In 1811, a New York man named Ruggles, probably drunk, shouted in a public venue, “Jesus Christ was a bastard and his mother must be a whore.” He was subsequently arrested and charged with blasphemy, a charge he claimed lacked any merit because New York did not have a blasphemy law and, even more to the point, the state's constitution guaranteed religious freedom.
The court did not care. It found Ruggles guilty, somewhat remarkably citing the common law of the state. Because Protestant Christianity was a part of the Anglo-American way of life, the court held, blasphemy was a punishable crime. To contend otherwise would be “to corrupt the morals of the people, and to destroy good order” (61).
The Ruggles case had a domino effect, creating a precedent for other decisions, which, once the U.S. Supreme Court signed on in 1844, codified, outside the confines of legislative statute, a “moral establishment” of Protestantism that existed throughout the 19th century and well into the 20th century. From Ruggles forward, the United States lived with a “proxy religious establishment” that ruled from the courts and bled into greater society at large (287). As the American jurist James Kent put it, this coercive moral establishment came into being “not because Christianity was established by law, but because Christianity was … the basis of the public morals” (63).
Giving a name to this cultural and judicial construct, one we all knew existed but didn't quite know how to talk about, is the major contribution of David Sehat's The Myth of American Religious Freedom. The book is a wide-ranging affair, beginning with Benjamin Franklin and ending with Citizens United, traversing the debates of the United States Constitutional Convention, the long women's rights movement, the even longer movement for African-American civil rights, laws about blasphemy, bigamy, socialism, corporations as people, and much, much more. What ties it all together is Sehat's constant search for those who would limit individual freedoms in the name of upholding moral order. They were the “moral establishment” and, frequently but not always, these defenders of moral order relied on Protestant Christianity to decipher right from wrong, leading to a “proxy religious establishment” that, according to Sehat, has existed throughout much of American history.
The narrative starts out well, taking us through the ambivalent years of the nation's founding, when politics and ideology mixed in ways that led to compromises that did not exactly create clear policy. The First Amendment's dual religious provisions about establishment and free exercise left ample room for religious folks to shape the cultural discourse and eventually work their way through the courts. And that's exactly what they did during the first decades of the 19th century, as the courts used common law justifications to bring into existence a proxy religious establishment, creating precedents for other courts to follow, and a language to be used in the fight against those who might demand rights that seemed threatening to the conservative moral order.
The women's movement was one such place of dispute. In the long fight for increased women's rights, advocates like Elizabeth Cady Stanton and Victoria Woodhull argued that women deserved more than the restrictive legal space allowed by covertures and even marriage. Marriage, they held, should be just another dissolvable contract between consenting individuals. Sure enough, these individualist demands were countered by “moral establishmentarians,” who said that having too much in the way of individual rights threatened to undermine the nation's moral order. The story is long and fascinating, and Sehat tells it well; throughout the 19th century, nearly every argument made on behalf of expanding individual rights for women was successfully countered by those claiming that such rights would disrupt the great consensus. The courts made it so.
African-Americans faced a similar lot. Their claims for increased rights were sometimes supported but more often countered by racist notions that black people were not yet ready to participate as full members of society; if allowed to do so, “moral establishmentarians” claimed, they would disrupt social order. Thus the courts set precedent after precedent denying African-Americans' their rights, most especially in Plessy v. Ferguson.
Religious minorities like Mormons and Catholics fared no better. The individual rights demanded in the Mormon polygamy cases were successfully countered by moral order arguments — forget your individual rights, “moral establishmentarians” held, because they threaten “normal” moral order. Protestant bible readings in public schools were upheld despite Catholic claims that such readings were establishing a national church, and monies were denied to Catholics seeking to go their own way and build what came to be a vast parochial school system. All in the name of moral order.
In such ways, the Protestant moral establishment exerted its control, stifling claims for expanded individual rights and setting up a proxy Protestant religious establishment. Knowing all this helps make sense out of many otherwise-bewildering court cases.
The story becomes more complicated when we get to the 20th century. This happens for two reasons. First, the arguments changed. The Industrial Revolution of the late 19th century meant that hardly anyone made pure individualist arguments anymore; the powers of industry were too strong to be fought alone. The moral establishment was thus left fighting opponents who were also making broad “common good” arguments, and it was hard to say why one vision of the common good was any better than another. How, again, does socialism disrupt moral order? It had been easier to fight against the individualism proffered by the earlier radical movements.
Second, and more importantly, the moral establishment came under assault from a sizeable and increasingly well placed group of minorities, including Catholics, Jews, and more secular types. Beginning in the 1920s, members of these groups were able to disrupt the forward-progress of the moral establishment. It is no accident that two of the jurists most responsible for seeing Protestant religious coercion for what it was were Felix Frankfurter and Louis Brandeis, Jews who understood the coercive dynamics of the proxy establishment. Simultaneously, the “moral establishment” itself began to fragment. Evangelicals separated from fundamentalists and both drifted from liberal Protestants. This fragmentation combined with the growing strength of an opposition, leaving the moral establishment under assault during the middle of the 20th century — years notable for judicial decisions favoring religious pluralism.
As we delve into this fragmentation, although, questions emerge. We begin to wonder who exactly built this “moral establishment,” and who maintained it throughout the 19th century. American Protestantism has never been a unitary thing. Sehat occasionally lists a handful of names, and he insists that the moral establishment “was real” (9), but whose version of Protestantism was being upheld? Was it blue-blooded Episcopalians, who dominated many of the New England business ventures through to the 1960s? Was it the more evangelical types who rose to prominence during the Second Great Awakening? Methodists? Baptists? Some other group(s)? By the end of the book it is Catholics like William F. Buckley, Jr. and neo-conservative Jews who are shouting in the name of moral order. Is it, then, a Protestant beast at all? The concept of a “moral establishment” is an extremely useful tool, and, considering that Sehat has given us a dynamic framework to understand it, I wish he had done more to unpack who and what faiths actually drove it, and how membership has changed over time. Is it anything more than a reservoir of power? If so, is this not just one long tale of secularization? We need to know more about this “establishment” if we are to be sure “it was real” (9).
My other quibble is the overarching framework of a “myth of American religious freedom.” Sehat takes great pains to argue that America never really had religious freedom because of this proxy establishment. On one hand, one objects by demonstrating that, despite the presence of a “moral establishment,” the United States has been exceptionally welcoming to many, many faiths, both immigrant and homegrown. How does that figure in? On the other hand, anyone who has ever dabbled in American religious history can tell stories of persecution done in the name of faith. Just ask anyone about Roger Williams, the Salem witch trials, Mormons, Catholics, Jews, Seventh-Day Adventists, Jehovah's Witnesses, Christian Scientists, Baptists, Methodists, and more. Making the claim that American religious freedom is a myth is either dependent on too narrow a definition of religious freedom or is flat-out wrong; either way, it is unnecessary for Sehat's book. This framework does not add much to what is an otherwise powerful conceptual gift.
But these are quibbles. At the end of the day, the book helps codify a broad understanding about religion in American life. This story starts with a declension narrative of the fall from Puritanism, a fall that began almost as soon as the Puritans landed on these shores. There is then an Enlightenment-assisted embrace of religious pluralism throughout the 18th century, culminating in the religious liberties enshrined in Article VI of the Constitution and the First Amendment. Then, a huge array of cultural Protestantism leaped forward under the auspices of the Second Great Awakening in the early 19th century, helping craft the idea that America was a “Protestant nation.” This is the legal and intellectual story Sehat provides us with, finally giving this Protestant crusade a serviceable name: “the moral establishment.” But this notion of Protestant nationhood then breaks down under the weight of religious pluralism in the 20th century, culminating in numerous legal decisions for religious pluralism by the 1960s, decisions that outlawed prayer and devotional bible reading in public schools and otherwise helped denude the public sphere. Since then, the Religious Right has tried to tilt back the scales, with, perhaps, some successes.
For giving us an expansive and creative interpretation of the 19th-century Protestant retrenchment, Sehat has done us a great service. He may well stretch his arguments too far at times, but his subject certainly is an important one, well worthy of the telling examination one finds in The Myth of American Religious Freedom.
