The blogosphere has exploded over wedding cake. The Supreme Court has splattered the internet with fondant and rage. Baker Jack Phillips, who refused to bake a cake for a same-sex wedding, has achieved a modest win: human rights commissions cannot exhibit a hostility toward religion when enforcing anti-discrimination laws.
When a major religious-rights case hits the news, I’ve noticed a pattern. The outrage extends not to just the individual case but to the concept of religious freedom generally. Angry bloggers and tweeters love to insert scare quotes around the phrase “religious freedom,” as if donning latex gloves to handle toxic sludge. And the Colorado judge below certainly showed deep disdain for Mr. Phillips’ religious beliefs, which is perhaps the major reason that Phillips won. This pattern of skepticism toward religious freedom writ large signals that we should perhaps retreat to first principles. Why do religious practices and beliefs receive special treatment?
Almost all rights instruments around the world offer special protections for religious exercise. It seems the drafters of major human rights documents take for granted that religion deserves a special status in the hierarchy of rights. The United States Constitution, for example, says that “Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof.” The Universal Declaration of Human Rights likewise protects the right to “manifest [one’s] religion or belief in teaching, practice, worship and observance.” The EU Charter of Fundamental Rights parrots this language, and other national and international human rights instruments follow suit.
Yet some have begun to question this favored status. Their skepticism, I think, fails to fully appreciate religious freedom’s place in history and policy. In my view, at least four major rationales exist for recognizing specifically enumerated rights for religion: an autonomy rationale, a virtue rationale, a supremacy rationale, and a peacekeeping rationale. Each provides a valid reason for allowing religious exercise rights to preempt otherwise enforceable law.
The autonomy rationale is perhaps the most common justification for religious rights. The idea of a sheltered zone for the conscience cropped up frequently in the writings of the men who drafted the United States Bill of Rights. James Madison declared that religion “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” Thomas Jefferson struck a similar beat: “all men shall be free to profess [and maintain] opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
This autonomy approach, while compelling in its own right, doesn’t fully explain why religious belief and practice deserve special protection rather than conscience-based practices in general. Why should Judaism be protected while veganism isn’t? First, it isn’t clear yet whether religious rights extend to secular counterparts. Two old Supreme Court cases about draft dodgers seem to extend religious protections to behavior rooted in conscience generally. Under U.S. military law, draftees could evade the draft if their conscientious objection sprouted from “religious training and belief.” The law defined this phrase as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” The Supreme Court stretched the term “Supreme Being” to include any belief that “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Thus, even atheistic conscientious objectors could receive shelter under the religious-objection exception. An understandable position, though it threatens to transform the shelves of self-help books bookstores nationwide into constitutional sanctuaries. That sounds great to a small-government guy like me, but an overly expansive right does threaten to, in Antonin Scalia’s words, “court anarchy.” The other rationales, however, may help to further constrain the scope of the protection to truly religious endeavors.
The virtue rationale is likely to meet with skepticism nowadays, but it certainly motivated earlier statesmen. The perception that religion inculcated important values played an important role in the founders’ purposes for protecting it. George Washington said, “[R]eason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” To participants in America’s founding like James Madison, “Republican government needs religion because virtue and morality depend on religious faith.”
As with the autonomy rationale, civic virtues do not roost only in church belfries. Many modern atheists have sought to explain why moral codes do not depend on religion. However, religion does provide added layers of incentives for engaging in virtuous conduct. Washington viewed religion as particularly important because “most men require the fear of eternal damnation and the prospect of eternal salvation to fortify” uprightness of character. Secular systems of thought don’t offer carrots and sticks of quite that proportion. To the founding generation, religion carried a common thread of allegiance to a higher sovereign as motivation for obedience to important but unenforceable principles. Because government cannot reach into certain domains of conduct and lacks an omnipotent enforcement mechanism, it must ultimately rely on citizens who, in Lord John Moulton’s words, “can be trusted to obey self-imposed law.” Loyalty to a sovereign perceived as more powerful and important than the state fortifies the state’s trust in its citizens to impose duties and restraints on themselves. As Voltaire quipped, “If God did not exist, he would have to be invented.”
The supremacy rationale is likewise connected to the concept of a superhuman law-enforcer. This rationale for religious rights holds that religious duty preempts social duty. This preemption principle views religion as loyalty to a sovereign of a higher or supernatural order. The importance of this principle merits quoting James Madison at length:
“It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.”
This preemption by the superior sovereign occurs where the believer takes action out of homage or sense of duty “acceptable” to the divine. Madison emphasized a supernatural sovereign’s precedence in terms of time and degree. The duty to the divine predates the believer’s entrance into the social contract and is a stronger duty than that owed to civil authority. The supremacy rationale centers religion on loyalty to a supernatural or divine agent. Other ideologies, such as secular philosophies, lack this uniquely religious characteristic. Tied to the virtue rationale, this indicates that religion can encourage good behavior in a manner superior to the state, with its limited enforcement resources and pathetically human rulers.
The final rationale for protecting religion, the peacekeeping rationale, is more practical in nature. World history is rife with religious conflict. It is a remarkably and uniquely volatile agent in fomenting discord and unrest: in terms of wars waged, refugees relocated, and persecution perpetrated, it has few, if any, parallels. When government takes sides in such a fraught area of human existence, it lights a powder keg. As Justice Stephen Breyer put it, religious freedoms “embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance” that might form a nation “free of the religious strife that had long plagued the nations of Europe.” But as a casual glance at Monday’s Twitter feed will tell you, refusing to take sides foments discord, too. Perhaps, in honor of a darker history, we have simply chosen one evil over another.
But I think not. The four rationales outlined above do seem to ring with special salience when it comes to religion. More than other systems of thought, religion is rooted deep in one’s personhood, tends to accrue social capital like community and goodwill, offers a system of allegiance separate from the state, and is an extraordinarily sensitive social agent. For these reasons, I think we rightly protect religious belief and practice, even when it clashes with other social values. Of course, this means that practices repugnant to much of society will demand tolerance. But the better route is liberty, as Madison would have it, for “it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” Religious freedom is worth the price.