The Why of Religious Freedom

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.

10 thoughts on “The Why of Religious Freedom

  1. You bring up some interesting points, but I think the last principle is a cop out. When religions trample on the civil rights of others, your tolerance is not keeping the peace. And some religions espouse some truly horrific abuses. Maybe they aren’t mainstream in the U.S., but what you extend to one religion, you must extend to all.

    • Thanks for your comment. Truly horrific abuses can be outlawed still under generally applicable law, even with existing religious liberty. The tradeoff between protection and open season on religion-targeted regulation is a trade-off between state entanglement in religion and factionalization. That’s why Madison’s point about faction is so important. Factions among the populace are inevitable for one thing, but they are a small price to pay to prevent state entanglement with religion, which has a profoundly tragic track record.

      • I realize this is a slippery slope argument, but how do we draw a line on acceptable vs unacceptable abuses of others rights? Saying we just legislate is sort of where we are, but then the fickle courts will reinterpret what is constitutional.

  2. Slippery slope arguments are totally legitimate here. The line is terribly opaque. As far as the Free Exercise clause in the U.S. Constitution goes, religious practices do not get to opt out of neutral, generally applicable laws so long as those laws have a rational basis.Thus, general laws that prohibit animal abuse will still apply to someone who insists that animal sacrifice is an integral part of their religion. But a law that specifically forbids animal sacrifice as a religious practice would be a problem, because it targets religion expressly. The federal and state Religious Freedom Restoration Acts have changed that calculus a bit so that even if a law is generally applicable to everyone, someone’s religious practice may still be able to get an exception if the law is a substantial burden on their religion. That’s obviously a much more porous boundary than the generally-applicable-law rule.

  3. Then there’s this entire notion that you point out from Madison about factions. He seems to think it’s a good thing. I disagree. Certainly differing viewpoints are of value, but the entire “us vs. them” dogma is destructive. Progress and reduction of violence in the world have developed as people begin to realize that we are all equally human. Not equal in ability, intellect, privilege, etc. But we are indeed one species. Religion fosters factionalism in spades. Toleration in a secular government just exacerbates the problem. History of religious wars should not guide us to toleration of religion, but to educating the extremist religious to be more tolerant of the secular.

  4. There seems to be a common pattern that those who want to control thought, want to eliminate religion. Whether it is the communist regimes, the Nazis, or the Roman’s, the fact that religion gave people a purpose for acting that is not constrained by the Government is scary for them. That is why China still controls religious expression and has periodic crackdowns, and it is why it is important to Putin that he has strong links into the Russian Orthodox church. Those who want to control are scared of: “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.

    So what does that say about the wish to control religious belief by the blogosphere? I don’t know the answer to that, but it feels like the same group that brought us “political correctness” and “safe spaces” is wanting to eliminate the competition from religious belief.

    • I certainly wouldn’t advocate government control of religion. That is totally counter to the freedom this country was founded on. But I’d say that religions are more interested in controlling minds than just about any other human institution.

      • True, which is why its entanglement between government and religion is so uniquely dangerous. So long as a religion’s attempt to control its flock lacks the coercive power of the state, it can be checked by other social forces.

  5. On a side note, there’s some interesting research out there that demonstrates that the size of a welfare state has an inverse relationship to a people’s religiosity. Larger government entitlement programs seem to go hand-in-hand with less church attendance and lower levels of religious faith. Of course, the causal relationship there could go either way, but my hypothesis is that as a people rely more on government to satisfy temporal needs, churches play a smaller role in providing a safety net, and thus people over time become less engaged in religion. There’s also a psychological shift perhaps–a powerful, benevolent government begins to fill the role traditionally played a church community or a deity.

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