Introduction
Religious liberty was a cornerstone of the U.S. Justice Department’s agenda under the Trump administration. Perhaps the most well-known articulation of this effort is former attorney general William Barr’s 2019 address at the University of Notre Dame.Footnote 1 Barr set out the crusade in stark terms: religion is in an existential war with “militant secularism.”Footnote 2 This secularist enemy, Barr proclaimed, is the “doctrine of moral relativism.” Unleashed on society, moral relativism is not content with personal disenchantment; in Barr’s understanding, it instead seeks to deprive the entire society of religion’s “moral discipline.”Footnote 3 Secularism is, therefore, not the absence of religion; it is, instead, a form of “orthodoxy,” a false paganistic faith.Footnote 4 For all the outrage that greeted Barr’s speech, his critique of secularism is certain to survive the departure of the Trump administration, not least because it resonates in sections of the academy. Take two prominent examples: Steven Smith and Adrian Vermeule, have argued, like Barr, that secularism is a false faith on a mission to marginalize true religion.Footnote 5 In this narrative, the siege on faith has culminated in the gradual secularization of society, notably regarding the family, sex, and schools. The result, as Barr declared, has been “moral chaos … immense suffering, wreckage, and misery.”Footnote 6 Crucially, however, for Barr, secularism’s wins are not merely cultural victories but are devastating attacks “against religion on the legal plane” carried out through a separationist notion of the Establishment Clause. It is, therefore, in law that the secularist enemy becomes a more lethal foe: church-state separation. As the legal expression of the secularist agenda to eliminate religion from society, separationism, argued Barr, seeks to “drive religious viewpoints” from the “public square” and consequently, “impinge on free exercise.”Footnote 7 If the secularist project described by Barr is being executed by organizations such as Americans United for the Separation of Church and State, its philosophical blueprint was laid out in John Rawls’s well-known works on liberal secularism.Footnote 8 The task, Barr declared, is to “resist” this “secularization” project by championing religious liberty.Footnote 9
This resistance is achieving outstanding success. Today, a marked feature of the Supreme Court’s jurisprudence is “religious antiliberalism”—the broad conception of the free exercise of religion and the simultaneous constriction of the constitutional prohibition of church establishment.Footnote 10 A survey of the Court’s jurisprudence in the last decade reveals the triumph of parties making religious liberty claims.Footnote 11 Many emphasize that this triumph of religious liberty is not a win for all religions; it is the victory of “the dominant religious tradition.”Footnote 12 Richard Schragger and Micah Schwartzman refer to this trend in U.S. constitutional jurisprudence as “Christian Preferentialism,” comparing the favor with which the recent Court has received Christian free exercise claims to its attitude to religious minorities.Footnote 13 This direction of Supreme Court jurisprudence, complemented by the executive branch’s religious freedom agenda, has led another author to announce the onset of “an age of prophylactic free exercise,” one in which Christian religious freedom ranks higher than church-state separation.Footnote 14
In what follows, I situate U.S. religious antiliberalism within a longer genealogy—that of the global mission to marginalize secularism and advance Christian religious liberty that culminated in the making of the human right to religious liberty in the aftermath of the Second World War. The actors in that story are familiar: a powerful Protestant coalition—ecumenical and international, yet featuring prominent U.S. Evangelicals—successfully crafted a Christian notion of religious liberty to contest secularism. In particular, ecumenists were concerned about the deployment of secularism by colonial powers, most infamously the British Empire, to frustrate Christian missionizing in the “non-Christian world.”Footnote 15 Muslim Africa, long coveted by missionaries, was a major front in this ecumenical struggle. Given the British Empire’s penchant for indirect rule through indigenous institutions, the colonial state governed Muslim Africa through precolonial Islamic institutions. At the same time, however, the state asserted its secularity, insisting that its alliance with Islam was merely instrumental and invoking religion-state separation as its justification for curtailing Christian missionary activity. The colonial state contended, in essence, that secularism was congruent with governance through Muslim institutions.Footnote 16
Ecumenists regarded this duality—the state’s governance through Islamic institutions, and the state’s invocation of a secularist notion of religion-state separation as a justification for prohibiting missionary activity—as a coherent constitutional arrangement. Far from contradictory, Islam and secularism were, in fact, characterized as complementary in ecumenical discourse. As though to foreshadow Barr, ecumenists regarded secularism not as the absence of religion but rather as the state’s separation from true religion. Secularism could, therefore, coexist with false orthodoxy, in this case, Islam. Yet, that same unchristian separation, ecumenists argued, had robbed state and society of its Christian glory.Footnote 17 Their response, prescient of the Barr agenda, was to craft a Christian preferentialist notion of religious liberty. This Christian notion of religious liberty was encapsulated in Article 18 of the Universal Declaration of Human Rights, which has since come to be regarded as the paradigmatic modern international religious liberty provision.Footnote 18 Article 18 was, in sum, the product of an impassioned contestation between a Protestant ecumenical movement keen on securing a prerogative to carry the gospel to all the “non-Christian world”Footnote 19 and a secularism in a strange alliance with Islam. I excavate the genealogy of that contestation. In doing so, my goal is not to eclipse the specificity of the anxieties behind the national struggles over religion and religious difference. Rather than a straightforward historical progression, this genealogical account is, after all, one of both unmistakable continuities and striking reversals. My intent is to make a case for a close study of the encounters that galvanize the constitutional ideas of religious liberty and secularism without losing sight of what global connections reveal about law’s complex relationship with faith and power.
Critiquing Unchristian Separations: Edinburgh 1910 and the Early Ecumenical Roots of Religious Liberty
Gathering at the inaugural moment of modern global ecumenism in June 1910, the World Missionary Conference deliberated over the fate of proselytization in the “non-Christian world.”Footnote 20 For the ecumenical leaders gathered at Edinburgh, proselytization was the culmination of Evangelicalism’s spiritual premise, “that Christ died for the world,” into a project—“the world must be changed for Christ.”Footnote 21 It was in pursuit of this project that the conference commenced the task of envisioning a governance design that would be conducive to this missionary enterprise. The deliberations of the commission empaneled by the conference to ponder the question of mission-government relations revealed the beginnings of twentieth-century ecumenical thought on religion-state design in the context of missionizing to the non-Christian world.Footnote 22
The Edinburgh view started from the premise that European governments were “Christian;” at the same time, however, ecumenists regarded the complete fusion of church and state as a feature of “non-Christian” states.Footnote 23 “Christ,” Reverend Professor G. Hausseleiter of the University of Halle and author of the commission’s study argued, “drew” a “distinction between the Kingdom of the Emperor and the Kingdom of God.”Footnote 24 Nevertheless, this relationship between the two spheres was not one of separation since Caesar’s sphere is not free of God.Footnote 25
The Edinburgh conference report, therefore, espoused a hostility to ungodly separation arrangements. To trump ungodly separations, the report declared the superiority of the principle of the “freedom of the church and mission.” As Hausseleiter argued, freedom of the church and mission is “in the interest of the state” since both are the “conscience of the state.” Beyond this state-interest rationale for the superiority of the church and mission freedom principle, the case for the supremacy of the freedom of church and mission also hinged on suspicion of the state. If states are vested with the sole discretion to determine the place of the mission, Hausseleiter posited, they would invoke the principle of state-mission separation to “try everywhere completely to exclude the Mission.”Footnote 26
Hausseleiter’s religion-state model was not an abstract guide; it was articulated in the context of ecumenical frustration with imperial powers’ invocation of the principle of state-mission separation to justify restrictions on missions. Of these, the case of the British Empire in Muslim Africa was a source of particular concern. In those colonies, the British Empire’s assertion of religion-state separation—the central element of the imperial governance idea of secularism—was complemented by its utilization of Islamic institutions to govern the indigenous population.Footnote 27 Yet, ecumenists hardly regarded the alliance of secularism and Islam as paradoxical; as ecumenical thought laid out with greater clarity in later years, secularism was not separation from all religion, it was separation from Christianity.Footnote 28 It was, in essence, an unchristian separation. This governance design that allied empire with indigenous institutions while espousing empire’s distance from Christian missions had first emerged in mid-nineteenth-century British India.
British Imperial Secularism
By several accounts, strains of the constitutional idea of secularism began to emerge in the British Empire in the mid-nineteenth century.Footnote 29 The 1857 mutiny in British India, understood as a rebellion of the colonized against the empire’s civilizing project, was the immediate catalyst.Footnote 30 That revolt led the colonial state to abandon cooperation with missions and turn to governance through indigenous institutions.Footnote 31 By announcing a commitment to the religious freedom of colonial subjects, Queen Victoria’s 1858 declaration of religious and cultural autonomy complemented the imperial turn from the pursuit of “civilization” to embracing indigenous ways.Footnote 32 Consequently, the classical feature of liberal secularism, the state’s separation from religion, was enacted—at least in the formal sense. Although missionary pressure soon induced the state to begin insisting on some distance from indigenous religions—even while it continued to govern through those institutions—missionary advocates were hardly committed to religion-state separation per se. What missionaries desired was a return to their original alliance with the state, the ultimate expression of the freedom of the church and mission. It was when that bid failed that they sought the barest minimum: empire’s equal distance from all religions.Footnote 33 Although native institutions continued to be instrumental for the purpose of administering the territory, the empire, nevertheless, began to espouse secularism as a statecraft principle for managing religious difference.Footnote 34 Invoked not only directly but also through a variety of ideas—neutrality, tolerance, impartiality—secularism’s essence of avowing religion-state distance had come to be embedded in colonial thought and policy. The working out of this constitutional idea came to be tied to the peculiarities of local colonial governance practices; yet one of its clearest articulations across the empire was the colonial state’s dissociation from missions.
By the time the English prime minister Lord Robert Gascoyne Cecil delivered the keynote at the bicentennial of the Church of England’s Society for the Propagation of the Gospel in Foreign Parts on June 19, 1900, this mission-empire separation policy had been crystalized. Lord Cecil sought to explain the rationale for this colonial policy to his missionary audience: empire-missionary alliance, Cecil argued, was bad, both for missionaries and the British government. It detracted from the missionary enterprise because it diminished “the purely spiritual aspect and action of Christian teaching” and hurt the government by representing that it was partial to missionary interests. Since Cecil was delivering his speech while the Boxer Rebellion, noted for its widespread attacks on missionaries, was ongoing in China, the prime minister was quick to cite the Chinese example: “You observe that all the people slaughtered [by the Chinese] are Christian. Do you imagine that they are slaughtered simply because the Chinese dislike their religion? There is no nation in the world so indifferent on the subject of religion as the Chinese. It is because they and other nations have got the idea that missionary work is a mere instrument of the secular government in order to achieve the objects it has in view. That is a most dangerous and terrible snare.”Footnote 35
Missions, Empire, and Islamicate Africa
Given this long history of British imperial secularism, Edinburgh ecumenists understood that Islam was not the only religion being privileged by the British Empire to the disfavor of Christianity. In fact, the missionary experience in India was also a matter of deliberation at the conference, and Edinburgh deliberations reflected a disapproval of all unchristian separations. Islam, however, remained central to this critique. Indeed, while the commission concluded that the jury was still out on the India case, it was unequivocal that Islam was emblematic of the unfriendly religion-separation promoted by the British government.Footnote 36
Ecumenists’ preoccupation with Muslim Africa was undoubtedly tied to the allure of both Islam and Africa to the missionary enterprise. Islam had long been dominant in the missionary project and African Islam was a uniquely formidable challenge. As Thomas Prasch put it: “For the late-Victorian missionary enterprise, Islam represented the quintessential Other: the faith that was most resistant, most competitive. And for Victorians, Africa was the obvious arena of contention, the blankest continent on the imperial map.”Footnote 37 That missions regarded Islam as a competitor in this campaign for souls only heightened the attraction of the African Evangelical mission. As the Edinburgh report acknowledged, “the ubiquitous and rapid advance of Islam is the great challenge to urgency in the evangelization of Africa.”Footnote 38
Three territories were of “extreme concern” to ecumenists—the British colonies of Sudan, Egypt, and Northern Nigeria.Footnote 39 The mission-minded churchmen found the case of Northern Nigeria particularly troubling. The convener of the Edinburgh conference, Joseph H. Oldham, was no stranger to the mission question in Northern Nigeria. Oldham, a Scottish missionary of the Church Missionary SocietyFootnote 40 and founder of the first international ecumenical Protestant group,Footnote 41 was an ardent advocate for missions struggling to access the Northern Nigeria mission field. Northern Nigeria was home to Sokoto, the renowned caliphate of precolonial Africa, and continued to be widely regarded as one of the most orthodox Islamic polities in the first half of the twentieth century.Footnote 42 Writing of Northern Nigeria’s legal system, J. N. D. Anderson, Christian missionary, foremost Western Islamic law expert, and professor at the School of Oriental and African Studies in London observed: “At present … Islamic law is more widely, and in some respects, more rigidly applied in Northern Nigeria than anywhere else outside Arabia … orthodoxy … has been preserved first by a century of virtual isolation and then by half a century of colonial administration.”Footnote 43
Anderson’s assessment was hardly inch-perfect since colonial indirect rule did not conserve the precolonial caliphal theocracy. In fact, European administrators’ description of the Muslim chiefs as “secular chiefs” through whom the state governed was a subtle reference to the radical colonial reform of caliphal institutions.Footnote 44 Nevertheless, the state was entangled with caliphal institutions in ways that privileged those institutions relative to those of other faiths. Notably, the empire turned a blind eye to precolonial religious diversity and multiple state formations and governed the now united territory through its caliphal intermediaries.
The colonial policy restricting Christian missions was closely tied to this governance arrangement: missions were prohibited from proselytizing in areas with Muslim populations, which effectively kept the project of the gospel out of large swaths of the territory. The result was that missionary efforts bore little fruit; when the 1952 census was conducted more than five decades after the commencement of missionary activity, it merely confirmed what missions feared: Christians were a mere “sprinkling” of the population, at 2.3 percent.Footnote 45 Muslims, however, remained the majority at 73 percent and adherents of diverse indigenous non-Muslim religions, constituted 24.13 percent.Footnote 46
Placing the blame for the dismal performance on the colonial religion-state design, Edinburgh 1910 declared it “a disgrace to British rule in tropical Africa that it should anywhere favor Islam and discourage the extension of Christian missions.”Footnote 47 Conference delegates accused the British colonial government of enacting religion-state separation to the benefit of Islam and simultaneously, to the disfavor of the Christian missionary enterprise. The misfortune in Muslim Africa was, therefore, not merely the British Empire’s separation from Christian missions; it was also its alliance with Islam. In particular, Edinburgh 1910 delegates were concerned with the obstructive effect of the classical Islamic legal doctrine of ridda (apostasy) on missionary proselytization efforts.
Religious faith and citizenship were closely intertwined in the Islamic polities that raised ecumenical concerns.Footnote 48 Non-Muslims were levied jizyah, a tax symbolizing their acceptance of the sovereignty of the Islamic state—and an equivalent of the zakat levied on Muslims. Like the political-cum-legal doctrine governing religious difference, the classical legal doctrine of apostasy (ridda) was symptomatic of the nexus between faith and citizenship.Footnote 49 In a state where religion was the basis of citizenship, to renounce one’s religion was tantamount to shedding oneself of the obligations of citizenship to the state and akin, according to some scholars, to the modern doctrine of treason.Footnote 50 The major Sunni schools of Islamic jurisprudence prescribed both civil and criminal legal consequences for ridda, including in some instances, the capital penalty.
It is, therefore, hardly surprising that the critique of the doctrine of ridda came to feature prominently in international ecumenical deliberations on the legal design of a religious freedom provision that would liberate the missionary enterprise. Edinburgh initiated this ecumenical censure, and later ecumenical gatherings intensified the critique. In fact, ecumenical deliberations glided over the nuances in the doctrine, including its de facto defunct status, in some precolonial Muslim states, including the much-abhorred Sokoto caliphate. Even beyond the confines of Sokoto, Muslim jurists disagreed over whether it applied beyond early and medieval Islamic polities and whether it was generally applicable to all Muslims. For example, a strand of Maliki jurisprudence, the dominant school of thought in large swaths of Africa, argued that the capital penalty was only applicable where the convert had been a “good Muslim.”Footnote 51 Who a “good Muslim” was, was hardly settled. Eventually, the capital penalty for ridda fell into desuetude, long before colonial rule.Footnote 52 And even though the colonial state codified a version of Maliki jurisprudence, meaning that ridda was technically on the books,Footnote 53 no criminal penalty for ridda was ever applied. Nevertheless, colonial administrators invoked Islamic law and societal aversion to conversion as the basis for public order regulations prohibiting proselytization by missionaries.Footnote 54 By construing public order with reference to Islamic law and Muslim attitudes, administrators deployed an ostensibly neutral value to privilege the religious majority to the detriment of Christian missions.Footnote 55
Castigating the constraints on proselytization as “the Great Prohibition,” missionaries insisted that empire’s religion-state design infringed on their primary obligation to spread Christianity to the “non-Christian world.”Footnote 56 Missionaries were, however, convinced that they were in a struggle not only with a constitutional idea organizing the empire. They understood the constitutional arrangement espousing the empire’s separation from Christian missions to be rooted in the unchristian lives of colonial administrators. Missionaries, for example, commonly criticized administrators for being “utterly ungodly, all living loose lives, all having women brought to them wherever they are.”Footnote 57 Consequently, missionaries did not seek a principled separation of the state from religion. Although they campaigned for the state to dissociate itself from caliphal institutions as a way to facilitate proselytization and conversion, this was not a call for separation. What missions sought, instead, was for the state to ally itself with missions—as it had done at the inception of imperial rule—or, in the alternative, for the state to govern the territory through so-called moderate Muslims who would be more amenable to proselytization efforts, and perhaps, open to conversion.Footnote 58 Far from acceding to imperial secularism or even calling for the principled separation of the state from all religions, missions championed a notion of religious liberty that would protect the evangelical enterprise.
To be sure, religious liberty was not absent from the legal framework of the colonial state. The Queen’s 1858 declaration in the aftermath of the Indian mutiny had proclaimed religious liberty for colonial populations. In addition, the legal instrument that had ushered in formal colonialism on the African continent in general, the Berlin General Act of 1885, mandated European powers to protect “freedom of conscience” and guarantee “religious toleration” to all “natives, subjects and foreigners” in their respective colonial territories.Footnote 59 To the extent, however, that colonial administrators construed these legal pronouncements as primarily intended for the benefit of indigenous populations, they served only to bolster the empire’s insistence on separation from missions. Consequently, the ecumenical notion of religious liberty stood at odds with that espoused by the state. For the state, religious liberty required that Muslims be shielded from missionary proselytization in pursuit of the goal of preserving native institutions—which were indispensable tools for the colonial project. Since proselytization hindered that goal, it had to be curtailed. To missionaries, however, proselytization was the right of both the proselytizer and the target audience; religious liberty protected not only the right of the proselytizer to proselytize, it also conferred on the target of the proselytization the right to receive the message.Footnote 60
As the inaugural gathering of world ecumenists invested in the missionary enterprise, Edinburgh 1910, therefore, provided a golden opportunity to begin the task of envisioning a religion-state design that would withstand the challenge of imperial secularism and its alliance with Islam. It was, however, the ecumenical efforts of the interwar to early postwar period that was the climax of this effort to develop a Protestant notion of religious freedom.Footnote 61 In those years, the ecumenical movement both finalized its blueprint for religious freedom and championed international legal and constitution-making processes to actualize its vision.Footnote 62
Contesting Secularism and Islamic Orthodoxy: The Global Ecumenical Movement and the Making of Article 18 of the Universal Declaration
Edinburgh marked the inception of the ecumenical critique of unchristian separation—an imperial policy and colonial sensibility that had its roots in the intellectual idea of secularism. Nevertheless, the description of the abhorred state design as secular was more typically associated with colonial administrators in the Edinburgh years. Only sparingly did Edinburgh ecumenists deploy the term secular; the ecclesiastical brethren devoted much of their energies to describing the crux of the constitutional problem—unchristian separations—rather than naming it.Footnote 63 It was in the interwar years, those between the end of the first and second World Wars, that the ecumenical movement put a name to the old problem: secularism. Footnote 64
As first described by the 1928 gathering of the International Missionary Council Conference in Jerusalem, secularism was not the absence of religion, it was a comprehensive belief, a “system of life and thought.”Footnote 65 Secularism amounted to paganism, and both, ecumenists argued, were in “defiance of God’s sovereignty.”Footnote 66 By asserting “human self-sufficiency,” secularism culminated in moral, political, and economic systems based on the “deification” of the “world” as well as the “self.”Footnote 67 Unchristian separations were, consequently, not the cause of secularism; they were a symptom. Ecumenists further argued that secularism was a malady afflicting the entire world and threatening Christianity everywhere.Footnote 68 The challenge to the missionary enterprise abroad by supposedly Christian empires was already a reflection of this threat. The problem was, therefore, not merely the violent repression of the church by Soviet communism and German national socialism; even in those Western European states that did not feature this intense hostility, ecumenists were concerned with the increased disempowerment of churches and the decreased salience of Christianity in the lives of European populations.Footnote 69 In “The Christianizing and Unchristianizing of the World,” a 1929 lecture to the Dutch Missionary Conference, Oldham declared that “the demonic attempt to put the world or the self in the place of God … has stricken at the heart of Europe.”Footnote 70 It was the marginalization of Christianity, ecumenists were convinced, that produced the imperial policy that alienated Christian missions abroad. Capturing this ecumenical alarm at the dechristianization of the world, William Temple, rector at St. Paul’s Piccadilly and future archbishop of Canterbury declared: “the world has gone pagan.”Footnote 71 The question on the mind of ecumenists then was: “what is a Christian to do?”Footnote 72
By the late interwar period, the ecumenical movement went beyond this initial concern; it began to regard the struggle with secularism as a threat to the “very existence of the church.”Footnote 73 Articulating this crisis in Faeno, Denmark, in August 1934, the Universal Christian Council’s Life and Work Movement set out the broad outlines of a conference to deliberate on the church-state question and respond to the challenges posed by the new paganism.
Reflecting this recognition of secularism’s connections with false religion, the theme of the 1937 Oxford Conference of the Life and Work Movement was “the life-and-death struggle between Christian faith and the secular and pagan tendencies of our time.”Footnote 74 The Oxford Conference regarded as the most significant event in twentieth-century ecumenism, called on the church to dismantle constraints on Christianity in Europe and abroad with the idea of “freedom of religion.” In the “Report of the Section on the Universal Church and the World of Nations,” the Oxford Conference affirmed the centrality of “freedom of religion” in a “better international order.” According to the report, church advocacy was in pursuit of “freedom of conscience” of both Christians and non-Christians. The report asserted: “we do not ask for any privilege to be granted to Christians that is denied to others. While the liberty with which Christ has set us free can neither be given nor destroyed by any government, Christians, because of that inner freedom are both jealous for its outward expression and solicitous that all men should have freedom in religious life.” The conference was careful to condemn socioeconomic privileges granted to European Christians in some imperial territories; it affirmed: “[W]e deprecate any attempt by Christians to secure under the shelter of the power or prestige of their nations any privileges in other countries in such matters as civil status, the holding of property, or language of education.”Footnote 75 Yet, this caution was not a call for the disestablishment of the church, a point that the conference made clear in the “Report of the Section on Church and State.”
Issued by the conference section chaired by Max Huber, the renowned Swiss churchman and judge of the Permanent Court of International Justice, the “Report of the Section on Church and State,” is particularly significant for the insight it provides into the ecumenical movement’s thought on church-state relations. As a structural matter, the Oxford Conference of 1937, like the Edinburgh Conference of 1910 insisted that the biblical analogy of Caesar-God separation did not support the church-state separation evinced by secularist tendencies. As the report put it, “it is God who declares what is Caesar’s.”Footnote 76 This inclination toward establishment was, however, conditional. The report suggested that the ultimate relationship between church and state ought to be determined by the nature of the state. Where the state fails to live up to its God-given duty of “upholding law and order,” “ministering to the life of the people united within it”Footnote 77 and becomes an “instrument of evil,”Footnote 78 the church ought to take on a position of “criticism or opposition” since the church is “not the lord” but rather a mere “servant of justice.”Footnote 79 Not only was ecumenical approval of establishment contingent on the nature of the state, it also hinged on a particular religion: the Christian church.Footnote 80
The 1937 Oxford Conference ecumenists were gravely concerned with the effect of secularization on state and society. Secularization, Oxford Conference delegates concluded, had “robbed” the state of its “religious glamor,” leading to absolutist tendencies and hostility toward the church by the state. As noted in the “Additional Report of the Section on Church and State,” this hostility manifested not only in the visible repression of the church resembling “pre-Constantine conditions”Footnote 81 but also in the less obvious phenomenon of favoring the church not as an intrinsic good but for the benefits it could offer the state.Footnote 82 Within “society,” conference delegates pointed out, secularization had given rise to materialism.Footnote 83 Although secularism had dechristianized state and society, the conference delegates were careful to emphasize that its claim to be devoid of religion was increasingly tenuous. To fill the spiritual vacuum left by Christianity, both the secularized state and secularized humanity had, in fact, turned to “new forms of faith,” made “new idols” and rediscovered “old religion.”Footnote 84 This old religion, according to the conference, was the quintessential sin of human glorification. Therefore, ecumenists did not imagine that secularism of the state and secularization of society had eradicated religion; rather, they were convinced that false gods and secularism could, in fact, coexist. American-English poet T. S. Eliot’s 1940 work, The Idea of a Christian Society, encapsulates ecumenists’ equation of secular constitutional arrangements with false orthodoxy.Footnote 85 In the book, which emerged from Eliot’s lectures during and after the 1937 Oxford Conference, the ecumenist who jointly founded a “conservative think-tank” with Oldham equated a “neutral society” with a “pagan society.”Footnote 86 In the context of this broader ecumenical understanding of secularism as a comprehensive, albeit false belief, the Islamist and secular features of places like Colonial Northern Nigeria were not only compatible but in fact, complementary.
To counter this slide into paganism, Eliot and his ecumenical brethren at the Oxford Conference called for the making of a Christian society. Although Oxford ecumenists were enthralled by the benefits of establishment to the Christian church, the conference, nevertheless, recognized that establishment did not always correlate with the freedom of the church.Footnote 87 Ecumenists, therefore, cautioned that where establishment would deprive the church of certain freedoms, the church has a duty to free itself and retrieve the freedoms “even at the cost of disestablishment.” These freedoms of the church, which were crucial both in establishment and non-establishment regimes, included the freedom to determine its faith and creed; freedom of public and private worship, preaching and teaching, freedom from any imposition by the state, of religious ceremonies and forms of worship; and freedom of Christian service and missionary activity both at home and in foreign lands.Footnote 88 Not surprisingly, then, the 1937 Oxford Conference was preoccupied with the question of evangelization. As the “Additional Report of the Section on Church and State” stressed in its concluding lines: “The one thing that matters is that it [the church] should be free to proclaim the good news of Christ, without let or hindrance, in accordance with the commission given to the church by its Lord.”Footnote 89 When the International Missionary Conference reconvened the following year in Tambaram, India, it put the issue of proselytization at the center of its agenda, listing this among the “most essential” rights.Footnote 90
The Oxford Conference’s most far-reaching decision was its establishment of the World Council of Churches with the specific goal of working toward the making of an international legal provision on religious liberty. In turn, the World Council of Churches established the Commission of the Churches on International Affairs to achieve this goal. Specifically, the conception of rights to be advanced by the World Council of Churches was rooted in the idea of “Christian personalism”: that “the human being [is] a theological person in community with others and in partnership with God.”Footnote 91 Although universal, the personalist notion of humanity was therefore rooted in Christian theology and the firm missionary conviction that all men were potential Christians.Footnote 92 Although the Oxford Conference of 1937 had resolved that it was incumbent on the church to defend universal humanity regardless of nationality, race, or class, this universal mandate was to be molded by Christian personalism and the primacy of religious freedom as the foundation for all rights. As the World Council of Churches declared several years later at a 1949 Chichester meeting: “a peaceful and stable order can only be built upon foundations of righteousness, of right relations between man and God and between man and man. Only the recognition that man has ends and loyalties beyond the State will ensure true justice to the human person. Religious freedom is the condition and guardian of all true freedom.”Footnote 93
This notion that religious freedom was the foundation of human rights had been advanced by the famous report Six Pillars of Peace, issued in 1943 by the U.S.-based Federal Council of Churches’ Commission to Study the Bases of a Just and Durable Peace, chaired by John Foster Dulles. Dulles had himself been a platform speaker on international affairs at the Oxford Conference and was actively involved in the “Report of the Section on the Universal Church and the World of Nations.” Six Pillars of Peace not only called for an international bill of rights, but it also advocated for religious liberty as its “essential linchpin.”Footnote 94 The Federal Council of Churches and the American Protestants it represented were immersed in this project of internationalizing a personalist notion of rights and considered religious freedom to be its foundation.Footnote 95 Indeed, this missionary campaign for the centrality of religious freedom to postwar international order had begun to gain political traction even before the Federal Council of Churches’ Six Pillars of Peace. For instance, in his famous address to Congress in January 1941, U.S. president Franklin Roosevelt outlined religious liberty as part of the four basic freedoms.Footnote 96 Subsequently, when the Atlantic Charter concluded by Roosevelt and Winston Churchill later that year failed to explicitly reference the freedom of worship, Roosevelt came under such intense criticism from the Protestant coalition that he was prompted to submit to Congress: “it is unnecessary for me to point out that the declaration of principles includes of necessity the world need for freedom of religion and freedom of information. No society of the world organized under the announced principles could survive without these freedoms which are a part of the whole freedom for which we strive.”Footnote 97
It was therefore unsurprising that U.S. Protestants came to be at the forefront of harnessing international ecumenical thought on religious freedom into a concrete international legal provision. The Commission of the Churches on International Affairs’ inaugural director and architect of Article 18 was Otto Frederick Nolde, Dean of the Graduate School at the Lutheran Theological Seminary in Philadelphia. Prior to his time at the Commission of the Churches on International Affairs, Nolde had served as spokesman of the Joint Committee on Religious Liberty jointly established by the Federal Council of Churches and the Foreign Missions Conference in North America in 1942. Like the Commission of the Churches on International Affairs, the Joint Committee on Religious Liberty had as its aim the crafting of an international legal provision on religious freedom.Footnote 98 Further, like the Commission of the Churches on International Affairs, the Joint Committee on Religious Liberty made the freedom to proselytize and convert a crucial element in this envisaged international legal provision.Footnote 99
A useful lens through which one might understand the Joint Committee on Religious Liberty’s postwar vision of religious liberty is its report, Religious Liberty: An Inquiry, published in 1945 and authored by Miner Searle Bates, Baptist missionary and professor of history at China’s Nanking University.Footnote 100 Disregarding the horrors of the Holocaust, Religious Liberty found the most extreme cases of denial of religious liberty in Soviet Russia, Franco’s Spain, and “Moslem Countries.” Indeed, the report considered the restrictions on religious freedom by Soviet Russia as not only the action of a totalitarian state but also as evidence of the “profound incompatibility” of religious liberty and the secularism espoused by communism.Footnote 101 While Russia, therefore, represented extreme hostility to religion, the report argued that Spain’s problem lay in the monopoly of the Roman Catholic Church and the resulting infringement of the religious liberty of people of other religions.
In the case of “Orthodox Islam,” the report found it to be “the contrary of religious liberty” that “finds no room for the concept as developed in Western lands.”Footnote 102 The report, which spans close to six hundred pages, identified the doctrine of ridda as the primary culprit for this absence of religious liberty. Although Bates and the Joint Committee on Religious Liberty were concerned with India’s restrictions on conversions from Hinduism to Christianity, they considered Islamic restrictions to be the most egregious violations of religious liberty. Bates stressed that Iraq, Palestine, Lebanon, and Northern Sudan were the only Near East countries with an established and recognized procedure regarding conversions from Islam and attributed the departure to influences external to Islam. Even in these cases of permitted conversions, converts were, in Bates’s account, subject to disabilities on matters concerning inheritance and employment among others. Even the classical status of ahl al-kitab (People of the Book) guaranteeing communal protection for Christians and Jews in Muslim territories did not escape critique. Bates argued that this legal status merely permitted these religions “to continue in quiescent communities, on sufferance as long as they do not challenge the dominant Islamic society.” The religious liberty agenda was targeted at addressing “the socio-religious-political pressures for uniformity in the Mohammedan societies.”Footnote 103
Religious Liberty adopted a remarkably generous tone in its assessment of the allied West. Beyond its identification of paganistic secularism and the consequent subjugation of religious liberty with the East, the report was careful not to implicate Western colonial powers in its critique of Islamic orthodoxy. In analyzing the case of Northern Nigeria, for instance, the report centered its critique solely on Islam. Minimally commenting on British indirect rule’s propensity to bolster precolonial religion in the territory, Religious Liberty praised Britain’s tradition of tolerance as a potentially positive influence on orthodox Islamic practices in Northern Nigeria. In Egypt, the report blamed Islamic orthodoxy’s co-option of constitutional text and politics and in Turkey, the culprit was the meeting of the faith with nationalism and authoritarianism.Footnote 104 Indeed, condemnation of colonial powers’ culpability in the restrictions on religious liberty was limited to Roman Catholic European Powers particularly in Mussolini’s Africa.Footnote 105 The report was therefore emphatic in locating the problem of religious liberty outside of the West.Footnote 106
It is important to acknowledge the points of contact between Religious Liberty and general ecumenical thought. Like the Oxford report and the thought espoused at Edinburgh 1910, Religious Liberty was not averse to the establishment of Christianity and did not regard it as a threat to religious freedom. Indeed, Religious Liberty was effusive in its praise for the British tradition of establishment of the Church of England, arguing that it featured a “high degree of religious liberty” and “a tradition of social tolerance.”Footnote 107 Although the report acknowledged that the British constitutional arrangement tied key political appointments to members of the Church of England and granted Parliament authority over forms of worship,Footnote 108 it regarded these features as insignificant.Footnote 109
Religious Liberty’s sanction of the intermingling of church and state was also apparent in its analysis of U.S. constitutional practice. Besides England, the United States was the other beacon of religious liberty highlighted in Bates’s report. Importantly, the report did not consider U.S. religious liberty to be the necessary product of church-state separation. As Bates pointed out, the First Amendment to the U.S. Constitution was not intended to prescribe church-state separation but was rather designed to prevent the federal government’s interference with the church-state entanglements that existed during the making of the First Amendment. U.S. national policy on religion, according to Bates, was “separation of state from Church, but not from Christianity.”Footnote 110 Citing Christian prayers at government events, Sunday’s work-free status, holidays with Christian roots, and blasphemy laws based on Christian ideas, Bates pointed out that these features of the U.S. religion-state arrangement amounted to “informal support of Christianity”Footnote 111 and protected the “Christian standards of the majority.”Footnote 112 Nevertheless, Bates stressed that these manifestations of the entanglement of the church with state did not amount to restrictions on religious liberty pointing to the “popular American view that entire religious liberty had been secured” and the approval, “even … envy,” of European scholars for American religious liberty.Footnote 113
Although Bates conceded that church-state separation might sometimes correlate to a higher degree of religious liberty than church-state union, he insisted that the evidence was not conclusive. Church-state separation, Bates argued, may be a mere manifestation of secularization, rather than the “triumph of free religion” that is the true goal of religious liberty.Footnote 114 Secularization was, in Bates’ formulation, the separation of religion from community life and not compatible with religious freedom. Rather, Religious Liberty advocated for “friendly separations,” which Bates described as church-state arrangements permitting “little or much voluntary cooperation between Church and State as the citizens may desire and agree upon.”Footnote 115
These “friendly separations,” which Bates found to be based on a fundamentally Christian idea, charted the middle course between the extremes of “state-implemented religion” and “individualistic religion”Footnote 116 and would permit the triumph of the free religion advocated by the report. Marking the uniqueness of Protestant thought on religious liberty, Bates argued that the mainline Protestant position is the most favorable to religious liberty, taking great care to compare it to the Islamic position (which he dismissed) and the Roman Catholic approach (which he argued, is marked by the exaltation of the liberty of the church rather than that of the individual).Footnote 117 Hence, Religious Liberty’s approval for establishment was not absolute, as it condemned both the Muslim and Spanish arrangements. Neither did Religious Liberty imagine that the secularization of state and society held the answer since secularization was named as a key culprit in the infringement of religious liberty.
Ultimately, the report emulated that of the 1937 Oxford Conference by recommending the adoption of an “International Bill of Rights” or “International Charter of Liberties”Footnote 118 to tackle constraints on religious liberty. As with Oxford, prominent among the provisions in this bill were to be rights to worship, convert, preach, and teach. Nevertheless, the Joint Committee on Religious Liberty’s report indulgently chided the “unrealistic efforts” in ecumenical circles to center the advocacy for these rights on the movement’s Christian personalist notions. Consequently, while the report advanced the proposals of ecumenical groups,Footnote 119 it, at the same time, put forth the proposal designed by the American Law Institute’s Committee of Advisors on Human Rights. The committee, which drew representatives from the United States, Britain, Canada, China, France, Germany, Italy, Poland, Soviet Russia, Syria, and countries in South America, had been commissioned by the Council of the American Law Institute. Unlike the ecumenical proposals cited in Religious Liberty and forming the crux of its rights charter plan, the proposal of the American Law Institute’s committee did not provide for the right to convert or proselytize.Footnote 120 Although both the Joint Committee on Religious Liberty and the Federal Council of Churches, along with their global ecumenical colleagues, continued to insist on these core rights, the inclusion of the committee’s proposal was reflective of the outlook of the American ecumenists. The American Protestant elites, particularly Dulles and Nolde, were in fact, criticized by global ecumenical counterparts, including the Swiss jurist Max Huber, as attempting to “translate” the Protestant project of “personhood” into “a legal idiom with broad appeal to people of goodwill whether or not Christian.”Footnote 121
Like other elites of the Joint Committee on Religious Liberty, Nolde regarded Religious Liberty as a key achievement. Reviewing the report in the Annals of the American Academy of Political Science, Nolde stressed that its significance lay in its contribution to the “urgent” global imperative of securing human rights.Footnote 122 The spokesman for the Joint Committee on Religious Liberty then commended the report to those striving to actualize that goal. Three years later, Nolde became the inaugural director of the World Council of Churches’ Commission of the Churches on International Affairs. In that capacity, Nolde not only had the opportunity to actualize the vision of the Joint Committee on Religious Liberty, but he was also integral to the formulation of the international charter that Religious Liberty proposed.Footnote 123 Acknowledging Nolde’s work in the crafting of the Universal Declaration of Human Rights, former first lady Eleanor Roosevelt, chair of the U.N. Commission on Human Rights, pointed out that Nolde was the most active nongovernmental organization delegate to the negotiations and drafting proceedings of the instrument.Footnote 124 The ecumenical movement’s participation was not limited to the nongovernmental organization delegation. Charles Malik, prominent Lebanese member of the Commission of the Churches on International Affairs, was rapporteur of the U.N. Commission on Human Rights and Dulles was actively involved in the San Francisco drafting and negotiation proceedings that produced Article 18.Footnote 125 Nevertheless, Nolde is credited with actualizing the ecumenical movement’s goal. In Malik’s words, Article 18, the Universal Declaration’s provision on religious liberty was “principally his [Nolde’s] fashioning.”Footnote 126 For the ecumenical brethren, Article 18 was the core of the rights provisions in the Universal Declaration since they had always held fast to the view that religious liberty was the foundation of all rights.Footnote 127 As Malik admitted: “though I cared for every word in the Declaration, I felt that, if we should lose on this Article on freedom of conscience and religion … my interest in the remainder of the Declaration would considerably flag… . [W]ithout the full and unimpaired right to think and believe freely, the value of these other rights pales into relative insignificance.”Footnote 128
In its final form, Article 18 captured the thrust of ecumenical concerns: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”Footnote 129 Article 18’s protection of conversion, and implicitly, the right to proselytize, were crafted to address the challenges Islamic orthodoxy posed to missionary activity in places such as Muslim Africa. By affirming the right of the proselytizer to evangelize as well as the right of the target to accept the message, Article 18 aimed to override the Islamic doctrine of ridda and dismantle legal and administrative constraints on missionaries seeking to spread the gospel.
Of the infamous trio identified at the 1910 Edinburgh Conference—Sudan, Northern Nigeria, and Egypt—only Egypt was present at the Article 18 drafting proceedings since much of Muslim Africa had not attained independent statehood at the time. Together with Saudi Arabia, Egypt mounted a critique on Article 18’s provisions on conversion and proselytizing.Footnote 130 The states challenged Article 18 as the product of an empire-missionary alliance intended to further the European missionizing project and cited instances in which missionary activity had stirred unrest and religious conflict which had paved the way for imperial expansion.Footnote 131 Jamil Baroody, Saudi Arabia’s representative, pointed out that “throughout history, missionaries had often abused their rights by becoming the forerunners of political intervention, and there were many instances where peoples had been drawn into murderous conflict by the missionaries’ efforts to convert them.”Footnote 132 Yet, Muslim opinion was by no means unanimous. Unlike Saudi Arabia and Egypt, Pakistan supported the freedom of conversion provision, arguing that freedom of religion is intrinsic to Islamic law. Ridda, Pakistan argued, was a “spiritual offence” and therefore not the subject of worldly penalties. In the words of Zafrullah Khan, the Pakistani delegate, “however condemnable [apostasy] is a spiritual offense and entails no temporal penalty. This is the essence of the freedom to change one’s religion. The Quran is explicit on it.”Footnote 133
Article 18 survived these challenges and made it into the Universal Declaration of Human Rights. The critique from some ecumenical quarters led by Max Huber that the international human rights project led by the Joint Committee on Religious Liberty had blunted some of the Christian personalist elements for the sake of broad appeal remained. Yet, the adoption of Article 18 was widely acclaimed as a triumph. The success of the religious liberty campaign was, without doubt, a highpoint of twentieth-century ecumenism. In two years, Article 18 found its way into the European Convention on Human Rights.Footnote 134 The Commission of the Churches on International Affairs then embarked on a successful campaign to domesticate the international legal provision into national constitutions, devoting particular attention to Muslim lands.Footnote 135 Wielding Article 18, mission-minded ecumenists dismantled barriers to accessing the mission field. As they did so, they congratulated themselves on their feat: no longer would secularism, especially that expressed as unchristian separation, curb missionary proselytization while advancing false faiths.
A Nation “Divided by God”Footnote 136
Although the globalization of Article 18 did not manifest directly in U.S. law as it did elsewhere, neither did the ecumenical project depart the United States with the ecumenists following the Article 18 negotiations in San Francisco. In fact, clear, if sometimes delicate, links connect current U.S. debates and the earlier twentieth-century global ecumenical story. Most immediately, the rift within the global ecumenical movement between elites of the Joint Committee on Religious Liberty, Frederick O. Nolde and John Foster Dulles, and ecumenists like Max Huber, came to manifest as a crack within U.S. Protestantism. That intra-Protestant divide came to shape the course of U.S. struggles over religion-state relations. Manifested in the United States as a debate over the proper attitude of Protestants to the exclusion of Protestant exercises in schools, the rift was, at its core, a reenactment of the Dulles-Huber disagreement over whether the Protestant project ought to be translated in broad, general terms. In the United States, the disagreement did not lead to the triumph of the Dulles-Noldeian position as occurred on the international plane. Rather, the split culminated in the exodus of Evangelicals evincing Huber’s view, and following that, the alliance of these Evangelicals with Catholics in the 1970s. These U.S. “religious antiliberals”Footnote 137 (as the Evangelical-Catholic coalition come to be known) inherited the legal arguments of their ecumenical forbears—the critique of secularism as an unchristian separation and the neutralization of the unchristian separation through a Christian preferentialist notion of religious liberty. At the same time, however, in opposing the mainline Protestant position, these religious antiliberals paradoxically branded their international ecumenical forbears who invented the arguments as opponents. U.S. constitutional discourse therefore came to feature both striking continuities and marked reversals from the earlier ecumenical debate.
Debating Translation: An Afterlife of Article 18
As I have shown above, the triumph of the American-led effort to enshrine an international notion of religious liberty was overshadowed by accusations that it had been at the cost of de-Christianizing the global ecumenical vision. Dulles, Nolde, and other elites of the Joint Committee on Religious Liberty were not the only ecumenists subject to this critique. The disagreement was laid bare when the incipient World Council of Churches convened at the Beau Séjour hotel in Geneva in 1939 to deliberate on stopping the imminent war. The discussion featured not only laypersons like Dulles and Huber, but also theologians such as Emil Brunner. Building on Brunner’s idea of “minimum morality” for all peoples, Christians and non-Christians, Dulles made a case for state protection of “the dignity and worth of individual persons.”Footnote 138 Although Dulles was clear that the ultimate aim of such a project was to indirectly infuse Christian ideals into public life and international affairs in furtherance of the ecumenical cause, this plan went beyond the missionary “religious liberty” campaign. Dulles’s proposal received the support of the majority of the Beau Séjour ecumenists, and the gathering agreed on the value of espousing “rights” principles as a “moral” rather than a “faith” matter. The ecumenists proclaimed in the resulting report: “While it is our Christian faith which urges us to adhere to these principles, they are of such a character that many who do not profess the Christian faith but are equally bewildered by the openly proclaimed moral anarchy, will respond with cordial assent.”Footnote 139
One scholar argues that “the political inscription of theological personhood blunted the anti-secular polemic that produced the concept of personhood in the first place.”Footnote 140 This was precisely the impression of Max Huber. Arriving days late into the conference, Huber was consternated by the direction of the proceedings. The duty of the church, Huber argued, was not to “win assent” from non-Christians. Its obligation is “to say to the world a specifically Christian word.”Footnote 141 Huber pointed out that the ecumenists had instead issued a report of which “[t]wo-thirds … could have been said as well by any well-intentioned non-Christian people” and concluded that the report was to that extent, “a secular message.”Footnote 142 These criticisms hounded Dulles’s work, including his Commission on a Just and Durable Peace. Swedish ecumenist Nils Ehrenström, for instance, argued that the Dulles Commission privileged the creation of political institutions over the primary Christian goal of spreading the gospel.Footnote 143 To these Huberian ecumenists, this critique extended beyond Dulles’s work, tainting the entirety of the American Protestant-driven Article 18 effort.
The critique that Dulles’s and Nolde’s work “translated” Christian ideas into a “legal idiom with broad appeal among people of goodwill” lives on in the U.S. Evangelical and fundamentalist disagreement with liberalized Protestantism.Footnote 144 Starting with the McCollum, Engel, and Abington decisions, a rift opened within U.S. Protestantism, with Evangelicals and Fundamentalists beginning to dissent from the mainline Protestant position. These dissenters argued that in endorsing the exclusion of devotional exercises, mainline Protestants had promoted “the evacuation of religion from public discourse.” Their erstwhile brethren had joined “the fight for separation of religion from government” on the wrong side with the consequence of “giving up their claim to provide unique moral truths … [and granting] secular liberal ideas primacy over religion.”Footnote 145 By doing so, Evangelicals argued, mainline Protestants had joined forces with secularism.
The Supreme Court’s McCollum v. Board of Education Footnote 146 decision, handed down on March 8, 1948, while Article 18 deliberations unfolded in San Francisco, opened this intra-Protestant divide. The Court’s invalidation of a school religious program set off a division among U.S. Protestants most evidently within the ranks of Protestants and Other Americans United for the Separation of Church and State. The organization was founded in the wake of the 1947 Everson decisionFootnote 147 to advance the separation of church and state. Nevertheless, the organization did not support separation unequivocally, as its mission suggested; it sought to protect the wall of separation from being breached by a specific religion—Catholicism. While Protestants United cheered on the famous Everson pronouncement of a “wall of separation between Church and State,” it was alarmed by the Court’s declaration that state funding (of transportation costs) for parochial schools—at the time overwhelmingly Catholic—was constitutional. In a scathing editorial critique of the decision, the Christian Century, a mainline Protestant publication, argued that the Court’s decision was another sign of the incremental “encroachments by the Roman Church” on the wall of separation.Footnote 148 The “ultimate purpose” of those encroachments, argued Clayton Morrison, author of the editorial and vice president of Protestants United, was the elimination of “the wall of separation.”Footnote 149 In another publication, Morrison argued that Everson was an “unAmerican development,” pointing out that although the Roman Catholic intrusion into the state was initially “obscured by a sentimental and humanitarian appeal” to the interests of children, the stealth process of encroachment would ultimately destroy the wall of separation.Footnote 150 Protestants United, therefore, sought to protect the wall from the threat of Catholic intrusion as laid out by founding member Paul Blanshard in his controversial 1949 book, American Freedom and Catholic Power.
McCollum challenged Protestants United’s apparent commitment to separation. Invoking the wall of separation and the no-aid rationale laid down in Everson, the Court held that school released time for religious instruction, a program popular among Protestants, was unconstitutional.Footnote 151 Ernest Johnson, a prominent member of the Federal Council of Churches and an educator, described the irony wrought by the McCollum decision: “Up to now we have thought of the separation of church and state as virtually synonymous with religious liberty, a principle with which we consider ourselves closely identified historically. It has been something of a Protestant slogan. Now we find it used to challenge one of our most distinctive enterprises. We have regarded the separation of church and state almost as an aspect of Protestant strategy. There is a striking irony in the turning of the tables.”Footnote 152 Drawing attention to the divide between the notion of separation espoused by McCollum and that advanced by Protestants, Johnson declared: “Whereas our main concern from the beginning has been to defend religion against the state, their main concern is to defend the state against religion.” Johnson declared that McCollum “gored” the “ox” of Protestants by espousing the latter view of separation.Footnote 153
The rift between mainline Protestants and Evangelicals following McCollum bore an uncanny resemblance to the Dulles-Huber divide within global ecumenical discourse. The mainline Protestant reaction to McCollum was unmistakably similar to the Dulles-Nolde position in international ecumenical discourse. To be sure, the support that the McCollum decision found among the upper echelons of the Protestants United leadership was not always coherent or cohesive. A minority was dogged in defending McCollum from the Evangelical charge that the McCollum decision furthered “atheism.”Footnote 154 However, other mainline leaders admitted that Protestants United’s agenda was at odds with the McCollum advancement of secularism and elimination of religion from schools. Morrison, for instance, argued that secularism bred “a religion of its own, whose gods are idols in the form of nationalism, democracy, science, humanism.”Footnote 155 Despite this acknowledgment of the danger of the secularism espoused by McCollum, these mainline Protestants argued that the protection of Protestant liberty from Catholic excesses had to be made on principled grounds. Such a principled opposition called for translating the protestant agenda into broad general terms of state-religion separation, allying with secularists, and putting up with a decision like McCollum. This stance of mainline Protestants in the U.S. debates was an unmistakable reenactment of the Dulles-Nolde position in the global ecumenical context.
Evangelicals dissented from the mainline Protestant position to become the staunchest critics of McCollum—alongside Catholics. But Evangelicals were hardly the sole Protestant dissenters; notably, the Lutheran theologian Reinhold Niebuhr joined Evangelicals in mounting a critique of the support McCollum found in the leadership of Protestants United and the mainline Protestant movement. In words reminiscent of his fiery address at Oxford in 1937, Niebuhr charged that the Court’s “misleading metaphor of separation” would “accelerate the trend toward secularization.”Footnote 156 Although Niebuhr’s global ecumenical presence did not extend to religious liberty efforts as Huber’s had, the former joined Evangelicals in mounting a similar critique on mainline Protestant support for McCollum. Evangelical dissenters and Niebuhr blamed what Ernest Johnson described as “the unnatural alliance between churchmen and extreme secularists” for the decision.Footnote 157 Therefore, to assent to McCollum was, in the opinion of this group, to give in to secularism. Not even the mission to curtail Catholic influence was worth such a cost.Footnote 158
The rift only widened in the years following McCollum. In 1962, the Supreme Court held in Engel v. Vitale Footnote 159 that school prayers violated the Establishment Clause, delivering a loss to Evangelicals. To the Evangelical movement, Engel, which was reaffirmed the following year in Abington v. Schempp,Footnote 160 was about far more than school devotional exercises; it was about the role of religion in public life. Specifically, Evangelicals regarded the Engel and Schempp decisions as the expression of a secular humanistic idea that sought to relegate religion to the private sphere.
Most Protestant groups, including Baptists and Presbyterians and organizations such as Protestants United for the Separation of Church and State and the National Council of Churches, endorsed Engel and Schempp. Footnote 161 Christianity Today, a conservative periodical, argued that the Court’s decision in Engel was “compatible both with a proper Christian attitude toward government stipulation of religious exercises, and with a sound philosophical view of freedom.”Footnote 162 Moreover, thirty-one Protestant leaders, including Methodist bishops, the president of the Southern Baptist Convention, and a former president of the National Council of Churches signed a statement lauding the decision for protecting “the integrity of the religious conscience and the proper function of religious and governmental institutions.”Footnote 163 Amid this torrent of Protestant support for a decision that already had the backing of prominent Jewish groups, the dissenting groups held out. While Niebuhr had reversed his view to now support the mainline position,Footnote 164 fundamentalist Protestants and Evangelicals were steadfast in their opposition.Footnote 165 The National Association of Evangelicals not only refused to sign on to the broad support that greeted Engel and Schempp, it also stringently criticized the decisions as a manifestation of the decreasing significance of religion in public life. Secular humanism, Evangelicals argued, was taking over state and society.Footnote 166
Three landmark decisions cemented the Evangelical exodus from the mainline Protestant position and inspired its alliance with Catholics. The first was the Supreme Court’s desegregation decision in Brown v. Board of Education in 1954, which was followed by the rise of Christian academies. If the Engel and Schempp de-Protestantization of schools was what Evangelicals opposed, the funding of Christian, white academies, which had first exploded following the Brown decision, was what they began to seek. Encapsulating this nexus between the race question and the contestation over religion in the domain of schools, Congressman George Andrews, representing Alabama, fumed in reaction to Engel: “They put the Negroes in the schools and now they’re driving God out.”Footnote 167 In securing public funding for these emerging Christian educational institutions and eschewing what they regarded as secularism, Evangelicals found common ground with Catholics—a group that had long operated parochial schools and sought government funding.Footnote 168
The other two landmark decisions that triggered the Evangelical exodus from the mainline Protestant position and catalyzed its embrace of Catholics were the 1965 Griswold v. Connecticut Footnote 169 decision and the 1973 decision in Roe v. Wade. Footnote 170 Following Griswold’s liberalization of access to contraceptives, the Evangelical perception that religion was being banished from the public square only intensified.Footnote 171 Hostilities only peaked following Roe. Responding to Roe, the National Association of Evangelicals declared: “We deplore, in the strongest possible terms, the decision of the U.S. Supreme Court which has made it legal to terminate a pregnancy for no better reason than personal convenience or sociological considerations.”Footnote 172 Even Christianity Today, which had declared the mainline Protestant support for Engel and Schempp, ran an editorial pronouncing, “[t]his decision runs counter not merely to the moral teachings of Christianity through the ages but also to the moral sense of the American people.”Footnote 173
It was the genius of crafting opposition to abortion as a moral and a Christian, rather than a merely Protestant issue, that inspired the alliance between Evangelicals and Catholics.Footnote 174 To be sure, Catholics were publicly vocal about their abortion stance long before Evangelicals were. As the Reverend Jerry Falwell pointed out in 1979: “The Roman Catholic Church for many years has stood virtually alone against abortion. I think it’s an indictment against the rest of us that we’ve allowed them to stand alone.”Footnote 175 Nevertheless, Evangelicals took a stance once Roe was handed down, setting aside their ages-long animus against Catholics to ally against a new enemy: “secular humanism.” “To understand secular humanism,” Christian Harvest Times, a Christian magazine, declared in its July 1980 edition, “is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education … the separation of church and state, the loss of patriotism, and many of the other problems that are tearing America apart today.”Footnote 176
The new Christian coalition was clear that the problem was not merely secular humanism; it was the expression that secular humanism had found in the law. As Canadian-born Lutheran conservative (later turned Roman Catholic), Father Richard John Neuhaus, argued in his influential work, The Naked Public Square, the major challenge to religion lay in the secularist legal campaign to expunge religion from the public sphere. As Neuhaus set it out, the task was to “disrupt the business of secular America by an appeal to religiously based public values.”Footnote 177 What was striking about the U.S. discourse was that mainline Protestants came to be regarded as part of this “secular America.” Strikingly reminiscent of the Huberian critique of the mainline global ecumenical position, Evangelicals regarded the mainline Protestant alliance with secularists starting from the McCollum moment as unholy. Moreover, these critics understood the alliance as a move from Christianity to a belief in the false deity of secularism. To neutralize this secularist enemy, the Evangelical-Catholic coalition began to deploy claims of a Christian preferentialist notion of religious liberty. The unending tussle between Christian preferentialism and legal secularism thus began.
Today, Protestants United has unwittingly lived up to the Evangelical critique. Now known as Americans United, today’s Protestants United is a coalition of multireligious and nonreligious interests and champions a strict separationist agenda. However, contemporary “religious antiliberals”Footnote 178 are today’s vanguards of the Evangelical-Catholic project. While these are new renditions of the global debates pitting the Dulles-Nolde views against those of Huber, they are hardly unrecognizable.
Contesting Unchristian Separation
As was the case with early to mid-twentieth-century global ecumenists, the U.S. “religious antiliberals”Footnote 179 do not regard secularism as a neutral separation of the state and religion; instead, they consider secularism as the state’s separation from Christianity. These “values Evangelicals,”Footnote 180 as the U.S. actors are also known, do not imagine the secularist enemy to be devoid of values. Secularism, in the religious antiliberal discourse, is unchristian—a false faith. Conservative scholar Steven Smith’s arresting work, Pagans and Christians in the City, sets out this idea in stark terms.Footnote 181 Drawing from T. S. Eliot’s prediction of a battle between Christianity and paganism,Footnote 182 Smith argues that the contemporary culture wars fulfill Eliot’s thesis. Smith, moreover, argues that the tussle is not new; it is reminiscent of the struggle between early Christians and pagans in the Roman Empire.
“The Idea of a Christian Society,” the T. S. Eliot work that inspired Smith, espoused the vision of the Christian state sought by global ecumenists. As I note above, the ecumenical campaign to make headway in the non-Christian world focused on overcoming religion-state separations that were unfriendly to Christianity. And as noted above, in its 1945 report, Religious Liberty, the Joint Committee on Religious Liberty declared the ultimate Christian goal as the constitutional structure of “friendly separations.”Footnote 183 Finding the foremost examples of such friendly separations in the United Kingdom’s affinity with the Church of England and the special status of Christianity in the United States, the report argued that such arrangements are based on voluntary cooperation between the church and state. The Bates-authored report concluded that only such an arrangement would permit the triumph of “free religion.”Footnote 184 Only one form of Christian establishment worried ecumenists: the Spanish fascist variety that threatened the freedom of the church. Ecumenists therefore favored the entanglement of church and state.
This ecumenical attitude reflected ecumenical advocacy in colonial territories, as well. Peter Van der Veer’s work on India shows that the missionary campaign for the empire’s separation from indigenous religions was not a manifestation of a commitment to separation. Instead, it was the last resort of activists who preferred an alliance with the state but were willing to settle for the state’s separation from its rival if that was the only option available.Footnote 185 In Muslim West Africa, the origins of colonial rule lay in empire-missionary ties.Footnote 186 As Thomas Foxwell Buxton—evangelical and the brains behind the African Colonization expedition—envisioned, Christianity was to drive both the civilizing and economic aspirations of the empire. The preference for Christianized states and a Christianized world, in sum, motivated ecumenists.
Regardless of the wall of separation metaphor that has come to be associated with the Establishment Clause in the United States, scholars argue that the clause was not originally intended to separate the state from religion.Footnote 187 Not only did several states have established churches at the adoption of the First Amendment, but many also promoted Protestantism through various devices. Of the fourteen states in existence at the making of the Establishment Clause, seven maintained and sponsored a state church, and several others advanced denominations of Protestantism in various ways. Even the much-touted beacon of religious liberty, Rhode Island, excluded Catholics and Jews, as such, from citizenship.Footnote 188 As Jeffries and Ryan point out, a “Protestant establishment … dominated public life,” even if that establishment was “unselfconscious.”Footnote 189 Given this de facto Protestant establishment, Protestants generally saw no disconnect between Christian free exercise and the Establishment Clause.Footnote 190 Protestants vigorously deployed church-state separation arguments in furtherance of anti-Catholic animus in the decades preceding the Evangelical-Catholic alliance. In its stance on religion-state separation, the National Association of Evangelicals, for instance, favored “strict separation of church and state especially as the state might interrelate with Roman Catholic Church.”Footnote 191 The critique of unchristian secularist separation replaced the ostensibly unequivocal Evangelical commitment to separation. The shift, as I argue above, was driven by the common interest Evangelicals and Catholics found in the public funding of parochial schools following the rise of Christian academies in the aftermath of Brown, Engel, and Schempp and by intensified fears of a purge of Christian values from public life following Griswold and Roe.
Paradoxically, the decline in Evangelical support for church-state separation was justified by the idea of church-state separation itself. As Ernest Johnson argued in the aftermath of McCollum, church-state separation was a constitutional arrangement that could be secularist or Christian. Secularist separation sought to “defend the state against religion”Footnote 192 and was therefore unchristian. Another form of separation was praiseworthy: that which sought to protect religion against the state. This form of separation, reminiscent of the “friendly separations” championed by Bates on the global ecumenical scene, was what the Christian coalition advocated.
This critique of secularist separation and simultaneous embrace of “friendly separations” finds expression in the contemporary discourse of former attorney general Barr. Barr’s position advocates an interpretation of the establishment clause that dissolves the wall of separation when it benefits the church and invokes noninterference to erect the wall when expedient. Reflecting its favor for this project, the Supreme Court’s jurisprudence on government funding of parochial schools now regards the disqualification of religious schools from state funding as unconstitutional.Footnote 193 Free exercise, in essence, trumps separationist concerns in the arena of parochial schools’ funding. However, this has not translated into a blanket hostility to separation; like global ecumenists, contemporaries such as Barr have not hesitated to deploy separationist notions to advance the interests of the Christian coalition. A notable example has been in the doctrine of ministerial exemptions, where the coalition has successfully promoted the legal principle exempting internal governance questions of religious organizations from government interference. Our Lady of Guadalupe v. Morrissey-Berru,Footnote 194 involving a discrimination claim by two elementary school teachers against their Roman-Catholic employers, is a recent expression of the favor this campaign has found with the Supreme Court.Footnote 195 Writing for the majority, Justice Alito held that the First Amendment prohibits “intrusion” into “matters of church government,” and he concluded that deciding the question brought by the plaintiffs would “risk judicial entanglement in religious issues.”Footnote 196 This was despite the fact that the entanglement test had, since Lemon v. Kurtzman, been deployed in furtherance of the secularist separation abhorred by the Christian coalition.Footnote 197 Church-state separation was, in its Guadalupe rendition, on the side of the church. This deployment of separation for the ends of the church has been made possible by the emergence of a notion of religious liberty staunch in its faithfulness to the Christian project, a point I turn to below.
The Two Faces of Liberty
The global ecumenical religious liberty campaign was expressly premised on the argument that Christians were a religious minority in the colonies. As noted above, once ecumenists failed to secure an alliance with the state and turned to religious liberty to contest the state’s false faith, they began to invoke the political and religious minority status of Christians as a justification for special protections. This argument was put to good use in deliberations over Article 18. To take a case in point: when making a case for Nigeria’s domestication of Article 18, Sir Kenneth Grubb, chair of the Commission for the Churches on International Affairs, argued that the provision was a guarantee intended to protect Christians and indigenous non-Muslim groups—the target of much missionary proselytization—from the Muslim majority. Ecumenical justifications for the need for Article 18 not only sidelined the horror of the Holocaust,Footnote 198 but they also left out Muslim and non-Muslim minority groups facing severe persecution in the Muslim African territories with which ecumenists were concerned.Footnote 199 Grubb’s assertions also obscured the clout of missions and Christian converts in the colony. Although missions never returned to the dominion they enjoyed at the height of their nineteenth-century alliance with the empire; they continued to command varying degrees of influence within the colonial administration. This influence produced significant policy victories, especially in the years leading to decolonization—a period during which the postcolonial state’s constitution was designed with the active involvement of missions.Footnote 200
It is now common to hear declarations that the U.S. Christian coalition is a religious minority identity. Not merely an assertion, this identity has proved useful in securing legal victories. The legal strategy sprang from the recognition that Supreme Court jurisprudence on free exercise developed in the context of the protection of religious minorities. The star of that story was eminent conservative scholar Michael W. McConnell, and the case was Rosenberger v. Rectors and Visitors of the University of Virginia. Footnote 201 In Rosenberger, the University of Virginia denied a student application for monies intended to fund an Evangelical magazine Wide Awake. The source of the funding sought was the student activities fund, which was collected through mandatory student contributions. The university’s decision to deny the funding request was based on an Establishment Clause-inspired policy prohibiting funding religious purposes. Represented by Professor McConnell, the Plaintiff argued that the university’s decision infringed on the Establishment Clause because it amounted to viewpoint discrimination. This was a novel argument. As Noah Feldman tells the story, McConnell’s genius lay in instrumentalizing the sympathy that both the Supreme Court and groups who favored secularist separation tended to express in free exercise cases involving minorities.Footnote 202 This was, however, not a free exercise case, and that sympathy had to be transposed to the context of the Establishment Clause. On the way from the Free Exercise Clause to the Establishment Clause, McConnell branched off at free speech doctrine, extrapolating the prohibition on viewpoint discrimination in that context. The Court agreed with McConnell, holding that funding Wide Awake would not amount to an Establishment Clause violation; to deny the publication funding from a generally available student fund amounted to discriminating against the viewpoint espoused by the publication.Footnote 203
Legal arguments springing from the premise that the Christian coalition is a religious minority remain alive today, finding renewed expression on the Court. Dissenting in Obergefell, Justice Alito predicted that the decision would be used to “vilify Americans who are unwilling to assent to the new orthodoxy.”Footnote 204 Speaking at a Catholic Lawyer’s Association event two years later in March 2017, Justice Alito declared: “We are seeing this coming to pass. A wind is picking that is hostile to those with traditional moral beliefs.”Footnote 205 Barr was, therefore, not without precedent when he spoke in his 2019 Notre Dame speech of religious persecution. “Those who defy the creed” of secularism, Barr warned, “risk a figurative burning at the stake—social, educational, and professional ostracism and exclusion waged through lawsuits and savage social media.”Footnote 206 The Court appears to have agreed. In Masterpiece Cakeshop, the Court held that Colorado’s Civil Rights Commissioners’ disparaging remarks about the petitioner’s religious objections to same-sex weddings evinced a hostility that tainted the commission’s proceedings. The hostility, the Court concluded, amounted to religious viewpoint discrimination and infringed on the petitioner’s free exercise rights.Footnote 207
At the same time, however, the Court declined to uphold the same standard less than three weeks later in considering the constitutionality of the presidential proclamation banning travel to the United States from several Muslim majority states in Trump v. Hawaii. Footnote 208 Remarkably, the Christian coalition took no stance on the outcome of Hawaii. Although the Christian Legal Society and the National Association of Evangelicals filed an amicus brief arguing that the Establishment Clause prohibited intentional discrimination among religions, the brief was limited to the legal principle—which undoubtedly advanced the position of the Christian coalition.Footnote 209 Unlike a wide range of religious groups who filed briefs in opposition to the travel ban, several of whom also actively supported the legal separation of church and state, the Christian coalition refrained from taking a position on the outcome of the case.Footnote 210
In a dissent joined by Justice Ginsburg, Justice Sotomayor juxtaposed the Court’s Hawaii decision with its stance in Masterpiece Cakeshop, pointing out that both cases raised the question “whether a government actor exhibited tolerance and neutrality.” In Masterpiece, Sotomayor argued, the Court had considered officials’ hostile “statements about religion” to be “persuasive evidence of unconstitutional government action” amounting to a violation of the “neutrality” required by the Free Exercise Clause. However, in Hawaii, the majority “completely sets aside the president’s charged statements about Muslims as irrelevant.” This double standard, the dissent charged, “tells members of minority religions in our country ‘that they are outsiders, not full members of the political community.’”Footnote 211 The Sotomayor dissent, in sum, pointed out the Court’s Christian preferentialism. Far from new, this Christian preferentialist bent in the Court’s jurisprudence perpetuates the view, at least since Justice Brewer’s well-known 1892 declaration in Holy Trinity,Footnote 212 that the United States “is a Christian nation.”Footnote 213 Neither is U.S. Christian preferentialism a distinctly national phenomenon; regardless of the peculiarities of its U.S. manifestation, the global ecumenical religious liberty project lives on in the arguments for U.S. Christian preferentialism.
Conclusion
The global ecumenical struggle reached a climax with the triumph of Article 18 in 1948, but the afterlife of that project continues to reverberate. Indeed, the ecumenical arguments that brought forth Article 18 continue to serve as a resource for contemporary U.S. religious antiliberals contesting secularism. When Barr decried the “organized destruction” being unleashed on religion by “militant secularism” and charged coreligionists to “resist” “the war being waged on religion,”Footnote 214 he was echoing precedent in the intellectual tradition of his global ecumenical forbears. The United States is not alone. Across the Atlantic, Europe is witnessing similar confrontations even if those are not always animated by the anxieties that plague the United States. Concurring in the European Court of Human Rights’ Lautsi v. Italy decision endorsing the display of crucifixes in classrooms, for instance, Justice Bonello articulated the European counterpart of Barr’s campaign through a reference to the domesticated equivalent of Article 18 in the European Convention.Footnote 215 “Freedom of religion,” Bonello argued, “is not secularism. Freedom of religion is not the separation of Church and State … In Europe, secularism is optional, freedom of religion is not.”Footnote 216 The European struggles only resonate more deeply when one compares the Lautsi decision with the European Court’s deployment of secularism (“interdenominational neutrality”) to proscribe a Muslim public school teacher from wearing a headscarf in an earlier case.Footnote 217 This genealogical account recovers the longer global history of this contemporary manifestation of religious antiliberalism.
This genealogical account also unmasks the instability of the ideas of secularism and religious liberty. The campaign for a Christian-friendly religious liberty was not imagined to clash with a hollow religion-state separation constitutional structure; global ecumenists conceived of state separation from Christianity as a turn to false faiths. Secularism was therefore a competing religion, manifesting as Islam in British Muslim Africa and later, as communism and German national socialism in Europe. In the same way, U.S. religious antiliberals regard secularism as a false orthodoxy and respond by advancing a notion of religious liberty that centers the Christian experience. By unveiling the emergence of Christian preferentialism in specific response to an unfriendly secularism in both the early global ecumenical campaign and in the current U.S. project, I question the faithfulness of the commitment to religious liberty and of a principled aversion to secularism.
In the end, however, the crux of this narrative is not merely to highlight the disconnect between the idealized notions of secularism and religious liberty and the expression they find in particular struggles. Instead, it is to reveal the impossibility of understanding these ideas outside of the context of specific encounters. It is in these encounters that the political conditions that galvanize these ideas and the changing relations that inspire their transformations are unveiled. Only with that discovery, I conclude, can one hope to begin to grasp the complexity of law’s relationship with faith and power.
Acknowledgments
For invaluable comments, I thank Anna Su, Ann Shafer, David Kennedy, Duncan Kennedy, John Comaroff, Intisar Rabb, Noah Feldman, Robert Gordon, and Samuel Moyn. In addition, I thank my workshop cohort at the Global Scholars Academy convened by Harvard Law School Institute of Global Law and Policy and the Graduate Institute of International Studies in Geneva in January 2020. I am also grateful to Misthura Otubu, Elyse Hill, Ola Mobarak, and Cecil Yongo Abungu for excellent research assistance.
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