From The Law and Politics Book Review

Vol. 8 No. 10 (October 1998) pp. 370-372.

THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM by John T. Noonan, Jr. Berkeley: The University of California Press, 1998. 436 pp. Cloth $35.00. ISBN 0-520-20997-4.

Reviewed by Richard A. Glenn, Department of Political Science, Millersville University, Pennsylvania.

 

"Free exercise [of religion]--let us Americans assert it--is an American invention.... Never before 1791 was there a tablet of law, a legal text guaranteeing to all a freedom from religious oppression by the national legislature. Never before 1791 such a public, almost unalterable commitment to this ideal." So begins John T. Noonan, judge on the United States Court of Appeals for the Ninth Circuit and Robbins Professor Emeritus of Boalt School of Law at the University of California at Berkeley, in THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM--an examination of the development of religious freedom in the United States; and the influence of that freedom throughout the world, both past and present. This remarkably well-researched and clearly written book surveys the critical episodes in the struggle to eliminate governmental coercion of religious belief. These episodes cannot be recounted too often; their memory is worth preserving.

Noonan finds it "incumbent" to acknowledge his Boston Catholic upbringing and heritage, and thus, his bias. (Even as a boy, Noonan recalls, he was aware of the battles within the Catholic church over corruption, the lottery, and contraception. Noonan has since published scholarly books on the history of bribery and the Catholic Church's teachings on birth control.) Noonan is to be commended for conceding his bias, and for reminding us that our personal formation of an idea shapes our account of religious freedom. That bias, however, does not take away from this work of immense learning. Noonan communicates simultaneously and effectively with the academic and the layperson, the believer (Catholic and non-Catholic) and the atheist, the American and the foreigner. His writing avoids technical terms, yet is not perfunctory; evidences solid historical research, yet is not trite; simplifies complicated legal decisions and issues, yet does not obscure the central problems presented by them. Without question an intellect, Noonan abandons such pretenses and invites the reader into an important dialogue on the importance of individual conscience.

THE LUSTRE OF OUR COUNTRY is divided into three sections. The first, "History," details religious freedom as it existed, "cramped and confined," prior to the passage of the First Amendment in 1791; and then focuses on the contributions of James Madison. The second portion of the book, "Problems" chronicles the multitudinous difficulties that the Supreme Court has faced in attempting to reconcile religious freedom with the existence and responsibility of government. The final part, entitled "Influences," reviews the American influence of free exercise on France, Japan, Russia, and the Catholic Church.

It is now well established that while religious toleration served as a rallying cry for many seeking refuge in America, it was not to become a tenet for their newly established society. Baptists were beaten; Quakers were executed. Noonan details some of the not-so-well-known experiences of early immigrants using an engaging question-and-answer--he calls is catechetical--format. Like many before him, he concludes: "[Nleither the soil of America, nor the experience of having suffered persecution, nor explicit belief in freedom of conscience were sufficient in themselves to prevent man from carrying out persecution on account of religion." Yet while church and state were allies in early America, an opposing tradition, one uniquely American, was unfolding as well.

[ENTER THE HERO]

In most discussions of religious liberty in the American pantheon, Thomas Jefferson receives the credit. Not so in Noonan's account, where James Madison (to whom Noonan refers as JM) is the hero. Though overshadowed by Jefferson, JM was the first person who "had enough empathy with the victims of persecution to loathe the idea of enforced religious conformity and to work to enforce a law that would forever end it." It was JM who convinced the drafting committee to replace "fullest toleration" with "full and free exercise of [religion]" in the Declaration of Rights for Virginia. It was JM who authored the MEMORIAL AND REMONSTRANCE and garnered the requisite votes for passage of Jefferson's BILL FOR ESTABLISHING RELIGIOUS FREEDOM in Virginia. It was JM who worked diligently in promulgating the Constitution of the United States, co-authoring The Federalist, and drafting the First Amendment guaranteeing religious freedom from congressional intervention. It was JM who called religious freedom "natural and absolute," and "wholly exempt' from social control. It was JM who interpreted free exercise as no governmental interference whatsoever with the obligation of conscience. Separateness meant separateness: no public support for a church; no tax exemptions for churches; no congressional chaplains; no executive proclamations of religious holidays, and so forth. More than any other individual, JM was responsible for religious liberty becoming "the first of our liberties" and "a lustre to our country."

Despite Madison's best efforts, however, government affects religion and religion government. Noonan is wise to cede this up front. Alexis de Tocqueville, who noted that in the United States religion never mixed "directly in the government of the society," was wrong. Using an unpublished account of Angelique de Tocqueville, younger sister of Alexis, Noonan gives evidence of the numerous ways m which the law was brought to bear on religion in the nineteenth century.

The second part is more analytical and less historical, examining this often controversial relationship as it has played out in Supreme Court adjudication. To do so, Noonan records a discussion on religious freedom among fictitious characters, chief among them Samuel Simple. Opening the dialogue, Simple states, "All I need to do is keep government out of religion, and religion out of government. Like oil and water, they can't mix. It's too obvious for words." A cleverly-crafted debate then convinces Simple to abandon his sweeping remark: "I want to give to each person the full measure of free exercise the Constitution has allotted. But I have tripped over contradictory precedents, been entangled in brambles of judges' making, and been showered with the thousands of words judicial decisions have added to a sixteen-word constitutional amendment."

At one point in the conversation, the characters discuss the Supreme Court's recent proclivity to decide religious freedom cases on free speech grounds, thus, in effect, ignoring the Religion Clauses. Noonan appears to disapprove of this approach. In what may amount to subtle advice to judges, Noonan, speaking in character, offers the following obiter dicta, "Religion is speech sui generis.... It has been singled out by the Constitution for special protection. That special status reflects the belief of Madison and other makers of the Constitution that the human obligation to God is different from all other human obligations. To allow the acknowledgment of the claims of conscience to lapse into desuetude would be to abandon a precious portion of the Bill of Rights." Noonan also appears to reject the oft-used metaphor of the "wall of separation"; "semiconductor' may be more appropriate.

A conductor, like gold or copper, transmits

electricity without resistance; you get more electricity than you want. A nonconductor, like plastic, won't transmit at all; you have no electricity. A semiconductor, like silicon, passes on a small, controlled amount of electricity which enables you to have exactly as much power as you need. You don't want the full blast of religion on government, that's too much light or too much heat. But a government without religion is like a computer without electricity. A government needs the charge, in small amounts. The constitutional provision can work admirably as a semiconductor.

Here again, Noonan recognizes that government and religion are inextricably linked. Courts are called upon to resolve church disputes, to determine the sincerity of religious beliefs, to judge the appropriateness of public aid to religious schools, and to pass on the constitutionality of government-sponsored chaplains and prayer, to name just a few of the ways these entities interact.


Copyright 1995