John Inazu on Robert Louis Wilken

The Supreme Court has strengthened an important constitutional protection for religious institutions. Known as the ministerial exception, the doctrine grants extraordinary latitude to churches and other religious organizations to determine the qualifications of key employees who lead their mission and steward their values. The Court first recognized the ministerial exception in 2012 and clarified its scope just this past term. Although lower courts must still define its precise contours, the Court has made clear that the ministerial exception allows religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

That a democracy, or any society, would need this kind of protection for its religious institutions is obvious to some and rejected by others. Robert Louis Wilken adds his formidable voice to this debate and others with his short and accessible book, Liberty in the Things of God: The Christian Origins of Religious Freedom. Wilken’s historical survey begins with early church arguments for religious freedom and includes snapshots of post-Reformation Germany, Calvin’s Geneva, Catholics and Protestants in sixteenth-century France, Dutch Mennonites, English Catholics, and Puritans (and their dissenters) in the American colonies. This broad survey highlights influences beyond standard Enlightenment sources that typically inform the normative and theoretical debates over religious freedom in various Western contexts. In this sense, Wilken’s nuanced attention to theological sources calls to mind Sheldon Wolin’s magisterial Politics and Vision. Like Wolin, Wilken helpfully foregrounds neglected but historically significant theological arguments.

Wilken’s otherwise illuminating argument is somewhat occluded by its framing.  He organizes his historical account around three themes: (1) locating religious belief as an inner conviction of conscience that cannot be compelled; (2) defining conscience to include an obligation to act; and (3) insisting on the divide between earthly rule and spiritual authority. Early in his introduction, Wilken adds a “subsidiary motif” that “religion is seldom an individual matter” but also manifests through religious communities. This framing isn’t wrong, but its focus on individual conscience (with religious communities as an afterthought) undersells the historical and contemporary importance of communal religious practice. Conscience is indeed important to the history of religious freedom. But religious practice is sustained and transmitted through religious communities. The ministerial exception arises out of and protects institutions not individuals. The role of religious communities is not a “subsidiary motif” of religious freedom but integral to its proper understanding and defense.

Fortunately, most of Liberty in the Things of God underscores exactly this point. For example, Wilken notes that the Christian writer Tertullian, the first Western thinker to use the phrase “freedom of religion,” defended Christians against charges that their gatherings amounted to “illegal factions.” As Wilken observes, “Tertullian was defending the rights of Christians to assemble for worship, to organize, to choose leaders, to care for one another, even to have their own burial places for their dead.”

The ability to protect communal religious practices remains viable in a more pluralistic society like ours. Wilken gestures to such a possibility throughout his book, as with his consideration of the English Puritan Thomas Helwys, whose Mystery of Iniquity was the first English work to extend the concept of religious freedom not only to Protestants and Catholics but also to Muslims and Jews. Helwys also named the enemies of this more capacious religious freedom: the religious establishments that sought to compel belief (which in his day included the Catholic (“Romish”) Church and the Church of England).  Elsewhere, Wilken reminds us of the high stakes of securing religious freedom in a pluralistic society.  Upon observing heightened tensions between Catholics and Protestants in the Netherlands, Wilken notes, the French diplomat Philippe Duplessis Mornay asserted: “We can either allow them to live in peace with us or we can all die together.”

The kind of religious freedom that allows us to live in peace in a pluralistic society depends upon a careful parsing of two paired ideas: (1) public and private; and (2) individual and communal.  Religious practice is public as well as private and communal as well as individual. This means religious freedom must not be limited to either individual or private religion. Wilken at times obscures this observation by suggesting that the opposite of “individual” is “public” rather than “communal.” That mistake misses the significance of the communal dimension of religious practice. But it is equally important to differentiate “public” from “private” in the proper way.  In a pluralistic society, religious practice that is not merely “private” is “public” in the sense that it is outward facing, not state-sponsored.

As Wilken shows, arguments that focus only on individual or private religion do not actually lead to religious freedom.  His description of the Dutch allowance for a clandestine church that “could meet for worship without displaying a public face to the city” illustrates the limits of an ersatz religious freedom that does not extend to communal and outward facing religious practices, one that calls to mind contemporary regimes like China and Saudi Arabia.  On the other hand, Wilken’s historical survey shows why religious freedom does not require state-sponsored religion.  When governments privilege some faiths over others, the pluralistic breadth of religious freedom seldom lasts very long.

This warning against state-sponsored religion also surfaces an unavoidable cost of religious freedom in a pluralistic society: the state always maintains some normative baseline, and any practice that refuses to conform to that baseline necessarily destabilizes social unity. The point is both self-evident and often overlooked. Wilken calls attention to it most directly in noting that religious dissent in the sixteenth and seventeenth centuries was most acute when religious associations “refused to participate in the customary rituals” and thereby “offended the piety of the people and fractured the unity of society.” Social unity depends upon some shared norms, and the more that dissenting communities reject those norms, the more any pretense of unity fractures. That is true of dissent from both religious and non-religious norms: rejecting state-sponsored school prayer, refusing to take the pledge of allegiance, kneeling during the national anthem—all of these embody dissent and strain unity.

Today’s normative baseline for state-sponsored public acts is more non-religious than religious.  This represents a significant change.  As Wilken notes, religion in the Roman Empire was always “an affair of the community as a whole,” and Roman cities did not have “wholly secular” forms of social life. There was a period of American history during which white Protestant expressions of faith assumed a similar role, but that era has ended in recent decades. Americans today argue about aging crosses and ratty nativity scenes, not ubiquitous expressions of state-sponsored religious orthodoxy.

The shift away from a baseline of white Protestantism in this country creates an opportunity for Christians to learn anew from the early church, which sought freedom for outward facing religious practices, not state-sponsored ones.  Wilken observes that third-century Christians “resisted participating in public religious celebrations” and “severed the bond between civic and religious life.” Those descriptions contrast sharply with today’s grandiose patriotic celebrations in evangelical megachurches and the religious rhetoric of President Trump’s evangelical advisors.

Put differently, too many Christians today fail to grasp the significance of the third theme of Wilken’s book: the distinction between the earthly order and the heavenly rule. Politics may be the new public religion for those who have rejected traditional religious faith, but it is also the public—and lived—religion of many who still claim that faith.  The early Christians, as Wilken notes, offered a different model: they were “a corporate body that existed within—but also independent of—the body politic.” The history of religious freedom emerged from subsequent political arrangements that maintained that distinction with varying degrees of success. Liberty and the Things of God reminds us that these historical lessons can help us see the importance of separating the earthly order from the heavenly rule—and the perils of neglecting that distinction.

John Inazu is the Sally D. Danforth Professor of Law and Religion at Washington University in St. Louis.  He is the author of Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012) and Confident Pluralism: Surviving and Thriving Through Deep Difference (University of Chicago Press, 2016).