by Ryan T. Anderson
One of the hallmarks of religious liberty protections is that they protect people of all faiths, even if their beliefs seem unfounded, flawed, implausible, or downright silly. Recognition of a right to religious freedom does not, however, depend on religious skepticism, relativism, or indifferentism. Rather, it rests on the intelligible value of the religious quest—the activities of seeking to understand the truth about ultimate questions and conforming one's life accordingly with authenticity and integrity.
The Catholic Church committed itself to precisely this understanding of religious freedom in the Declaration on Religious Liberty of the Second Vatican Council,Dignitatis Humanae. In doing so, it did not embrace the idea that “error has rights.” Rather, it recognized that people have rights—including the right to pursue religious truth and, within the limits of justice and the common good, to act on their judgments of what truth demands. All people possess these fundamental rights, even when they are, in some respects, in error. Kevin Seamus Hasson, the founder of the Becket Fund, captured this in the title of his book The Right to Be Wrong. Hasson rightly argues that religious liberty is for A to Z, Anglicans to Zoroastrians.
This basic view of religious liberty has also found a place in our civil law. James Madison’s Memorial and Remonstrance puts the point well: “The Religion then of every man must be left to the conviction and conscience of every man.” It is an “arrogant pretension” to believe that “the Civil Magistrate is a competent Judge of Religious Truth.” The First Amendment has been understood to embody this vision of religious liberty for much of our history, even as other aspects of religious free-exercise case law have changed.
The Religious Freedom Restoration Act (RFRA) reflects the same vision. Passed two decades ago with a unanimous voice vote in the House and by a 97-3 vote in the Senate, RFRA was signed into law by President Clinton. RFRA provides a reasonable balance between religious liberty and the requirements of public order. It says that government can substantially burden a sincere religious belief only when it is pursuing a compelling government interest in the least restrictive means available.
In a series of articles this summer at First Things, The Catholic Thing, and the Liberty Law Blog, Hadley Arkes has tried to recast the argument for religious liberty, not in terms of the sincerity of the religiously held belief and the competing concerns about public order, but in terms of its content, particularly in terms of its truth. Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. It is critical that we be clear on the foundation and the scope of religious liberty.
I. Some Practical Considerations on Religious Liberty in Court
Before getting to the fundamental questions about the nature and scope of religious liberty, consider some more mundane issues of religious liberty in court. Arkes aims his critique at judges and lawyers who make what he sees as the wrong sorts of arguments. He writes,
No one, of course, takes seriously the notion that the law would refrain from judgment when it comes to the sacrifice of widows on a funeral pyre, or the withholding of blood transfusions from a child, even if it were claimed, as a matter of “belief,” that these lives had spiritually ended. These words of the Court, disclaiming judgment, seem part of a Brigadoon-like world: they seem to flare into existence in the magic of the moment—only to evaporate when sedate reflection comes crashing in again. . . .
If we are really testing sincerity, some of these cases could be determined with truth serum or a lie detector test. But who would take any of that as a “justification” for releasing people from the obligation to obey any law we regarded as defensible . . . ?
Missing in these paragraphs is any consideration of the second half of RFRA: a compelling government interest being pursued by the least restrictive means. Preventing human sacrifice and ensuring the physical health of legal minors are certainly compelling government interests, and protecting everyone from such assaults seems to be the least restrictive way of serving those interests.
Arkes might think that the content of the beliefs makes all the difference. After all, true religious beliefs would never require anyone to act in a way that violated the demands of justice or the common good. But even if it’s never socially harmful to protect true beliefs, we can’t infer that a false belief is neverworth protecting. Sometimes it is. It’s not disqualified by being false, because even acting on a sincerely held false belief can realize the good of religion. Sometimes, we can manage to respect that good while still securing the overall common good. When we can do this, we should. That was the lesson of Vatican II and RFRA.
Yet even true religious beliefs may be thought to be at odds with justice and the common good. After all, we aren’t governed by philosopher-kings with perfect clarity about moral truth. In the real world, government officials make mistakes. Indeed, at issue in the Hobby Lobby case were true beliefs about the morality of killing unborn life. Yet officials in the Obama administration (by issuing the HHS mandate) and various federal judges (by siding against the plaintiffs) concluded that these beliefs were at odds with the demands of the common good.
The Language of “Beliefs”
...
II. The Foundation and Scope of the Religious Liberty Right
...
III. Concluding Thoughts on the Right to Do Wrong vs. the Right toBe Wrong
..............
The Catholic Church committed itself to precisely this understanding of religious freedom in the Declaration on Religious Liberty of the Second Vatican Council,Dignitatis Humanae. In doing so, it did not embrace the idea that “error has rights.” Rather, it recognized that people have rights—including the right to pursue religious truth and, within the limits of justice and the common good, to act on their judgments of what truth demands. All people possess these fundamental rights, even when they are, in some respects, in error. Kevin Seamus Hasson, the founder of the Becket Fund, captured this in the title of his book The Right to Be Wrong. Hasson rightly argues that religious liberty is for A to Z, Anglicans to Zoroastrians.
This basic view of religious liberty has also found a place in our civil law. James Madison’s Memorial and Remonstrance puts the point well: “The Religion then of every man must be left to the conviction and conscience of every man.” It is an “arrogant pretension” to believe that “the Civil Magistrate is a competent Judge of Religious Truth.” The First Amendment has been understood to embody this vision of religious liberty for much of our history, even as other aspects of religious free-exercise case law have changed.
The Religious Freedom Restoration Act (RFRA) reflects the same vision. Passed two decades ago with a unanimous voice vote in the House and by a 97-3 vote in the Senate, RFRA was signed into law by President Clinton. RFRA provides a reasonable balance between religious liberty and the requirements of public order. It says that government can substantially burden a sincere religious belief only when it is pursuing a compelling government interest in the least restrictive means available.
In a series of articles this summer at First Things, The Catholic Thing, and the Liberty Law Blog, Hadley Arkes has tried to recast the argument for religious liberty, not in terms of the sincerity of the religiously held belief and the competing concerns about public order, but in terms of its content, particularly in terms of its truth. Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. It is critical that we be clear on the foundation and the scope of religious liberty.
I. Some Practical Considerations on Religious Liberty in Court
Before getting to the fundamental questions about the nature and scope of religious liberty, consider some more mundane issues of religious liberty in court. Arkes aims his critique at judges and lawyers who make what he sees as the wrong sorts of arguments. He writes,
No one, of course, takes seriously the notion that the law would refrain from judgment when it comes to the sacrifice of widows on a funeral pyre, or the withholding of blood transfusions from a child, even if it were claimed, as a matter of “belief,” that these lives had spiritually ended. These words of the Court, disclaiming judgment, seem part of a Brigadoon-like world: they seem to flare into existence in the magic of the moment—only to evaporate when sedate reflection comes crashing in again. . . .
If we are really testing sincerity, some of these cases could be determined with truth serum or a lie detector test. But who would take any of that as a “justification” for releasing people from the obligation to obey any law we regarded as defensible . . . ?
Missing in these paragraphs is any consideration of the second half of RFRA: a compelling government interest being pursued by the least restrictive means. Preventing human sacrifice and ensuring the physical health of legal minors are certainly compelling government interests, and protecting everyone from such assaults seems to be the least restrictive way of serving those interests.
Arkes might think that the content of the beliefs makes all the difference. After all, true religious beliefs would never require anyone to act in a way that violated the demands of justice or the common good. But even if it’s never socially harmful to protect true beliefs, we can’t infer that a false belief is neverworth protecting. Sometimes it is. It’s not disqualified by being false, because even acting on a sincerely held false belief can realize the good of religion. Sometimes, we can manage to respect that good while still securing the overall common good. When we can do this, we should. That was the lesson of Vatican II and RFRA.
Yet even true religious beliefs may be thought to be at odds with justice and the common good. After all, we aren’t governed by philosopher-kings with perfect clarity about moral truth. In the real world, government officials make mistakes. Indeed, at issue in the Hobby Lobby case were true beliefs about the morality of killing unborn life. Yet officials in the Obama administration (by issuing the HHS mandate) and various federal judges (by siding against the plaintiffs) concluded that these beliefs were at odds with the demands of the common good.
The Language of “Beliefs”
...
II. The Foundation and Scope of the Religious Liberty Right
...
III. Concluding Thoughts on the Right to Do Wrong vs. the Right toBe Wrong
..............
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