Religious Freedom Can Now Mean Only: Freedom for Religion
In response to: Freedom of, Freedom for, and Freedom from Religion: The Contested Character of Religious Freedom in America
A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”Michael Zuckert’s Liberty Forum essay does an excellent job of bringing to light ambiguities and tensions that have always been present in the notion of religious freedom. He is certainly right that there is no Pure Theory of Religious Freedom, which, if only we can grasp it and make it universally accepted, would resolve all the controversies regarding the relations between religion and politics. Certainly there is no such pure theory somehow to be uncovered in the original meaning of the Constitution or in the unified mind of The Founders. Still, this skepticism regarding a Pure and Original Theory of Religious…
More Responses
The central point of Michael Zuckert’s Liberty Forum essay is that contemporary disputes about religious liberty should not come as a surprise, since they are the result of three contrary, though sometimes overlapping, understandings of religious liberty that have been found in the body politic in differing degrees since the American Founding. He classifies these…
Michael Zuckert’s Liberty Forum essay is a great introduction to religious liberty as it is discussed in America today, and provides a useful analytical framework to understand the tensions and controversies we face with regard to religious liberty, and perhaps liberty more generally. He strikes me as on the mark in his conclusion that religious…
The first two responses to my Liberty Forum essay illustrate well that political theory is (still) not an exact science. Francis Beckwith finds my “religious liberty taxonomy” to be “largely correct . . . as an account of the history of America’s church/state jurisprudence,” but he doubts that my classification is as adequate for understanding…
Reimagining Religion’s Distinctiveness in American Law
Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment to afford special protections for religious exercise and to place special limitations on government involvement with religion. The religion clauses, we have said, protect religious belief and practice from the dangers of state intrusion; protect the state and its institutions from the dangers of sectarian control; and operate to prevent the domination of religious minorities by majorities. Equality of treatment between religion and nonreligion has also always been a part of our tradition…
Responses
Many of my undergraduate students have trouble understanding the threat that religion might pose to the state. Often when teaching the Investiture Controversy, the 11th century contest between Pope Gregory VII and King Henry IV, the Holy Roman Emperor, over the appointment of bishops, I put to them the anachronistic question of whether the Pope has…
Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise…
I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties. Professor Hart…
The Limits of James Madison’s “Memorial and Remonstrance”
The stridency of the Obama administration’s secularism has led advocates of religious pluralism and the fully-clothed public square back to the Founders’ well to reproduce and rearticulate our vital heritage of religious liberty. Such stridency has been most clearly evidenced by Obama’s lawyers advocating against the rights of a Lutheran church to pick its clergy leadership in the Hosanna-Tabor case and the HHS contraceptive mandate. We could go on here, but these examples will do. Both cases illustrate the desire of the administration to do something that in other policy contexts it wouldn’t dare do: Privatize.
Why Religious Freedom?
When the Witherspoon Institute’s task force on religious freedom released its monograph, Religious Freedom: Why Now?, earlier this month, the answer to the question in the title seemed obvious. The controversy occasioned by the Obama Administration’s mandate that all health plans pay the cost of contraception was in the front of the news, and the Catholic bishops were taking a united stand insisting that, at the very least, their churches and agencies be exempt from being forced to pay for drugs and procedures whose use the Church teaches to be immoral. The press was beginning to frame the issue as women’s rights versus religious liberty, and while an immediate showdown was apparently averted in part by the distraction caused by a radio commentator’s outburst, the larger question seems likely to be featured in the upcoming presidential campaign. Religious freedom is an issue now, it seems, because the continuing growth of government involvement in daily life makes every matter of how people choose to live into a political question: “The personal is political,” once a radical slogan, has become a daily nuisance, or a burden, or a threat.
But actually, Religious Freedom: Why Now? has been several years in preparation, and its coincidental release in the midst of the contraception mandate debate has the happy effect of putting that debate in global perspective. This is not another parsing of the First Amendment or meditation on its contemporary meaning. Instead, it is an analysis of religious freedom as a human right recognized by the 1948 Universal Declaration of Human Rights and an argument concerning its strategic importance in international affairs. The strategic case for religious liberty rests on two empirical observations: first, that religion is resurgent across the globe today, contradicting the secularization thesis that had been axiomatic among modern social theorists, and second, that religious extremism, terrorism, and warfare launch from places where religious liberty is denied. The way to achieve global peace, the authors conclude, is not to contain or repress religion, even bellicose religion, but to nurture and expand religious freedom, which has the effect of restraining religious excess from within, preserving the good of religion and meliorating the bad. Although the monograph starts from the U.N. Declaration rather than the U.S. Constitution, the authors do not at all forget about America; indeed, the little book is a call to America to remember herself.
