New Defenses of Religious Liberty

As virtually anyone who’s paying attention is well aware, religious liberty is in a precarious state. For the moment, surveys seem to show that a majority of Americans believe religious liberty trumps newly discovered “rights” like gay “marriage.” But we have a whole series of decisions striking down reasonable programs that allow parents to send children to private (including religious) schools, the continued efforts by the administration to impose its beliefs in healthcare, not to mention the popular paroxysms of self-righteousness asserted against bakers, pizza owners, and executives who don’t follow the ideological passion of the moment. It is critical, therefore, to understand what religious liberty is and how the current cultural circumstances came to be.

Partly to that end, Villanova University School of Law recently hosted a workshop for scholars, sponsored by the Templeton Foundation. The participants were all interested in questions of religious liberty, or more broadly the relationship between modernity, or “the secular,” and religion. Some of the participants were hopeful for the prospects of religious liberty, despite its current state, while some were taking a more pessimistic view. And some reminded us that in many religious traditions, the kind of state (and whether it recognizes religious freedom in the way Americans until recently did) does not matter. The goals of religion, including Christianity, are generally not concerned with this world, and require that it not be aligned too closely with any form of government.

The workshop readings ranged from Burke and Jefferson to Benedict and John Courtney Murray, SJ. The participants considered whether the First Amendment can really be any longer considered what Murray called an “article of peace,” that is, a tool for a peaceful pluralism that itself expresses no position about religious beliefs. The alternative is that the First Amendment becomes an article of faith, and therefore of disagreement. Contrary to what some perhaps thought, arguing that the Constitution proposed a secular nation that did not have room for public expressions of faith creates more political and social tension.

As Steven Smith points out in his important recent book, The Rise and Decline of American Religious Freedom, absolutizing a secular state dissolves what he calls the “American settlement.” This settlement was an understanding that lasted from the early nineteenth century to the 1960s in which different religious groups could legitimately assert and discuss their claims in the public square; sometimes they would win, and sometimes lose, but none would elevated to the status of constitutional orthodoxy. This was a true pluralism, without affirming any one view of constitutional law as the correct one, and Smith believes it represents a unique contribution of the American political experience to the Western conflict between politics and faith. Recently, however, under the guise of a false egalitarianism, a strong secularism has been imposed as the “correct” reading of the American constitutional order.

The workshop also offered a sizable chunk of recent legal scholarship. Unfortunately, that scholarship has moved from defending a robust view of religious liberty towards arguing that, despite our own constitutional language and larger history, religion is not “special.” On this view, religious freedom is like any other liberty, such as free speech or freedom of association. Because of that, these scholars have argued, religion deserves no particular protection, especially in the face of significant government interests. We see here again the dissolving acids of a false equality. Everything, even different things, must be treated equally and the state is the final, and only, arbiter of what is permissible.

Edmund Burke by Joshua Reynolds, c. 1769 (National Portrait Gallery, London)
Edmund Burke by Joshua Reynolds, c. 1769 (National Portrait Gallery, London)

This scholarship complements what law professor Marc DeGirolami calls the rise of “dignitarian” harms seen, for example, in the Obergefell decision – although that is merely reflective of a larger phenomenon. This emerging legal position assumes that affronts to one’s dignity are actionable. Moreover certain acts putatively integral to one’s dignity – like a right to marry – must be protected and furthered by the government in such as way as to prevent any harm to dignity.

As DeGirolami points out in a paper titled “Free Exercise by Moonlight,” that is a dangerous path. By their nature, dignitarian claims cannot be refuted, and so it falls to the government to promote and ever-expanding scope to these claims. Moreover, whose dignity is being infringed is not always clear. Are those refused a same-sex wedding cake harmed in their dignity more than the baker forced to make it? This development, as the workshop noted, is tied deeply with the growth of the state. DeGirolami puts it like this:

The modern expansion of the reach of the state has resulted in concomitant increase in the kinds of recognition, and validation that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good.

Needless to say, this view, taken to its logical extreme, ends in totalitarianism. If there is nothing outside the state, that is, if the state determines the nature of one’s individual “dignity,” there is no end to its power.

One benefit of the workshop was the historical and comparative perspective it offered. The conversation ranged from the Investiture Controversy, the Reformation, the Wars of Religion, down to the present day. One way to understand the current debates is as another stage of the struggle between the Church and the world, between secular power and a check on that power understood to be outside the state. If that is the case, what will drive the protection of religious liberty is a culture of respect for traditions and people of faith, of which serious conversations like the one at this workshop is an example.

Gerald J. Russello is a lawyer and editor of The University Bookman (