Justifying Religious Freedom: Three Observations

I’ve been mulling over Steve’s very thoughtful posts (here and here) on the need to find persuasive justifications for religious freedom in America today. Although the Constitution expressly singles out religious freedom for protection, a new movement in the academy denies that religion merits such protection. The theological notions that support religious freedom do not have a place in contemporary liberal politics, the argument goes; religious freedom is thus a kind of anachronism. Although Steve doesn’t agree, he suggests that those of us who value religious freedom develop new, secular justifications to respond to this movement, and he offers one such justification, a “social contract” argument that I find very persuasive, as a start.

Steve, Marc, and others who have commented here and on other sites know more about this than I, and I hesitate a bit to offer my own thoughts. But I do co-host this website, so here are three observations: one optimistic, one (I hope) constructive, and one pessimistic.

First, notwithstanding the fact that some very serious scholars, and the Obama Justice Department, have argued that religious freedom no longer merits special protection, I doubt the American public shares that view. There’s going to be a fight, no question, and we may as well be ready. But the idea that religious freedom has special importance, and merits special protection, is deeply rooted in America’s self-image. (In recent surveys, large majorities even of secular Americans agree that religion has had a good influence on American life). As Steve says, the  commitment to religious freedom is part of our social contract and I don’t think it’s going to fade away. If p0liticians try to make the “religious freedom is an anachronism” argument, I suspect they will fail. When the Obama Adminstration argued in Hosanna-Tabor that religious freedom deserved no special protection, the Court unanimously disagreed.

Second, if one were looking for a secular justification for religious freedom, it seems to me that providing a check on state power is a pretty good one. Pluralism is the best guarantor of political freedom, and pluralism requires that the state have competitors. In Western history, nothing has proved a stronger competitor for the state than religion and, specifically, Christianity. Because of its unique capacity to encourage commitment, religion has provided a counterweight to state power since – well, since the late Roman Empire. Even people of no faith — in fact, even people who are hostile to religious belief as such — should be able to see this benefit of religion.

My third observation is the pessimistic one. This summer, I’ve been reading Ross Douthat’s great new book, Bad Religion, on the state of American Christianity. I’ll be writing more about Douthat’s book shortly, but, briefly, he argues that the consensus, “mere Christianity” that traditionally provided the vocabulary for public debate in America has all but disappeared. Propositions that until recently would have been seen as just “common sense” are easily dismissed today, by more and more people, as “sectarian.” As I say, I don’t think that most Americans view religious freedom as “sectarian,” and I don’t think they will anytime soon. But I’ll admit that Douthat’s book has made me a little more doubtful about this.

One response

  1. I’m afraid that — as an amateur, not a law scholar — I agree with Steven D Smith. I find the arguments of those who think religion “shouldn’t be special” to be more compelling than I want them to be, and they are not being usefully challenged, at least not enough. I am feeling a growing need to do more than simply point to the facts on the ground, either of the Constitution (I’m no lawyer but it seems interpretation can change), or of popular opinion. A lot of things have been said to be “deeply rooted in the American people” and have gone away. I think we need arguments, and the “check on state power” one is not I think going to appeal broadly across the political divide. On the other hand, something more civic republican than “Federalist Society” may be developed from the check on state power argument, so maybe there’s more bipartisan stuff there than I suspect. In any event, I strongly agree that something more needs to be done on this. The only big philosophical work I can point to that may be of help here is Chris Eberle’s RELIGIOUS CONVICTIONS IN LIBERAL POLITICS. Good stuff.

    Also, I think you would be better off reading Putnam and Campbell’s AMERICAN GRACE and Berger’s HERETICAL IMPERATIVE and Chris Smith’s SOUL SEARCHING than the Douthat, in which the ideology-to-scholarship ratio is kind of high.

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