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Religious Freedom in Search of Its Argument – Abroad Print E-mail
By Hadley Arkes   
Tuesday, 13 August 2013

In my last two columns, I’ve argued for a critical need to recast our arguments over “religious freedom” as they are offered not only in the courts but in the political arena. That need has become ever more evident, I argued, in the recent litigation over the Hobby Lobby stores and the resistance to the mandates over Obamacare.

Those columns drew a note from my friend Thomas Farr, who is now directing the Berkeley Center at Georgetown with the project on religious freedom. Tom had served as the first Director of the Office of International Religious Freedom in the State Department, a post created by the International Religious Freedom Act of 1998.

He wrote to alert me to his testimony in June, before a committee of the House, giving a rather grim report on the state of religious freedom abroad – and the evident, low standing of this project within our own government. But his testimony also bears out the point of my recent columns on the problems of coherence that afflict the arguments for religious freedom.

To make the case for religious freedom in that vast outside world bears a critical resemblance to the task of making the case for religious freedom as a “natural right.” One has to explain, in terms accessible to other people, why that claim to religious freedom has a claim to their respect even when they don’t understand or credit for a moment the truth that commands the devotion of the religious.

The task of explaining that point has proven hard enough in our own country. And so we might understand the perplexity that would beset people in the State Department even if they took religion seriously, which most of them do not. As Farr remarks, “a significant proportion of our foreign policy officials no longer believe that religious freedom is the ‘first freedom.’”

The State Department has the authority to initiate sanctions against countries with serious violations of religious freedom, but as Farr remarks, “it would be difficult to name a single country in the world over the past fifteen years where American religious freedom policy has helped to reduce religious persecution or to increase religious freedom.”   

Chief among the victims of religious persecution have been you-know-who: the Christians. And their situation has become worse even in the countries in which, as Farr says, our country has “poured blood, treasure, and diplomatic resources”: Iraq, Afghanistan, Pakistan, Egypt, China, Saudi Arabia, and Russia.

       Thomas Farr testifies.

But Farr touches there a point that should have been seen as a key to the puzzle, for he notes the situation in Syria, marked by a history of “religious persecution, first of Alawites by Sunnis and then of Sunnis by the Alawite regime of the Assads.” As the people in the State Department look out on the world, they see the religious suffering persecution at the hands of other armies of the religious.

Michael Novak has often recalled that understanding of James Madison and other Founders that the God who gave us freedom and reason did not wish men to be coerced into religious obedience. And that has indeed been the Catholic teaching, as in Dignitatis Humanae.

But that is not the understanding of God and “religion” that animates the radical jihadists or many other groups that fill our landscape, here and abroad, and carry the banner of “the religious.” The God of the American Founders was the God of the Declaration of Independence – the Author of the Laws of Nature, including the moral laws. He was that Creator who endowed us with rights. And he was not a local god, of this tribe of Americans. He was the God of the logos, of reason, the Creator of that human person who was marked, in his highest nature, by that gift of reason.

As I’ve argued in these columns, our case for religious freedom should start there, not with the invocation merely of beliefs, but with the things that our religious tradition teaches us about the canons of reason as the ground of our judgments – and the grounds of the law.

And yet that touches the truth that seems reluctant to speak its name these days even among people who have devoted themselves to the defense of religious freedom: that we risk coherence when we treat, as equally plausible and legitimate, any group that flies under the title of “religion.”

If the people at the State Department seem at sea or wanting in conviction, we have to ask, “Have our own friends, working on religious freedom, helped make these distinctions clear and given guidance to them?” 

Tom Farr’s own work here has been valiant, and his testimony deserves to be read in its fullness. He may be right in his guess that, if the office dealing with religious freedom were lifted in its standing and its powers, that would mark a willingness to take the issue more seriously. But that might simply be a grand distraction when the people who fill that office are not clear, in the first place, on what their subject is.

What they need to understand first is the character of those “religions” they are seeking to protect. And to grasp that point is to grasp as well the moral ground of the political regime they are seeking to preserve.  

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
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Comments (7)Add Comment
written by Howard Kainz, August 13, 2013
"We risk coherence when we treat, as equally plausible and legitimate, any group that flies under the title of “religion.” --- That is a major problem in promoting the freedom of religion. If, for example, a particular religion is committed to the militant destruction of all competing religions, do we concur in its right to pursue that goal? At question here is the definition of "religion."
written by Michael Paterson-Seymour, August 13, 2013
"If, for example, a particular religion is committed to the militant destruction of all competing religions, do we concur in its right to pursue that goal?"

As Lord Macauley said, "To punish a man because he has committed a crime, or because he is believed, though unjustly, to have committed a crime, is not persecution. To punish a man, because we infer from the nature of some doctrine which he holds, or from the conduct of other persons who hold the same doctrines with him, that he will commit a crime is persecution, and is, in every case, foolish and wicked... If, indeed, all men reasoned in the same manner on the same data, and always did what they thought it their duty to do, this mode of dispensing punishment might be extremely judicious. But as people who agree about premises often disagree about conclusions, and as no man in the world acts up to his own standard of right, there are two enormous gaps in the logic by which alone penalties for opinions can be defended."
written by Seanachie, August 13, 2013
Seems to me, Hadley, that State Department policy in virtually all areas is significantly influenced by the Secretary of State and his/her appointing authority. With that in mind, how can there be any questions about religious freedom when one considers the backgrounds of the current chief executive and the current and immediately past secretary of state? Elections have consequences. Moreover, while your article primarily addresses religious freedom as a global matter, consider the domestic attacks on religious freedom spawned by the current U.S. administration.
written by Manfred, August 13, 2013
I have cited this before, but going to "Trey Gowdy v. Sebelius" on YouTube might help to explain how this question of religious freedom has been handled by the courts historically. The video takes 5 minutes and 14 seconds.
written by Rich in MN, August 13, 2013
It is indeed tragic how our government will use foreigh aid as a "carrot-stick" to push an agenda of laisse faire utilitarianism and radical individualism with regards to sexual morality (contraception, abortion, gay rights) while not pushing for rudimentary religious liberty. (And after President Obama gave that nice speech and got that shiny honorary degree at Notre Dame, who woulda thunk it???) The very things that are being promoted by the US are those things that erode and ultimately destroy civilization, as Carle Zimmerman tried to warn us 66 years ago in his magnum opus, "Family and Civilization." But how do we fight dogmatic utilitarianism and individualism? In our society's blind pursuit of the golden calf -- interesting double entendre -- what counter arguments can be offered to which they will actually listen? And I fear that, if we grow only tares, we will be able to export only tares.
written by Hadley Arkes, August 13, 2013
I'm catching up with all of this late in the day, for I've been tied up in a seminar in Newport Beach. Our friend Seanache seems to have missed the central in the question that has connected these last three columns of mine. The issue is not confined to that "external world" affair. It is bound up with the central confusions of our defense of religious freedom in domestic affairs as well. And it utterly beside the point of the main question to note that this President and his Secretaries of State have no deep respect for the religious teaching that runs counter to their moral view of the world. But that doesn't spare us the need to get clear in the first place, for ourselves and the rest of the world--and even for our friends--on the things that define religion and distinguish between between the legitimate and the illegitimate in the doctrines propounded in the name of religion.
written by Rich in MN, August 14, 2013
I have no competence whatsoever in jurisprudence or constitutional law (unless you count watching a few videos by Charles E Rice and Gerard Bradley). With that disclaimer of incompetence and admitting more than a modicum of cynicism, I wonder if the arguments on religious freedom can be "recast" in the courts and the political arena without addressing the root problem: recasting them in the sphere of public opinion.

I regard many politicians as a rather malleable lot (just look at the major position changes on life and marriage issues by folks like Ted Kennedy, Hillary Clinton and Barack Obama, to name a few). And -- please forgive my impertinence -- sometimes it appears that the high court can also cater to the whims of public opinion/public "conscience" (SCOTUS 1992 ruling on Planned Parenthood vs. Casey might be one example).

As the Enlightenment has unfolded and God died as a "lived reality," it seems that Judeo-Christian moral principles held sway for a time through our cultural memory or cultural momentum. However, people need a god, they need a shepherd. If the real God died, then we need a substitute. Into that void, flying under the banners of "pluralism" and "freedom," came the entertainment industry with its own evaluations of truth and justice. And it outflanked our Maginot Line while we were asleep. And, consequently, our society became children of this lesser god. Its messengers include the producers of "Modern Family," and folks like Seth MacFarlane and the rapper Macklemore, to name just a very few. And this lesser god has fewer rules (that are not necessarily guided by reason) than the old, dead God whose followers have incurred a type of 'damnatio' for continuing to believe.

This is what "recasting" is up against -- a cultural tsunami in which language itself has changed and 'religious liberty' is in the modern dictionary as an archaism. Some folks have begun trying to reintroduce reasoned debate (in place of positive law) in the court of public opinion, among them are educators Jennifer Roback Morse and Janet E Smith who have tried to attack this cultural poison at its roots -- on college campuses and in the media -- but it is obviously a daunting task.

This is my fear about the entire noble task: that you (or whomever) will formulate the perfect, air-tight argument for the necessary moral ground of the law, and you will frame that argument with such eloquence that even a child can follow it and believe it, and you will show the absolute reasonableness as to why the burden of argument should be on Katherine Sebelius and not on Hobby Lobby -- and then NO ONE will listen, or maybe no one will listen who can actuate change in the system. They will not listen because they know their constituencies, and their constituencies do not want to have their legal system turned into "a theocracy" by the same people who brought them the Crusades, the Spanish Inquisition, the Galileo affair, the sex abuse scandals and coverups, not to mention all of those murderous Dan Brown revelations. This is the kind of idiocy that you are up against; this is the level of naivete in the tail that is wagging your dog. It seems only some sort of catastrophe (God forbid) would reach such a hard hearted bunch as we as a country have become.

But keep trying. I'm pulling for you.

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