Home » Perspective » New book combines speech, press and religion in coherent First Amendment narrative

By John R. Vile, published on March 15, 2022

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Review of  This Earthly Frame: The Making of American Secularism, by David Sehat. New Haven: Yale University Press, 2022.

Many books describe the two religion clauses of the First Amendment, others focus on the free-speech and -press clauses, and still others discuss developments related to Supreme Court recognition of the right to privacy, but few discuss them all in in a single coherent narrative.

Professor David Sehat, a historian at Georgia State University who had previously published two related books (The Jefferson Rule and The Myth of American Religious Freedom), has combined all three in this extremely useful volume, the title of which he took from Psalm 8:9’s reference, as recorded in the Book of Common Prayer (1818), to all creatures “within this earthly frame.”

Noting that the text of the Constitution never mentions God, Sehat observes that, in contrast to secularism as understood in some other countries, this secularism of non-establishment was positive rather than negative. Further, it “included an embrace of pluralism, of free exchange and disagreement on religion matters, of freedom of inquiry in public life, and of freedom from any official or established perspective, whether religious or nonreligious.” In examining the origins of the First Amendment, Sehat suggests that non-establishment “meant too much” and “had a plenitude of meanings.” The idea of religious disestablishment grew out of concerns not only by those who opposed religious influences on politics, but also by dissenting Protestants who had suffered at the hands of religious establishments, and by those, like James Madison, who believed that such establishments ultimately weakened faith by attempting to subsidize it.

With both its strengths and weaknesses, the First Amendment did not anticipate the Second Great Awakening and its “enlargement of the role of religion in public life,” largely through the rise of voluntary associations that sought control over a number of perceived and actual vices such as drinking, gambling, slavery, and Sunday mail delivery. Legislation regulating such matters did not initially conflict with the First Amendment, because Congress had limited its scope to control of federal actions (the amendment begins with the words “Congress [an institution of the national government] shall make no law”), and, even then, as in federal cases involving the Church of Jesus Christ of Latter-day Saints, the Supreme Court permitted the control of actions, such as polygamy, that offended general sensibilities based on more-predominant Christian views.

Sehat attributes the expanded reach of the First Amendment not simply to the adoption of the 14th Amendment by which the Supreme Court eventually applied all of the provisions of the First Amendment (and most provisions within the Bill of Rights) to the states as well as to the national government, but further to Justices Oliver Wendell Holmes Jr. and Louis Brandeis, and the rise of sociological jurisprudence in the 20th century. Sehat ties developments in the doctrine of free speech to the position that Brandeis had articulated (with his law partner Charles Warren) with concern over privacy and the importance of such privacy not only for the general good but also for individual personal flourishing. Although many advocates of sociological jurisprudence were secularists, many of the early cases they faced dealt with the group founded by Charles Taze Russell, today known as Jehovah’s Witnesses. Although Supreme Court justices initially upheld compulsory flag salutes, they were revolted by the violence that these spawned against the Witnesses, and decided that acknowledgement of their rights to refuse to participate in such salutes, to distribute literature, and to be exempt from military service contributed to pluralism.

Sehat does an especially good job not simply of chronicling a wide variety of Supreme Court cases relating to freedom of speech and religion but also of including details about individual lawyers, litigants, and other case-specific facts that go beyond those typically detailed in constitutional law casebooks. Even individuals who are familiar with key decisions will find fascinating factual morsels as they read this book.

Although they vigorously defended their own religious rights, the Witnesses continued to rail against the Roman Catholic Church, which initially did itself few favors by both holding itself apart from other denominations and announcing “a public authority over everyone,” as in its role is establishing the League of Decency to monitor movies and its support for foreign dictators who were friendly to it. In time, John Courtney Murray and the Second Vatican Council moved the Catholic Church to a more positive embrace of pluralism and democracy that distinguished between the standards for members of the church and those of the world. Moreover, Protestant fears of “political atheism” aligned with Murray’s fears of “secularism,” and, in time, evangelical Protestants and Roman Catholics would unite around a variety of social issues.

During the presidency of Dwight D. Eisenhower, the Cold War served to link the values of American democracy and religion, as in Congress’s recognition of “In God We Trust” as the national motto, and its insertion of the words “under God” in the flag salute. Because such public affirmations were so general, however, they were also quite vague. When running for president, John F. Kennedy, a Roman Catholic, further articulated the view that religion was largely a private matter, and that none of his own policies would be dictated by the Roman Catholic hierarchy. Both conservative Protestants and Roman Catholics opposed Supreme Court decisions restricting religious classes, prayer, and Bible reading in public schools, which Sehat believes were at odds with the Court’s opinions upholding Sunday closing laws on secular grounds. The alliance between Protestants and Catholics was further aided by mutual antipathy to claims, mostly by liberal academicians, that God was dead.

Sehat believes there was a connection between the idea that religion was personal and the Court’s decision in recognizing a right to privacy in in Griswold v. Connecticut (1965) and Roe v. Wade(1973). These cases respectively recognized the right of married couples to use contraception and a somewhat more limited right to procure abortions.

As gays and other once-outside groups gained recognition of their rights, religious groups, in turn, pressed for greater recognition of their own rights. After the Supreme Court decision in Employment Division, Department of Human Resources of Oregon v. Smith (1990), upheld generally applicable criminal laws that adversely affected religious free exercise (in this case the right of Native Americans to ingest peyote), Congress adopted the Religious Freedom Restoration Act (RFRA) and similar legislation. In time, religious groups used these laws both as a “sword” on behalf of their free-exercise rights and as a “shield” against religious establishment. In the meantime, the philosopher John Rawls was attempting to develop a common vocabulary that would allow religious individuals to participate in politics without expecting to be able to impose their values on those who were not religious.

Former President Donald Trump’s support for exempting conservative religious groups from some of the consequences of laws protecting gay rights and/or of forcing them to pay for national health insurance for contraceptives or abortions, to which they objected, explains why so many of them rallied to his side. Suggesting that religious authorities continued to be subject to seduction, Sehat also notices that, in speaking before an evangelical audience, Trump promised that “Christianity will have power. If I’m there, you’re going to have plenty of power, you don’t need anybody else. You’re going to have somebody representing you very, very well.” Not surprisingly, Sehat also notes the increased appeal of the Republican Party among active churchgoers and increased support of Democrats among those who are not.

Sehat concludes that whereas the “privatization of religion and the language of privacy itself” were a response to the cultural dominance of Christianity throughout much of the 19th century, “privacy has become uncertain in value and volatile in valence.” Current legal controversies often pit the values of pluralism against those of equality, and current issues require a clear-headed understanding of U.S. religious history. This book is an important contribution to this understanding and, because of its theoretical scope and sophistication, is especially appropriate for upper-division college and university students and for scholars of American law and religion.

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