The Commission and Its Claims
There is a particular kind of audacity that arrives dressed in the language of protection. The recently published report of the United States Religious Liberty Commission offers a case study in this rhetorical manoeuvre, presenting what amounts to a theological argument for state endorsement of religion as though it were a defence of constitutional freedoms. The document frames the separation of church and state not as the foundational guarantee that allows every citizen, believer or otherwise, to live according to their own conscience, but as a form of hostility toward religion, a secularist assault on the faithful carried out through the machinery of neutral governance. If you share the commission’s theological premises, that framing may feel intuitively plausible. If you do not share them, and the commission offers you no particular reason why you should, then what the report actually describes is the conditions under which your own liberty becomes conditional on someone else’s theology.
The purpose of this essay is not to litigate the partisan politics surrounding the commission’s appointment or its membership, though those details are not without interest. The purpose is to examine the underlying argument being made, to trace its logical structure, to identify what it is actually asserting about the nature of rights and the proper role of the state, and then to test whether that argument can survive scrutiny. The short answer is that it cannot. The longer answer explains why, and why the failure matters not merely as a matter of constitutional law but as a question of political philosophy that touches the freedom of every person living in a pluralist society.
The commission’s central contention, stripped of its procedural framing, is that rights are gifts from a creator, that the American constitutional tradition was founded on this premise, and that any governmental posture which treats religion as a private matter rather than a publicly endorsed foundation of civic life is therefore an abrogation of the very rights it claims to protect. This is not a new argument. It is, in fact, an argument that the architects of American secularism were at pains to answer directly, and their answer remains more coherent and more protective of actual liberty than anything the commission has managed to produce in its report.
What the Separation Principle Actually Does
Before engaging with the commission’s inversion of the principle, it is worth being precise about what church-state separation is and what it is not. It is not atheism enacted through law. It is not a declaration that religion is false, or unimportant, or that the state views religious belief with suspicion. It is not a mechanism for driving religion from public life or for preventing believers from organising, speaking, lobbying, or voting according to their convictions. All of those things remain entirely available to the religious citizen under a regime of church-state separation, as they always have been.
What the principle does is rather more modest and rather more important. It prevents the state from lending its coercive authority, its tax revenues, its legislative power, and its symbolic endorsement to any particular religious tradition. It ensures that when a citizen stands before a court, applies for a licence, sends a child to a public school, or seeks the protection of the law, they do so as a citizen, not as a member of a favoured religious community. The state, under this principle, is not indifferent to ethics, or to the public good, or to the wellbeing of its citizens. It is indifferent only to the theological question of which, if any, supernatural account of those things is correct.
Thomas Jefferson, who coined the phrase that has defined this principle in American discourse, was characteristically precise about the logic. Writing to the Danbury Baptist Association in 1802, he said: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.” The point is not arcane. The legislative power of government reaches actions only, not opinions. The state is not competent to adjudicate theological questions, and it therefore declines to try. This is not hostility to religion; it is the condition of possibility for genuine religious freedom.
That last sentence deserves emphasis because it is the point the commission inverts. The separation of church and state is not the enemy of religious liberty; it is its structural precondition. The believer who worships without fear of state interference does so because the state has agreed to stay out of the theological question. The moment the state enters that question, picking a winner, endorsing a particular account of the divine, aligning its authority with one theological tradition, the freedom of every person who belongs to a different tradition, or to none at all, is placed in jeopardy. This is not a theoretical risk. It is the consistent lesson of every society in which ecclesiastical and civil authority have been unified, and the historical record on this point is both extensive and unambiguous.
The Theological Claim About Rights
The commission’s argument does not rest on constitutional interpretation alone. Its deeper foundation is a theological claim about the nature and origin of rights, and this is where the argument needs to be examined most carefully, because it is here that the intellectual sleight of hand is most consequential.
The claim, stated plainly, is that rights are not the product of human agreement, social contract, or political organisation, but are instead endowments from a creator. This is a familiar position, most memorably expressed in the Declaration of Independence’s assertion that all men are endowed by their creator with certain unalienable rights. The commission treats this phrase not as a rhetorical flourish common to eighteenth-century political writing but as a constitutional and philosophical first principle, one that commits the American state to grounding its understanding of rights in a theistic metaphysics.
Several serious problems attend this argument, and they compound each other in ways that the commission’s procedural language is designed to obscure. The first is historical, and the history runs directly counter to the commission’s account. The intellectual tradition from which the Declaration drew was considerably more heterodox than the commission’s narrative suggests. Jefferson himself was a deist who privately rejected the divinity of Christ, the reality of miracles, and much of orthodox Christian doctrine. When he invoked a creator, he was invoking the watchmaker god of Enlightenment deism, a distant first cause who had set the universe in motion and then declined further involvement, not the personal and interventionist deity of evangelical Christianity. The commission’s attempt to recruit the founding documents into an argument for state alignment with Christian theism requires it to suppress this rather important theological distinction between the founders’ actual beliefs and the doctrinal commitments the commission wishes to impute to them.
The second problem is philosophical. If rights derive from a creator, they derive from a particular theological account of what that creator is, what that creator wills, and how that creator’s intentions are to be interpreted. There is no theologically neutral version of this claim. Every version of it privileges some religious tradition’s account of the divine over others. The Christian version, the Jewish version, the Islamic version, the deist version, and the many variants within each of these traditions offer different accounts of what rights the creator endows and on what conditions. The state that commits itself to the creator-endowment theory of rights must, at some point, choose between these competing accounts. At that point, it has established a religion in precisely the sense the First Amendment prohibits, regardless of how cautiously its commissioners have chosen their language.
The third problem is the one that matters most for liberty. A theory of rights grounded in a creator’s endowment is not, in fact, more protective of rights than a civic theory of rights; it is less protective, for a straightforward reason. If rights are endowments from a creator, they can be expanded or contracted by appeal to that creator’s supposed intentions. A creator who wills traditional marriage as exclusively heterosexual has thereby, on this theory, withheld the relevant right from same-sex couples. A creator who assigns different roles to men and women has thereby withheld from women certain rights that men possess. A creator who commands believers to proselytise has thereby given them a right that, when exercised through state power, directly curtails the freedom of those being proselytised. The theological theory of rights is not a stable foundation for liberty; it is a mechanism for dressing the preferences of the theologically powerful in the language of cosmic authority, and history furnishes no shortage of examples of exactly that mechanism at work.
Civic theories of rights, by contrast, ground entitlements in the mutual recognition of persons as agents capable of having interests, suffering harm, and being owed consideration. This foundation does not depend on any theological premise. It requires only that persons exist and that their capacity for suffering and for flourishing be taken seriously. It is a foundation that can, in principle, be extended to include more people as our understanding of who counts as a full member of the moral community develops. Critically, it is also a foundation that does not require the non-believer to accept anyone else’s theological premises as a condition of their citizenship. John Stuart Mill identified this principle with characteristic clarity when he wrote that “the great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief.” The operative phrase is the last one: accountable to others. A civic theory of rights removes that accountability from the domain of theology, where it is unresolvable, and places it in the domain of mutual respect, where it can be reasoned about openly and revised in light of evidence.
Inverting the Logic of Religious Liberty
The commission’s framing of church-state separation as an attack on believers is not merely rhetorical misdirection, though it is certainly that. It is also a logical inversion of such completeness that it is worth pausing to appreciate just how thoroughly it misrepresents the historical and philosophical record on which it claims to draw.
Religious liberty, as a political principle, emerged not from the demands of religious majorities who felt constrained by secular governance, but from the experience of religious minorities who had been persecuted by states aligned with rival religious majorities. The impulse toward church-state separation was, in its origins, a protective response to theocracy and to the violence it reliably produces. The Baptists who received Jefferson’s letter were not writing to complain that the state was being too secular. They were writing because they lived in Connecticut, where the Congregationalist establishment still exercised real power over religious minorities, and they wanted federal assurance that the new republic would not allow civil authority to be deployed against dissenting believers. Their concern was not secularism; their concern was the very kind of state-aligned religious authority that the commission now wishes to rehabilitate.
Jefferson’s wall, in other words, was built partly at the request of believers who understood from direct experience that a state aligned with a particular religious tradition is a threat to everyone outside that tradition. The commission’s report, which treats that same wall as an instrument of anti-religious persecution, has not merely misread the history. It has reversed it entirely, transforming the protective instrument of a religious minority into an alleged weapon wielded against believers in general, while stripping out the specific context that explains why the instrument was built in the first place.
Robert G. Ingersoll, whose understanding of the founding settlement was considerably sharper than the commission’s, put the point with his characteristic directness: “I account in part for the civilization of America by the fact that our fathers were wise enough, and jealous of each other enough, to absolutely divorce church and state. They regarded the church as a dangerous mistress, one not fit to govern a president. This divorce was obtained because men like Jefferson and Paine were at that time prominent in the councils of the people.” The jealousy Ingersoll identifies is crucial. The divorce of church and state was achieved partly because the competing religious traditions in the early republic were each sufficiently powerful to prevent any other from claiming state endorsement without a fight, and partly because thoughtful people on every side of that fight understood what happens when such a fight is resolved in favour of one tradition’s institutional dominance. The commission’s report, which speaks as though American religious culture were effectively monolithic, is required to ignore this foundational pluralism in order to maintain its argument.
What the commission is actually arguing, beneath the constitutional language, is that the dominant Christian tradition should receive from the state a form of recognition and endorsement that it currently does not receive, and that the absence of such endorsement constitutes discrimination. This is the argument that a previously privileged group makes when its privilege is reduced to mere equality. The claim that neutrality is hostility is not a serious constitutional argument; it is the rhetorical expression of a sense of entitlement that has lost its institutional footing and is seeking to recover it by redefining fairness as bias and treating equality as persecution.
The Establishment Clause and Its Enemies
It is worth being precise about what the Establishment Clause actually says and why it says it, because the commission’s argument depends on a particular misreading of its purpose that has become common in certain legal and political circles and that has already begun to shape the jurisprudence of the current Supreme Court.
The First Amendment prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses are typically read together, and their combined effect is to create the space within which genuine religious liberty can exist. The Establishment Clause prevents the state from lending its authority to any particular religious tradition. The Free Exercise Clause prevents the state from interfering with the private religious practices of citizens. Together, they create a zone of genuine freedom precisely because they remove the state from the theological question, making no judgement about whose theological claims are correct while protecting everyone’s right to hold and practise their own.
The commission’s argument, and the broader legal movement it reflects, treats these two clauses as being in fundamental tension, with the Establishment Clause representing a threat to religious freedom rather than its complement. On this reading, any accommodation of religion by the state is a Free Exercise victory, and any restriction on state endorsement of religion is an Establishment Clause overreach that violates Free Exercise. The practical effect of this reading, if followed to its logical conclusion, is that the Establishment Clause is effectively nullified, and the Free Exercise Clause becomes an argument for state endorsement of religious practice whenever any religious claimant demands it.
This reading is logically incoherent, and the incoherence becomes immediately visible the moment you apply it consistently across religious traditions. If the Free Exercise rights of Christian organisations are violated when they cannot receive public funding for religious programming, then the Free Exercise rights of Muslim, Jewish, Hindu, Sikh, and Pagan organisations are equally violated when they cannot receive the same. A consistent application of the commission’s logic would require the state to fund and endorse the religious programming of every tradition operating within its jurisdiction, including traditions whose claims are mutually incompatible. No proponent of the commission’s position actually advocates for this outcome. What they advocate for is the removal of Establishment Clause restrictions specifically for the dominant Christian tradition, while the logical consequences of their argument for minority religious traditions are left quietly unexamined.
This selectivity reveals the argument’s true character. The commission is not making a principled case for religious liberty as such. It is making a case for the preferential treatment of one religious tradition, dressed in the language of universal rights. The universalist framing collapses the moment you ask which creator, which theological account of rights, and which interpretation of that creator’s intentions the state is being asked to endorse. At that point, the universal principle reveals itself as a particular one, and the particular one is not the commission’s to impose on everyone else without their consent.
The Danger for Non-Christians and the Non-Religious
It is a reasonable objection that the commission’s report, whatever its underlying assumptions, does not explicitly call for the establishment of Christianity as a state religion, and that to describe it as a threat to religious minorities and the non-religious is therefore to overstate the case. This objection should be taken seriously, and then it should be rejected on specific grounds.
The danger posed by the commission’s argument is not that it will result, overnight, in a formal establishment of religion. Constitutional democracies do not typically move in overnight jumps, and the formal mechanisms of the First Amendment remain in place. The danger is structural, operating at the level of first principles rather than specific policies. If the state accepts the argument that rights flow from a creator, it has committed itself to the position that the authority of rights depends on theological facts. At that point, the content of rights, who has them and on what conditions, becomes a theological question. And theological questions, in a society where one tradition holds substantially more institutional, cultural, and political power than others, will consistently be answered in ways that favour that tradition, without anyone needing to announce that this is what is happening.
Consider the position of the approximately 30 per cent of American adults who identify as non-religious, a proportion that has grown substantially over the past two decades and continues to grow. On the commission’s account of rights, these citizens’ entitlements flow from a creator in whom they do not believe and whose existence they have no reason to affirm. Their rights are, on this theory, endowments from a being whose reality they reject. The commission has not explained how rights endowed by a creator are properly available to people who deny the creator’s existence, or what the state’s relationship to those citizens should be given that they do not share the theological premise on which, according to the commission, citizenship’s deepest rights depend. The silence on this question is not accidental; it is the silence of an argument that does not have an answer and prefers not to be asked.
This is not a peripheral or pedantic point. It is the central question that any creator-endowment theory of rights must answer, and the commission, like all its predecessors in this line of argument, does not answer it. The non-religious citizen is either included in the creator’s endowment despite their non-belief, in which case the theological premise adds nothing to the civic account of rights and can be dropped without loss, or they are excluded from it, in which case the commission is arguing for a theory of rights that explicitly diminishes the standing of a substantial and growing portion of the population. Neither option supports the commission’s case, which is perhaps why the report declines to make either option explicit.
The situation of religious minorities is structurally similar, though the specific vulnerabilities differ. The Muslim citizen, the Jewish citizen, the Hindu citizen, the Sikh citizen, each holds a theological account of the creator that differs substantially from the Protestant Christian account that shapes the commission’s report. If the state endorses the creator-endowment theory of rights, it must determine whose account of the creator is authoritative when those accounts conflict, as they frequently do on questions of considerable practical importance. There is no theologically neutral answer to that question, and in a society where one tradition has dominated the culture, the law, and the institutions of government for most of its history, the likely direction of the adjudication is not difficult to predict.
A. C. Grayling identified the structural risk with precision when he observed that “those who live by hard and uncompromising views in political, moral and religious respects always, if given half a chance, silence liberals because liberalism, by its nature, threatens the hegemony they seek to impose.” The commission’s report is not the product of hard and uncompromising views in the ordinary colloquial sense; it is polished, procedurally careful, and speaks the measured language of constitutional jurisprudence. But the underlying logic it advances does genuinely threaten the kind of pluralist settlement that is the only reliable guarantor of freedom for everyone outside the dominant tradition. Grayling’s observation about what tends to happen when that logic gains institutional traction is supported by enough historical evidence to be taken as a serious warning rather than a polemical flourish.
History as Witness
One of the consistent rhetorical moves in the commission’s report, and in the broader political and legal movement it represents, is the appeal to history. The argument is that the founding generation intended the United States to be a Christian nation, or at least a nation whose public life was understood to be grounded in Christian theism, and that the strict separationist reading of the First Amendment is therefore a departure from original intent rather than a fulfilment of it.
This argument has been examined in considerable scholarly detail, and its weaknesses are well-documented. The founders were, as a group, considerably more theologically heterodox than the argument requires. Jefferson, as noted, was a deist who rejected orthodox Christianity with methodical thoroughness; he literally cut the miraculous passages out of his copy of the New Testament to leave what he considered the ethical core. James Madison, the principal architect of the First Amendment, was a consistent advocate for strict church-state separation whose Memorial and Remonstrance Against Religious Assessments, written in 1785, argued with considerable force that state support for religion corrupts both the state and religion simultaneously. Madison had read the history of European established churches closely enough to understand that entangling civil authority with ecclesiastical power does not strengthen either; it makes both answerable to the wrong masters. Thomas Paine, whose influence on revolutionary thought was enormous, was openly hostile to institutional Christianity in terms that would make the present commission deeply uncomfortable. Benjamin Franklin was a deist whose religious views were at least as far from evangelical Protestantism as Jefferson’s.
The founders who were genuinely orthodox Christians tended to support church-state separation not because they were secretly secularists but because they understood, from the experience of established churches in the colonies and in Europe, that state entanglement with religion damages religion. They were protecting their faith from the corrupting influence of political power, not demanding that political power align itself with their faith. Jefferson’s correspondents in the Danbury Baptist community grasped this intuitively, which is precisely why they framed their letter to him as a plea for the maintenance of the wall rather than a complaint about its existence. This is the dimension of the founding settlement that the commission’s report consistently elides, because acknowledging it would undermine the narrative that strict separation is a secular assault on a Christian founding rather than a protection sought by Christians themselves.
The broader historical record on church-state fusion is, if anything, even less supportive of the commission’s position than the specifically American history. The history of societies in which ecclesiastical and civil authority have been unified is not, on the whole, a history of expanded freedom and flourishing pluralism. It is a history of heresy trials, of religious violence, of minorities persecuted for failing to conform to the dominant theological tradition, of dissent suppressed in the name of divine authority, and of the intellectual and moral progress that depends on free inquiry being consistently retarded by the claim that certain questions have already been answered by revelation and need not be revisited. This is not a selective reading of the evidence; it is what the evidence consistently shows across cultures and centuries, from the Inquisition through the Wars of Religion to the twentieth-century experience of states that aligned civil authority with ideological orthodoxy, religious or otherwise.
The American experiment in church-state separation was, in part, a conscious attempt to learn from precisely this history. Jefferson had read it thoroughly, and so had Madison. Paine had lived close enough to the consequences of European religious politics to understand viscerally what was at stake when civil and ecclesiastical authority were permitted to reinforce each other. The wall of separation was built by people who knew what happens when it does not exist, and who were determined to prevent the repetition of those consequences in the new republic. The commission’s report, which treats that wall as an obstacle rather than a protection, requires its authors and their readers to forget a very considerable amount of that history, which is perhaps why the report’s treatment of the historical record is so selective and so strategically incomplete.
The Honest Meaning of Religious Liberty
The phrase “religious liberty” has become, in contemporary American political discourse, a term of considerable strategic ambiguity. It is used sometimes to mean genuine freedom of conscience: the right of every person to hold and practise whatever religious or non-religious beliefs they find compelling, free from state interference or coercion. In this first sense, it is a principle that any consistent advocate of individual liberty should endorse without reservation, because it applies to everyone equally and depends for its force on the state’s theological neutrality.
But the phrase is also used, with increasing frequency and institutional weight, to mean something rather different: the right of religious organisations and religiously motivated individuals to be exempt from generally applicable laws when those laws conflict with their religious convictions, and the right of the state to give preferential treatment to religious claims over non-religious ones. In this second sense, “religious liberty” is not a principle of equal freedom but a claim to privileged standing, and the commission’s report is largely an argument for this second, privileged version dressed in the rhetorical clothing of the first, equal version.
The principle that every person has the right to practise their religion without state interference is a principle of genuine liberty. It applies to the Christian, the Muslim, the Jew, the Hindu, the Pagan, the Humanist, and the atheist with perfect consistency. Nobody’s freedom of conscience is dependent on anybody else’s theological premises, and the state’s neutrality between traditions is what makes this equal freedom possible. This is what the constitutional settlement actually guarantees, properly understood, and it is a settlement worth defending.
The principle that religious organisations should be exempt from anti-discrimination law, or that public institutions should endorse religious claims, or that the state’s understanding of rights should be grounded in a theological premise, is not a principle of equal freedom at all. It is a principle of religious privilege, and it is available only to the tradition that is sufficiently powerful to have its claims treated as the default theological framework for civic life. In a country where that tradition is predominantly Protestant Christianity, “religious liberty” in this second sense is, practically speaking, Christian privilege operating through constitutional language, and calling it by a different name does not change its character or its consequences.
The question that the commission’s report consistently refuses to answer is the question of whose theology the state should endorse when it accepts the creator-endowment theory of rights. The report speaks as though this question resolves itself, as though there were one obvious answer that any reasonable person would accept upon reflection. There is no such answer. There are hundreds of millions of religious believers in the United States who would give genuinely incompatible answers to that question, and there are tens of millions of non-religious citizens for whom the question is misconceived from the outset. A government that accepts the commission’s premise has not resolved this disagreement; it has simply chosen one side of it and imposed that choice on everyone else, which is precisely what the Establishment Clause was designed to prevent.
Genuine religious liberty, as opposed to the commission’s version, requires the state to remain agnostic on precisely this question. The state does not know which theological account of the creator is correct, if any. It is not competent to determine this, and its citizens disagree about it with sincerity and on grounds that reason cannot definitively resolve. The only arrangement consistent with equal freedom for all of them is one in which the state declines to adjudicate the theological question and instead grounds its authority in principles of civic equality that do not presuppose any particular answer to it. This is what church-state separation achieves. This, specifically, is what the commission is arguing against.
Faith Before Reason and the Commission’s Epistemic Error
There is an epistemic dimension to the commission’s argument that deserves attention alongside its constitutional and philosophical problems. The report treats the theological premise, that rights flow from a creator, as a self-evident truth that can serve as a foundation for civic reasoning without itself requiring justification. This is the characteristic move of faith-based reasoning: the theological premise is not offered for examination; it is assumed as the starting point from which everything else proceeds, and dissent from it is framed not as a reasonable philosophical position but as a failure of moral or civic seriousness.
The difficulty with this approach in a civic context is that self-evident truths are only self-evident to those who already share the relevant framework. To someone who does not share the theistic premise, the claim that rights flow from a creator is not self-evident at all; it is a substantive metaphysical claim that requires argument and evidence before it can be accepted as the foundation of anything. And the evidence for it, examined carefully and without prior commitment to the conclusion, is considerably less impressive than the commission’s report implies. The existence and nature of a creator, the mechanism by which such a creator endows rights, the method by which human beings are to determine what those rights are, and the authority of any particular tradition’s account of these questions are all matters on which the evidence is genuinely contested. Treating them as settled, foundational, and beyond the requirement of justification is not intellectual seriousness; it is intellectual evasion dressed as certainty.
We do not, in fact, derive our understanding of human rights from theological premises in practice, whatever our rhetoric may suggest. The post-World War Two human rights framework, the Universal Declaration of Human Rights and its successor instruments, was constructed through a process of philosophical negotiation among people from radically different religious and cultural traditions, precisely because its architects understood that a rights framework grounded in any single theological tradition would not be universally acceptable or defensible on grounds that everyone could recognise. The resulting framework grounds rights in the dignity, rationality, and vulnerability of persons, not in any particular account of their creation. It is, in this sense, a civic and philosophical achievement rather than a theological one, and its scope and effectiveness have depended on maintaining that theological neutrality across the decades of its operation.
This does not mean that religious traditions have had nothing to contribute to the development of human rights thinking. They have contributed a considerable amount, as have secular philosophical traditions, and the history of that mutual contribution is complex and genuinely interesting. But the commission’s argument requires something more specific than the claim that religion has influenced rights thinking. It requires the claim that rights are constitutively dependent on a theological premise, such that a secular grounding for rights is either impossible or illegitimate. This stronger claim is the one that is philosophically indefensible, and it is this stronger claim that the commission’s report, read carefully, actually makes, even when its language is designed to make it seem like something more modest.
The epistemological habit of placing faith before reason in civic argument has consequences that extend well beyond the question of rights. It establishes a precedent for resolving public disagreements by appeal to theological authority rather than shared reasoning. Once that precedent is established, the question of whose theological authority is authoritative becomes the central political question, and it is one that cannot be resolved by the methods of democratic deliberation, because it is, by its nature, not subject to the kind of evidence and argument that democratic deliberation requires. The commission’s report, by advancing a theological account of rights as a basis for public policy, is arguing for a mode of civic reasoning that would, if consistently applied, make rational public discourse about fundamental political questions progressively more difficult rather than more tractable.
What Neutrality Costs and What It Buys
Defenders of the commission’s position sometimes argue that state neutrality between religious and non-religious worldviews is itself a kind of theological commitment, a commitment to a secularist or naturalist metaphysics that is no more neutral than the theistic alternative. This is a philosophically interesting argument, and it deserves a serious response rather than dismissal, because its surface plausibility is considerable even though its substance dissolves under examination.
The response is this: state neutrality between religious traditions does not require the state to take a position on the metaphysical question of whether any of those traditions is true. It requires only that the state decline to use its coercive authority, its tax revenues, and its symbolic endorsement to advance the claims of any particular tradition. A state that funds Christian schools is not neutral. A state that funds no religious schools but provides secular education to all is neutral between religious traditions, even though it is not neutral between education and the absence of education. The neutrality at issue is specifically theological neutrality, and theological neutrality does not require metaphysical secularism; it requires only that the state not act as a theological authority, adjudicating between competing accounts of the divine and lending its power to whichever account it has selected.
What this neutrality costs is the comfortable reassurance, for those in the dominant tradition, that the state shares and endorses their deepest commitments. This is a real cost, psychologically and culturally, and it would be dishonest to pretend otherwise. There is something genuinely different about a civic life in which the state’s authority is understood to flow from divine endorsement and one in which it flows from civic agreement among persons who may hold very different views about the divine. People who have lived in the former arrangement and are asked to accept the latter may experience the transition as a loss, not merely of privilege but of something more fundamental: the sense that the moral universe they inhabit is publicly recognised and affirmed by the institutions that govern them.
This experience is understandable and deserves to be acknowledged rather than dismissed. But what it does not constitute is a violation of liberty. The state that declines to endorse your theological account of the universe has not violated your freedom to hold that account, to practise your religion, to organise communities of faith, to advocate for your beliefs in public discourse, or to vote according to your conscience. It has merely declined to place its authority on your side of a theological dispute that it is not competent to resolve. This is not persecution; it is the condition of genuine pluralism, and it is the arrangement that makes equal citizenship possible for everyone who does not share your theological commitments.
What theological neutrality buys, in exchange for that sense of cosmic endorsement, is something considerably more durable and considerably more valuable: the assurance that the state’s power will not be turned against you because your theological commitments differ from those of the majority. For the Muslim citizen in a predominantly Christian country, for the Jewish citizen in almost any country, for the atheist in practically every country, for the member of any minority religious tradition, this assurance is not an abstraction. It is the difference between citizenship and exposure, between equal standing and conditional tolerance, between knowing that the law will protect you regardless of what you believe about the creator and knowing that your protection depends on not provoking the theologically dominant. The commission’s report, which treats theological neutrality as the enemy of freedom, is asking these citizens to accept an arrangement in which their standing in the civic order depends on the generosity of a theologically engaged state rather than on constitutional guarantees that apply to everyone equally. Conditional tolerance is not liberty; it is the arrangement that precedes the withdrawal of tolerance when political conditions change.
Responding to the Anticipated Objections
Several objections to the argument made above will be familiar to anyone who has engaged with the literature on religious liberty, and they deserve direct responses rather than the kind of strategic non-engagement that is common in this debate.
The first objection is that the commission is not arguing for the establishment of religion in any meaningful sense but merely for the removal of what it sees as a secular bias in the current interpretation of the Establishment Clause. The courts, on this view, have overcorrected away from religion, and the commission is simply arguing for a more balanced reading. This objection is difficult to sustain once the commission’s report is read carefully, because the report does not merely argue for a less restrictive reading of the Establishment Clause. It advances a positive theological claim, that rights flow from a creator, that goes considerably beyond any neutral rebalancing of two constitutional provisions. A genuinely balanced reading of the Establishment Clause would not require the state to endorse any account of where rights come from; it would simply regulate the specific ways in which state power can and cannot be aligned with religious institutions. The commission’s report goes much further than this, and the additional distance it travels is precisely what makes it constitutionally and philosophically problematic.
The second objection is that the commission’s members are people of sincere faith who genuinely believe they are defending liberty rather than undermining it, and that to describe their argument as a threat to freedom is to attribute bad faith to sincere people. This objection confuses the evaluation of an argument with the evaluation of the people making it. The sincerity of the commission’s members is not in question here, and nothing in this essay has been written to impugn their motives or their character. What is in question is whether their argument, sincerely advanced, is correct, and whether the policies it supports would be good for everyone who lives under them. Sincere people can make arguments that are logically flawed and that have consequences their authors did not intend and would not endorse if they saw them clearly. The question is not whether the commission’s members are sincere but whether their argument can withstand scrutiny, and the analysis above suggests that it cannot.
The third objection is that religious traditions have historically been among the most important defenders of human dignity and liberty, from the abolitionist movement to the civil rights movement, and that the commission’s argument is therefore not as threatening to liberty as secular critics claim. This objection has genuine historical substance: religious traditions have indeed contributed enormously to the defence of human dignity, often at great cost to themselves, and this contribution should not be minimised or treated as though it never happened. But the argument from religious traditions’ historical contributions to the rightness of the commission’s constitutional position is not logically sound. The question is not whether religion can motivate people to defend liberty, which it clearly can and frequently has, but whether a state that grounds its authority in a theological premise is thereby more protective of liberty than one that grounds its authority in civic equality. The historical record, as argued above, consistently suggests that it is not, and the civil rights movement’s use of religious language and motivation does not require or imply that the separation of church and state was mistaken; many of its leaders were explicit that their cause was one of civic equality and constitutional fulfilment, not theocratic imposition.
The fourth objection, perhaps the most commonly heard in current American political discourse, is that secularists and atheists are themselves a kind of religion or ideological movement, and that their dominance in certain cultural institutions constitutes an establishment of secularism just as objectionable as any establishment of Christianity. This objection involves several confusions that compound each other. Secularism, as a constitutional principle, is not a metaphysical worldview but a procedural commitment: the state does not take sides in theological disputes. This procedural commitment is not itself a theological or metaphysical position; it is a rule about the limits of state authority that is compatible with a wide range of theological and non-theological worldviews. The fact that individual secularists may hold strong atheist or naturalist views does not make the constitutional principle of church-state separation equivalent to an establishment of atheism, any more than the fact that many constitutional lawyers hold strong personal political views makes the constitution a partisan document. Conflating the procedural principle with the personal convictions of some of its advocates is a rhetorical convenience, not an argument.
The Stakes of the Argument
It would be convenient, and perhaps reassuring, to treat the commission’s report as a piece of partisan positioning that will have little practical effect on the actual settlement of church-state relations in the United States. This reassurance would be mistaken, and the grounds for mistaking it are already visible in the jurisprudence of the past several years. Reports of this kind, produced by official bodies with the authority of the executive branch behind them, do not exist in a vacuum. They articulate and legitimate positions that then influence judicial appointments, legislative priorities, regulatory decisions, and the broader cultural conversation about the meaning of constitutional principles. The argument the commission is making has already shaped significant Supreme Court decisions in cases involving public funding for religious schools, religious exemptions from anti-discrimination law, and the permissibility of religious expression in public institutions. It will continue to shape those decisions as the court’s current composition holds for years or decades to come.
The practical consequences of accepting the commission’s framework are not abstract or remote. They include the funnelling of public funds to religious schools that are exempt from anti-discrimination protections that apply to every other publicly funded institution. They include the erosion of protections for LGBTQ+ employees and service users who seek recourse against religiously motivated discrimination by organisations that receive public contracts and public money. They include the introduction of religious content into public school curricula under the cover of teaching about religion or acknowledging the nation’s founding principles. They include the progressive erosion of the secular character of public institutions that exist to serve everyone regardless of their theological commitments. None of these consequences individually amounts to the establishment of a state religion in the formal sense. Cumulatively, however, they represent a significant shift in the relationship between religious authority and civic life, one that makes the standing of religious minorities and the non-religious increasingly contingent on the goodwill of the theologically dominant, rather than on constitutional guarantees that apply without regard to theological commitment.
This is why the argument needs to be engaged at the level of principle rather than merely resisted at the level of individual policies. The commission is not making a series of disconnected policy arguments that can be addressed one by one; it is advancing a coherent theological account of the foundations of civic life, and that account, if accepted, would transform not just specific policies but the underlying logic by which questions of rights and civic equality are determined. Contesting individual policies without contesting the theoretical framework that generates them produces at best a series of rearguard actions, each of which is won or lost without settling the underlying question. The framework itself needs to be examined and rejected on principled grounds, and the principled grounds are available, well-established, and historically supported: the separation of church and state is not an attack on believers but their most reliable protection; the civic theory of rights is not a secularist imposition but the only basis on which rights can be extended equally to everyone; and a state that endorses any theological account of the universe is a threat to the freedom of everyone who does not share that account, whether or not the state intends it to be.
The treatment of religious ideas as beyond criticism is precisely what produces the kind of institutional overreach the commission’s report represents. When a theological premise is placed beyond question, treated as a self-evident foundation rather than a claim requiring justification, it becomes available for deployment as a tool of political power in ways that its proponents may not intend and cannot easily control. The history of this dynamic is long and consistent, and the commission’s report, for all its constitutional language and procedural polish, is participating in it whether its authors recognise that participation or not.
Why Secularism Serves the Religious Too
There is a final point to make that is directed specifically at the religious reader who may have followed this argument with scepticism, suspecting that the case for church-state separation is ultimately a case against religion rather than for it. That suspicion is understandable, given how often the principle is deployed in ways that feel hostile to religious expression, and it would be dishonest to pretend that some of its proponents do not harbour precisely that hostility. But the principle itself is not hostile to religion, and the case for it can be made in terms that should be persuasive to anyone who cares about the integrity of religious institutions as well as their liberty.
A state that is genuinely neutral between religious traditions is not a state that is hostile to religion. It is a state that refuses to play favourites between them, and that refusal protects every tradition, including the dominant one, from a particular and historically well-documented form of corruption. Religion that depends on state endorsement for its vitality is religion that has outsourced its moral authority to a political institution, and political institutions are not reliable guardians of theological integrity. They endorse religions when it is politically convenient, and they modify, constrain, or abandon that endorsement when political conditions change, as the history of every established church in every country where one has existed will demonstrate at considerable length. The relationship between state endorsement and religious vitality is not what the commission’s arguments suggest: the United States, with its strict formal separation of church and state, has historically been one of the most religiously observant societies in the developed world, while countries with established churches, such as England or Sweden, have tended toward substantially lower rates of religious practice and identification. The commission, in seeking state validation for religion, is requesting an arrangement that the comparative evidence does not associate with religious flourishing.
The history of established churches in Europe is largely a history of institutions progressively hollowed out by their entanglement with political power, their theological distinctiveness subordinated to the requirements of state management, their prophetic independence lost in the compromises of official status. The Church of England’s relationship to the British Crown is an instructive example: an institution that began as a vehicle for political convenience has spent five centuries negotiating the tension between its theological commitments and its official obligations, with the result that it is neither fully free as a religious institution nor particularly effective as an arm of the state. The commission, by seeking state endorsement for a theistic account of rights, is asking for a form of political validation that the history of established religion consistently shows to be corrosive rather than protective of what makes religious institutions worth having.
The Baptist tradition that produced the letter to Jefferson understood this clearly and from direct experience. The independent church, answerable to its members and to its theological convictions rather than to the state, is a more genuinely free religious institution than the established church, for all the latter’s official recognition and state-funded maintenance. The commission’s report, by seeking state endorsement for a theistic account of rights and by framing the absence of that endorsement as persecution, is asking for a form of political validation that would come at a significant cost to the independence and integrity of the religious traditions it claims to serve. An established religion is also, always, a managed one, and the managing is done by people whose primary accountability runs to political rather than theological authority.
The secular settlement, properly understood, is not the enemy of religion. It is the arrangement that allows religion to exist in its most genuinely free form: voluntary, self-governing, answerable to its own convictions rather than to the requirements of political usefulness. The commission’s report, by framing this arrangement as an attack on believers, has not only misread the constitutional history and the philosophical foundations of religious liberty. It has also disserved the religious traditions it claims to represent, by encouraging them to seek a form of state validation that history consistently shows to be corrosive of the very qualities that make religious institutions worth having. The churches that have retained genuine moral authority in American life have generally done so through independence, not through alignment with state power. The commission is advising the faithful to trade that independence for an official endorsement that would cost them the very thing that makes their institutions meaningful.
Understanding why the commission is wrong requires no hostility to religion, no dismissal of the importance of faith in human life, and no assumption that religious believers are less capable of civic reasoning than their secular counterparts. It requires only a clear-eyed examination of what church-state separation actually does, why it was established, whose interests it serves, and what the alternatives look like in practice. That examination, conducted honestly and without prior commitment to the conclusion, consistently reaches the same verdict: the wall of separation is not an obstacle to religious freedom but its most durable foundation, and the commission’s project of subordinating civic life to theological authority is not a defence of that freedom but its most serious current threat.
Conclusion
The Religious Liberty Commission’s report is a document that deserves serious engagement rather than partisan dismissal, because the argument it makes is serious, coherent within its own premises, and increasingly influential in the legal and political institutions that shape American civic life. The answer to that argument is not contempt for the religious tradition from which it emerges. The answer is a principled, evidence-based account of why the theological grounding of rights is incompatible with the equal freedom of all citizens, why church-state separation protects believers as much as it protects everyone else, and why a government that endorses any theological account of the universe is a threat to the freedom of everyone who does not share it.
The founders who built the wall of separation understood this. The religious minorities who requested it understood it. The philosophical tradition from Locke through Jefferson through Mill through Russell has articulated it with increasing clarity and increasing philosophical rigour over the course of three centuries. What the commission is proposing, beneath its constitutional language and its procedural polish, is that the state abandon its theological neutrality in favour of an account of rights grounded in a creator whose existence and nature are disputed by a substantial portion of the population it governs. This is not a modest procedural adjustment to the interpretation of the First Amendment. It is a fundamental reorientation of the relationship between religious authority and civic life, one that would transform the standing of tens of millions of citizens from equal members of a secular republic into tolerated guests in a theocratically organised state, their standing dependent on the generosity of the theologically powerful rather than on guarantees that apply without exception to everyone.
The honest answer, stated plainly, is that the commission is not defending religious liberty. It is seeking to capture the authority of the state for a particular theological account of the world, and to use that authority to impose the consequences of that account on everyone who does not share it. Calling that project by liberty’s name does not change what it is, and the fact that it is pursued with sincerity and in constitutional language does not change what it would produce. The separation of church and state is not a secular imposition on a religious nation. It is the founding guarantee that makes equal citizenship possible for everyone, and it deserves to be defended on precisely those terms, by the religious and the non-religious alike.