George Washington's home, Mount Vernon, is among America's most visited sites. But one of the most fascinating things at Mount Vernon is one of the least noticed — the key to the Bastille, the forbidding Paris fortress whose fall on July 14th, 1789, became the symbol of the French Revolution.

The key hangs in the hall at Mount Vernon, oversized for its classically-proportioned surroundings and often overlooked. But it once spoke eloquently for the highest hopes in both nations. Six weeks after the ratification of the U.S. Constitution in September 1787, Jefferson rejoiced at the meeting of the Estates General and the prospect of applying revolutionary American principles to France. In that same spirit, the Marquis de Lafayette took the key of the Bastille in 1789 and sent it to his good friend Washington as a symbol of their common vision of the future. Their hopes were to be dashed. Sobered by the reign of terror and the revolutionary ugliness from Robespierre and Danton to Napoleon, both Americans and French supporters of the United States revised their views. For example, Gouverneur Morris, the U.S. Ambassador to France, wrote home in disgust: “They want an American Constitution with the exception of a King instead of a President, without reflecting that they have not American citizens to support that constitution.”

In affirming that the First Amendment Religion Clauses are one of America's great contributions to Western civilization, the Williamsburg Charter appropriately looks to our nation's rich heritage of religious liberty. Like the Declaration of Independence, the Charter is a consensus document that recognizes human dignity and the importance of moral values that transcend the state. It eloquently invokes many of the historic principles that influenced the Founders in creating the republic, including inalienable rights, liberty of conscience, government by popular consent, the danger of centralized governmental power, the role of religion as a source of civic virtue, and the evils resulting from an established church. The Charter also emphasizes the close connection between civil and religious liberty.

The passage in the Williamsburg Charter referring to two questions — “how we view the place of religion in American life and how we should contend with each other's deepest differences in the public sphere” — opens two lines of inquiry. First, I understand the “we” in the passage to refer at least in part to the religious communities; from this follows the need to assess how these communities understand their exercise of religious and moral authority (power) in the public arena. Second, the passage is also open to an investigation of the exercise of power in our national life. Presumably the religious communities contend among themselves and with other institutions in the evaluation of how power is exercised in the name of the nation.

There is an inclination in some circles in the United States to take umbrage whenever church people address problems of public policy. The inclination seems to be based on the supposition that preachers have no business “intermeddling in politics.” In 1981 Senator Barry Goldwater took offense when Jerry Falwell and other “new rightists” denounced his nominee for the Supreme Court, Sandra Day O'Connor. The Senator issued a statement denouncing the “Moral Majority” for “undermining the basic American principles of separation of church and state by using the muscle of religion towards political ends.”

On April 17, 1990, in Employment Division v Smith, the Supreme Court decided that neutral laws of general applicability may be applied to restrict or forbid religious exercise, and that such applications raise no issue under the free exercise clause. The opinion removes many of the issues discussed in this journal from the scope of positive constitutional law.

The Court noted some exceptions. Whether anything remains of free exercise depends on future cases interpreting those exceptions and interpreting the Court's requirement that laws regulating religion be neutral. The Court recognized constitutional protection for religious speech and religious instruction of children, and if interpreted generously, those exceptions could protect a large proportion of religious conduct. If the exceptions and the neutrality requirement are interpreted narrowly, the free exercise clause has little independent content.

We are contending for the free exercise of religion in a democratic and pluralistic society. We would not be contending for it if we thought the free exercise of religion is adequately understood and protected at present. Critical to this contention is rethinking the religion clause of the First Amendment, and the larger part of this article is devoted to that rethinking. I will then offer some observations on the forces shaping this contention in the public arena today, and comment on the goal of a religiously informed public philosophy for our society's democratic experiment in republican governance.

Throughout history — and throughout the world — religious minorities of all faiths generally have not fared very well at the hands of religious majorities. Sadly, that has been the norm rather than the exception. And the Jews were always a religious minority in every country in which they lived. The seventeenth century French philosopher, Blaise Pascal, spoke both from knowledge and personal experience when he wrote in his Pensees: “Men never do evil so completely and cheerfully as when they do it from religious conviction.” All peoples, of course, are products of their collective historical experience. The Jews are no exception.

The odd title I chose for this article may betray a feeling of defensiveness about the Charter. “What's right with the Charter” might imply that much about it isn't right. “What's wrong with the Charter” would surely imply that it's totally bad. My title is meant to point to criticisms which have been leveled against the Charter and to say that, whatever its faults may be, those are not the things which are wrong with it. My title leaves the implication that the Charter isn't perfect. It is not. I thought it might be useful, therefore, to take up the ill-founded attacks on the Charter which caused some very good people to decline to sign it.

In order both to appreciate the great quality of the Charter and to see its limitations, it is important to understand that because of the religious and philosophic diversity of its drafters, it could only go so far in achieving agreement on issues of religious liberty. It did not even attempt to explore certain finite controversies such as the Adolescent Pregnancy Act, protection of religious freedom in the public schools, government aid to parents of religious school children, the “equal access” issue, religious tax exemption, or refusal of the Amish to use state-prescribed slow-moving vehicle signs. Second, it contains, in places, language that some would prefer to see altered or omitted, or there are omissions where some would like to supply text.

“In … recent times, … constitutional jurisprudence has tended, in the view of many, to move toward the de facto semi-establishment of a wholly secular understanding of the origin, nature and destiny of humankind and of the American nation. During this period, the exclusion of teaching about the role of religion in society, based partly upon a misunderstanding of First Amendment decisions, has ironically resulted in giving a dominant status to such wholly secular understandings in many national institutions.”

— The Williamsburg Charter

The Williamsburg Charter rightly focuses attention on the American contribution to religious liberty, which is a part of our Constitutional heritage. It has the virtue of trying to achieve consensus around issues of deep disagreement in various religious, education and political communities. For this reason, it makes a significant beginning in our thinking about religious pluralism.

It is not, of course, a perfect document and therefore needs critical evaluation. The original Constitution itself, although hailed in the opening paragraphs of the Charter as “the most wonderful work,” is not without its flaws. For example, the original Constitution tolerated human slavery and indentured service, and it limited the franchise to white, property-owning males.

The question of how we contend in the American public square on the many issues involved in the question of the First Amendment's religious clauses (or “clause,” as some of us would insist) is inextricably bound up in the question of who constitutes the “we” involved in the contention. That is, how we contend must take account of who we are. Unless there is some clarity on this point, the debate over the nature of the civility to which we are called is doomed to be conducted at a perilous level of abstraction.

As I survey the terrain from my own vantage point — that of a Roman Catholic theologian engaged in a host of issues and controversies at the intersection of moral norms and American public policy — the “we” involved here is a many splendored thing indeed. For our purposes, it seems to me that the “we” has at least four salient characteristics.

The Williamsburg Charter was signed formally in front of the Capitol in colonial Willliamsburg, Virginia on June 25, 1988, by 88 of the persons listed above as national signers of the charter. This date was chosen for the ceremonial signing because it marked the bicentennial of the ratification of the American constitution by the Commonwealth of Virginia and the call of the Virginia legislature for the prompt amendment of the constitution to include a bill of rights, including adequate protection for the “first liberty,” religious freedom.

Three common responses by the participants underscore the profound impression made by the event. First, due largely to the charge issued to the Signers by Senator Mark O. Hatfield, the public act of signing the Charter had overtones of a covenant renewal ceremony. Signing the Charter was seen to be more than accepting a set of ideas at a merely notional level. It was a public act that created a bond among representatives of all faiths and of none. Responsibilities were set out. Public commitments were given. Something happened. A compact was entered solemnly.

The two greatest dangers to religious liberty in the twentieth century have been sectarian violence and state repression. If the death toll from sectarian violence runs into the millions, the number of those who have died under state repression runs into tens of millions. It is our immense privilege to have with us Irina Ratushinskaya. A fine poet and a women of great courage, Irina was sentenced to seven years in jail as a prisoner of conscience, first writing those poems with match sticks on bars of soap and then smuggling the poems out to her husband through fellow prisoners who learned them by heart as messages of truth and hope. Ladies and gentlemen, with Kathleen Kennedy Townsend to help her read the poems in English, Irina Ratushinskaya.

Down through the years the Constitution has not always included all Americans — especially Blacks and women. No such charges have been leveled against the Religious Liberty clauses, though there have been occasions when their protections have been overridden or imperfectly applied. To remind us — as the Framers knew well — that “nothing human can be perfect,” we hear remarks from a distinguished Baptist pastor, an accomplished lawyer, and an eminent civil rights leader, Dr. Benjamin Hooks.

I count it a privilege to be asked to address you today. I have never been more consciously grateful for the priceless heritage of freedom, and particularly of religious freedom, that we enjoy. I am deeply aware of the occasion and the setting of this bicentennial celebration, and of the untiring work of many of you on behalf of religious liberty.

I have just arrived from the Soviet Union where it was my privilege to participate in the 1000 year celebration of Christianity in Russia. I was a guest of the Orthodox Church, and had the privilege of speaking a number of times not only in the celebrations, but preaching in Orthodox Cathedrals and Baptist Churches.

Just before going to the Soviet Union, my wife and I and several colleagues toured parts of China. I had the privilege of speaking at several universities, several of the newly opened churches, and was the second foreign visitor that Premier Li Peng received after his election as premier. We had many discussions with scholars, political leaders, and religious leaders in which we discussed the very points, to some extent, that concern us here today. Both countries are in the process of forming new laws governing religion; let us hope that they grant much more freedom to religion.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …

— U.S. Constitution, First Amendment

The Religious Liberty clauses of the First Amendment to the Constitution are a momentous decision, the most important political decision for religious liberty and public justice in history. Two hundred years after their enactment they stand out boldly in a century made dark by state repression and sectarian conflict. Yet the ignorance and contention now surrounding the clauses are a reminder that their advocacy and defense is a task for each succeeding generation.