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 are we to take away from these essential reflections on the nature and requirements of religious freedom?
First, human beings are by nature truth-seekers and truth-responders. If we are to live fully integrated lives, making our relationship to the truth a central part of our being and character, then we must respond to the truth as we understand it, and order our lives around it.
Second, thanks to the fallible character of our minds, we grasp the truth in common with some of our fellows and differently from others. But it does not follow from our conviction of the truth, shared with others, that we who agree acquire a right to compel others who disagree. Persuade yes, compel no.
Third, religious communities form an essential element in the civil societies formed by men. They are as natural and as organic as families. Their integrity and freedom come near to being as important as that of the individuals of which they are composed.
Fourth, the power of government, necessary as it is to maintaining a shared moral order, is the creature and not the creator of men’s rights, and the servant, not the master of our private relations in our families and religious communities. It has no jurisdiction over belief; it cannot properly legislate or adjudicate questions of religious duty or the validity of requirements of conscience. This is not to say that the government may never inquire into whether a claim of religious conviction is sincere. Nor must the state yield entirely to every sincerely presented claim. In the words of Dignitatis, the “objective moral order” that calls for “good order and . . . true justice” will trump claims that threaten the public peace or the rights of others.
But—fifth—short of such cases, the state should respect, honor, and even foster the role of religious communities and institutions as essential contributors to civil society. In crucial respects they are expressions of something still more basic to the flourishing of the human personality than is the political order itself.
The modern secular state errs in viewing religious communities as subordinate—whether as handmaidens of government, rivals for people’s allegiance, or as mere interest groups in elections and public policy debates. Subordination of the religious to the political tends to sever, in the minds of policymakers and judges, the link between individuals and the various expressions of religious community that enrich their understanding of the truth, animate their peaceful encounters with their fellow citizens who have different understandings, and inform the reasonable basis of our objective moral order.
We can see many of these problems in the HHS contraception mandate. In its administrative rulemaking, the Obama administration presumes to define what forms of religious community are religious enough to merit the state’s definition of “religious employer,” and thus to qualify as a genuine claimant of an institutional conscience. Even its promised “accommodation” would treat religious colleges, hospitals, and charitable ministries as second-class religious institutions. Genuine religion, it seems to say, is mere sabbath-keeping by individuals who attend the church of their choosing. And a family like the Newlands, insofar as it is engaged in a business, is utterly subject to the plenary power of the state. The creative gift of the Newland family—their business enterprise—does not fully belong to them, to be governed by their conscience. Their entrepreneurship must be severed from their faith, as though they can be Catholics only in church on Sunday. And the Obama Justice Department has the nerve to argue that the Newlands are “imposing their religion” on their employees!
Here we see one of the characteristic moves of the modern secular state: the effort to push the vital institutions of civil society aside—in this case, its religious communities and the unique role they play in the lives of citizens. Richard John Neuhaus understood this nearly 30 years ago in The Naked Public Square: “Once religion is reduced to nothing more than privatized conscience, the public square has only two actors in it—the state and the individual.” And he added that “a perverse notion of the disestablishment of religion leads to the establishment of the state as church.”
At one of this summer’s national political conventions, we heard the startling statement that “government is the only thing we all belong to.” In that understanding, the civil society and the communities to which government is responsible are left out. As a crotchety old Hollywood actor observed at the other convention, “We own this country . . . politicians are employees of ours.” He did not have religious freedom in mind, so far as I can tell. But his principle is sound for our purposes. Individuals of faith, joined in communities of faith, forming a civil society imbued with the many faiths of those many communities, own this country. The state’s authority comes from us, and its power—the power of our elected employees—cannot be greater than what we can rightfully give it. We cannot give the state power over the conscience of men and women, because we do not ourselves have any right to come between God and our fellow citizens. The sooner our elected employees remember these foundational truths, the sooner we may begin to recover a healthy notion of religious freedom.