The following is adapted from a lecture delivered at Hillsdale College on September 11, 2012, during a conference on “The Supreme Court: History and Current Controversies.”
What is the cause of these pressures on freedom of religion and conscience? And how can we respond in the spirit of a renewed commitment to principles of religious liberty?
In truth and charity, we must give those responsible for the policies I’ve described the benefit of the doubt, as acting on some vision of the good. Those in charge of our universities, our state and local governments, our courts, and the Obama administration, seem to be animated by a desire to serve the goal of women’s health as they understand it, or to advance a certain view of freedom or equality. They think of electoral and legislative victories as vindicating the rightness of their views. And they often see the push-back that results as a failure to understand something obviously just. Hence the Obama administration’s rhetoric about a “war on women” expresses a real opinion on the part of the president and his supporters that the equal position and basic health of women in American society are served by a mandate that burdens all but the smallest employers and the most narrowly defined institutions of worship with the legal obligation to provide free contraceptives, abortifacient drugs, and sterilization services.
But while they may seek a certain good as they understand it, they fail to grasp the perspective of the religious dissent their policies generate. There is a blundering impatience on the part of the secular state, and the secular elites in charge of it, whenever countervailing claims are made in the name of religious conscience, the integrity of religious institutions, or the foundational character of religious communities as part of American civil society. And there is a characteristic failure to perceive the legitimate contribution of religion to public discourse.
Thus our predicament drives us back to first things—to the necessity of thinking through, from the beginning, the ground of religious freedom as an individual right; the relation of the individual believer to his fellows in a naturally formed community; and the way in which these individuals and their organic relationships of family, church, and other spontaneous expressions of civil society, are responsible for creating the state by their mutual consent.
I have twin touchstones for the reflections that follow: the “Memorial and Remonstrance Against Religious Assessments,” which was addressed by James Madison to the Virginia General Assembly in 1785 and helped defeat a bill to spend tax dollars on the support of clergy; and Dignitatis Humanae, the “Declaration on Religious Freedom” of the Second Vatican Council in 1965. These two brief documents, written under such different circumstances 180 years apart, are not, of course, in perfect accord on every point. But they have something in common in the way they ground religious freedom in axiomatic reflections on the human condition, in the priority they place on religious obligations as making a higher claim on our attention than political obligations, and in the way they elaborate the limits of political authority.
Both Madison and the authors of Dignitatis Humanae begin with reflections on the individual human person and his relationship to God. Religious belief and devotion are not anthropological curiosities or historical relics, but are basic to the human experience—natural to us in the exercise of our most human faculties, those of the mind. And religious belief impresses itself directly on the mind in such a way that we can speak of it as not altogether voluntary—not a matter of willing choice, but of compulsion in light of the evidence that both reason and revelation place before us. Thus Madison speaks of religious conscience as an “unalienable right”—the same expression used for our most basic natural rights in the Declaration of Independence—“because the opinions of men, depending only on the evidence contemplated by their own minds[,] cannot follow the dictates of other men.” Likewise, Dignitatis Humanae, which grounds religious freedom in “the very dignity of the human person”: “The truth cannot impose itself except by virtue of its own truth, as it makes its entrance into the mind at once quietly and with power.”
The right of conscience, then, is a right not to be compelled to speak or act as though what one knows to be true is actually false. For one has a duty to truth, and no higher duty than to the truth about the highest thing. As Madison goes on to say,
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 in degree of obligation, to the claims of Civil Society. (emphasis added)
Similarly, Dignitatis describes religious freedom as something “men demand as necessary to fulfill their duty to worship God,” and this worship is the means by which we “may come to God, the end and purpose of life.” This puts before us as our end what Madison places before us as our beginning: Our freedom to fulfill our duty to God must be untrammeled because that duty is both first and last for us, the alpha and the omega. Fleshing out this common teaching, Dignitatis continues: “the exercise of religion, of its very nature, consists above all else in those internal, voluntary, and free acts whereby man sets the course of his life directly toward God. No merely human power can either command or prohibit acts of this kind.” As Madison puts it, “Religion is wholly exempt from [the] cognizance” of political authority.
Perhaps not surprisingly, Dignitatis had more than Madison to say about the fact that individuals do not practice their religion as a solitary act, but together with one another. Dignitatis refers to the “social nature of man,” and the natural consequence that “he should profess his religion in community.” It follows that the “immunity from coercion in matters religious” that men enjoy as individuals is “also to be recognized as their right when they act in community.” The vitality of faith comes in its communal character, in the individual’s fellowship with others whose views support, inform, and refine his own. Dignitatis treats at length the freedom of religious communities to meet and to organize, to teach and to witness to their faith, to control their own internal affairs, to undertake “educational, cultural, charitable and social” efforts as they see fit. This receives less attention from the more individualistic Madison, yet he implicitly agrees, assuming the existence of what he later called a “multiplicity of sects” and insisting on a politics of equal freedom for all religious communities, with the state “neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.”
Madison’s “Memorial”—again, not surprisingly—contains more of a political science than Dignitatis. It carries us back to the principles of the Declaration of Independence, which move from our natural equality as created beings, to our possession of rights inextricably bound up with our nature and bestowed on us by the Creator, to the purpose and foundation of government, made by us to serve rather than frustrate our natural equality and liberty. Madison carefully employs the phrase “Civil Society” to identify the whole community—the community of communities, made up of families, churches, and all sorts of organic human relations—that is responsible for authorizing and limiting political authority. Civil society is the earthly sovereign, the supreme temporal power that delegates the powers of government. But even this is only the earthly sovereign. Over all there remains the “Universal Sovereign” to whom all must answer: “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” For this reason, Madison says, religion is “exempt from the authority of the Society at large.” Much more so must it be exempt from the political authority of the government society creates.
The priority of individual rights and of the claims of organic communities also permeates Dignitatis, which describes the “common welfare of society” as consisting “chiefly . . . in the protection of the rights, and in the performance of the duties, of the human person.” Those duties are experienced and expressed in “religious communities,” so it is “imperative that the right of all citizens and religious communities to religious freedom should be recognized and made effective in practice.”