject natural right. Tushnet, for example, says that believing in natural rights is like believing in ghosts.
I won't rehearse Philip Hamburger's 1992 demolition ("A Constitutional Right of Religious Exemption: An Historical Perspective," George Washington Law Review (1992), vol. 60, p. 915) of Michael McConnell, who agrees with Noonan that the right of free exercise of religion means that there is a right to disobey the law. Instead, let us consider Madison's argument from reason for religious liberty.
Madison's Rational Argument for Religious Liberty
Why is religious liberty a right? Because it is something that everyone rightly possesses, namely his own thoughts and convictions. Here is Madison, from his article on "Property," 1792:
In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man's land, or merchandize, or money is called his property.
In the latter sense, a man has a property in his opinions and the free communication of them.
He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his person.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."
In sum: the rational basis of what Madison called "the rights of conscience" is the fact that by nature we own ourselves. Nature is not a "talismanic" term carrying supernatural properties. It is reality. We are not owned by others. Human beings are not born slaves. They are rightfully free. Our hands and muscles are our own. So are our minds. Just as we have a right to the fruits of our labor, so also we have a right to the thoughts of our minds, our opinions and faith about the highest things, about God, and to the "profession and practice dictated by them."
Religious Liberty, Not License
The Madisonian passage just quoted sounds quite "libertarian" in today's terms. But Madison was no libertarian. Once it is understood why he was not, the Founders' and almost all earlier Americans' view of religious liberty is easily grasped.
There can be no legal limit on the right to hold any opinion about God (or anything else) that one might wish. That is because our private thoughts, and the actions they lead us to, are our own, and no one can take them away. For this reason the New Hampshire Constitution of 1792 said, "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the rights of conscience."
But there can and should be limits on what actions we perform with our "property," whether property be physical possessions or mental convictions. The limits are set by law. The criterion is injury to another person's life, liberty, or property, or to the society itself. Injury is wrong because people have rights to the free, noninjurious use of their own bodies and minds.
I have a right to own a car. But if I use that car to run over someone who annoys me, the law should hold me accountable.
I have a right to keep and bear arms. But if I use my gun to kill an innocent person, the law should hold me accountable.
I have a right to believe what I wish about God. But if my belief leads me to murder my children as a sacrifice to "God," the law should hold me accountable.
Government Support of Morality
Further, in the opinion of everyone in the founding era, government has an obligation not only to discourage or punish physical injury but also injury to the moral conditions of a free society. Madison explains in Federalist 55: if men do not have sufficient virtue to restrain themselves, "nothing less than the chains of despotism can restrain them from destroying and devouring one another."
Judge Noonan seems mystified by the earlier view that government has a rightful interest in morality. For example, here is how he describes the Supreme Court's ruling in the Mormon cases (1878, 1890): "conduct in accord with one's idea of one's obligation to God could be federally proscribed if the conduct conflicted with morality as conventionally understood by Christians. Specifically, polygamy. . . ." Noonan thinks laws against polygamy amount to an establishment of religion, an imposition of one religion on another. He calls government regulation of sexual morality "the submission of the entire sexual life of the Americans to commandments derived from Christian scripture."
Since we Americans seem to have lost our ability to reason on these subjects, let me explain the earlier understanding of government regulation of sex in the simplest terms.
1. Society needs children for the sake of its perpetuation. Therefore it must favor heterosexual sex and discourage what one might call nonproductive sex (e.g. homosexuality) so that children will continue to be born in large numbers.
2. But if children are to thrive, they need someone to love and care and provide for them. Long experience has shown that the child's biological mother and father are likely to perform these tasks best. Why? Because parents love their children as extensions of themselves, and social workers, however many degrees they may have, do not. Therefore (and following on the first point) the laws and customs of society ought to encourage the connection between sex, love, marriage, and babies.
3. In a free society, the powerful should not be permitted to monopolize the most attractive sexual partners. One to a customer! Polygamy is historically associated with despotism, as the Supreme Court, Francis Lieber, Hegel, and law professor Maura I. Strassberg all agree. Therefore beautiful women and wealthy and prominent men are limited to one partner each in marriage.
4. And once you choose, you don't get to change your mind. For the good of the children, and of the partner who would be abandoned too late to remarry, or who would be deprived of access to his children, marriage was supposed to be like the Roach Motel, at least to this extent: you check in, but you don't check out.
These points were understood if not fully articulated in the Mormon cases. The Supreme Court spoke of "a return to barbarism" if polygamy were to be permitted (The Late Corporation of the LDS Church v. U.S., 136 U.S. 1, 49 (1890)). This repeated the Republican Party platform of 1856, which spoke of "those twin relics of barbarism, polygamy and slavery." Noonan, however, sees no rational concern for civilization, but only a bigoted imposition of Christian sexual mores.
This is one side of Judge Noonan's misunderstanding of the Founders' conception of the limits on religious liberty.
Government Support of Religion
The other side concerns government support for religion. Noonan thinks support in any form amounts to establishment and violates the free exercise rights of those whose religion is not supported.
However, George Washington spoke for almost all the Founders when he said: "Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. . . . And let us with caution indulge the supposition that morality can be maintained without religion. . . . [R]eason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle" (Farewell Address, 1796).
Why does Washington believe religion has a positive influence on morality? Because it teaches people that God's law requires them to restrain themselves, and that if they do not, God will punish them.
To Washington it was obvious that government must promote religion. That is why several states taxed citizens to support ministers. That is why every state promoted religion in various ways short of official establishment. That is why the federal Northwest Ordinance, passed in the same year as the First Amendment, said: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Of course the religion that government almost always supported was not "religion in general" but some version of Protestantism.
Judge Noonan's book has the merit of acknowledging frankly the long tradition, not yet dead, of government support for religion. Noonan invents a character, "Angelique" de Tocqueville, to correct her famous brother's silence about the multitude of ways that church and state were and are intertwined in America. In Tocqueville's pre-Civil War America, Massachusetts taxpayers were still funding the salaries of Protestant ministers in every town. Even today government endorses religious holidays, grants tax exemptions to churches, pays for chaplains, prays on ceremonial occasions, and prints "In God We Trust" on currency.
Noonan thinks that government should not be in the business of supporting religion. Yet he cannot help but notice the positive role religion has played in American history. He devotes a whole chapter to Theodore Parker, a Boston preacher whose religious fervor gave strong impetus to the antislavery crusade that the Civil War eventually became.
Judge Noonan is no ACLU liberal. He does not worry as much as one might expect about the contradiction he perceives between America's principles (no government support of religion) and practice (extensive support). But instead of discovering, or rather rediscovering, the principle by which free exercise is reconciled with government support of morality and religion, Noonan capitulates. He denies that there can be such a principle. He flees into vagueness. He says we should abandon Jefferson's "wall of separation between church and state" metaphor and replace it with "the sponge" or even "semiconductor" of separation. Noonan speaks of his faith in the process by which the doctrine of religious liberty continues to evolve.
Noonan's Faith
Ultimately, Noonan believes in Conscience and is untroubled by what he takes to be our inconsistencies because he believes in Progress. As a young man, he tells us in his autobiographical first chapter, he had believed in the eternal truth of the moral teachings of the Catholic church. His study of the evolution of church doctrine on usury changed his mind. "Plainly, the rule, proclaimed as ordained by God as law, had altered with the centuries. . . . No rule was fixed forever. . . . Mature reflection saw both progress and stability."
Noonan has faith in Progress. He is a Progressive. But if no rule is fixed forever, what then is the ground of law? Is it History? Does Noonan really believe that God or Being is working through history such that all change is for the better? Don't we need an argument from reason precisely here?
Is it not time to abandon this touching but irrational faith in Progress and History?
