A New Approach to Religious Freedom

Dr. Samuel Goldman

On Monday, Oct. 26, 2020, Dr. Samuel Goldman, associate professor of political science at George Washington University and executive director of the Loeb Institute for Religious Freedom, gave a virtual guest lecture to the students in Dr. Neil Rogachevsky’s Straus Center course, “Enlightenment and its Critics,” exploring the history of religious freedom in America. The lecture was part of the “Jewish Ideas and American Government” series, which is sponsored by the Jack Miller Center.

Following up on the class’ in-depth discussion about Thomas Hobbes’ and John Locke’s ideas and writings about the purpose and limits of government and the place of religion in civil society, Dr. Goldman provided a deeper look at the influence of these Enlightenment debates on American thinking about religion and law in subsequent centuries and in the present day.

He began by noting that the Religious Freedom Restoration Act, which guaranteed protection for religious freedom exemptions in federal law, was unanimously passed by Congress and signed into law by President William Clinton in 1993. Since then, religious freedom has increasingly come under attack.  How did this happen? Dr. Goldman introduced an ongoing debate among legal historians about the Constitutional place of religion in early America and likewise its place today. He noted that there is a common myth about religion in the early republic, namely that all the founders intended for there to be a “wall of separation” between church and state, as Thomas Jefferson wrote in a famous letter. This would have reserved religion for private worship and not public political action.

However, Dr. Goldman pointed to recent legal scholarship that challenges this theory, observing that Jefferson and James Madison were religious outliers among the founders as deists, since most of the Constitution’s framers were devout Christians. Rather than a wall of separation, newer scholarship claims that the First Amendment was merely intended to disallow the establishment of state churches and not cast out religion from all government decision-making or public life. This theory better explains the long tradition of the “soft establishment” of religion in American life, from prayer and Bible readings in public schools until the 1960s to state blue laws banning commerce on Sundays.

Dr. Goldman showed that this raging debate about government establishment of religion has enormous significance in religious liberty cases before the courts today. Noting that many legal thinkers from Justice Ruth Bader Ginsburg to Justice Antonin Scalia have worried that granting religious exemptions to neutral laws will lead to discrimination and lawlessness, Dr. Goldman suggested that there is a significant benefit to endorsing “affirmative pluralism,” whereby we accept that in order to have diverse groups in society feel respected and satisfied with government, we may have to make legal accommodations for them now and again. It isn’t clear which side will win out in the end, but by examining the history of American efforts to grapple with problems of religion and state, Dr. Goldman helped us better understand the tensions and roots of religious freedom debates today.