Religious Freedom Paradox

The only thing that will save the freedom of faith in America is the truth.

Earlier this month, an Indiana judge struck down the state’s post-Roe abortion ban on the grounds that it violated the “religious freedom” of certain faith traditions. The lawsuit, which was launched by a diverse coalition of Jews, Muslims, Unitarians and Satanists, contended that restrictions on abortion impeded their ability to live according to their religious beliefs. They claimed that their theological convictions are either ambivalent on the practice or even view it as a positive good. Interestingly, the law used to justify the plaintiffs’ case was none other than Mike Pence’s Religious Freedom Restoration Act, which prohibited state and local governments from “substantially burdening a person’s ability to exercise their religion.” 

The Indiana case highlights the paradox underlying the right-liberal lionization of religious freedom. On one hand, it is hailed as creating a morally neutral public square, preserving the rights of conservative Christians to live according to their beliefs. David French claims that religious liberty protections have created a society in which “people of all faiths and no faith at all have more freedom from government interference with their rights of conscience and their beliefs than any time in American history.” On the other hand, however, this idea inevitably collapses the truths of faith into a matter of mere personal conviction. As the case demonstrates, by presenting all moral consciences worthy of equal protection, the right-liberal notion of religious freedom cedes the cultural background in a way that ends up marginalizing normative Christian standards. The reality of the matter is far simpler: religious freedom is meaningless without religious truth. The latter cannot be subordinate to the former.

In order to understand why the right-liberal model of religious freedom as a question of mere convictions is philosophically untenable, it is illustrative to first explore the history of the term within American politics. The roots of the concept can be traced back to the works of Enlightenment philosopher Voltaire and later to the colonial settlements of 17th century America. After the Revolutionary War, the First Amendment expressly prohibited the government from making any law “prohibiting the free exercise” of religion.” The precise definition of “free exercise” remained nebulous at the time, but James Madison argued it entailed citizens being allowed to live “according to the dictates of conscience.” Inevitably, such a vague declaration caused many disputes to arise over time. How far should broad deference to personal conscience actually go? Could this exempt certain religious groups from laws entirely? The absence of an authoritative moral doctrine (one might call this a public religion) left very little structural clarity on how far society should extend the net of pluralistic tolerance and why. And so the courts took up the mantle themselves, constantly adding new qualifiers to the Founders’ initial conception of the idea in legal disputes over these very questions.

In Employment Division v. Smith (1990), for example, the court ruled against a Native Americans that argued that use of the drug Peyote ought not to be penalized because it was part of one of their religious rituals. In the decision, Justice Scalia qualified that “religious freedom” could be infringed upon if “prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision.” This built upon a similar decision in Prince v. Massachusetts (1944) that stated that "public morals” or a “compelling governmental interest” were also reasons why the Free Exercise clause may not apply to vaccine exemptions.

Here is the problem with this: if we look closer at these cases, it becomes clear that none of them were decided based on the conscience framework proposed by Madison. Rather, as the majority opinions implicitly concede, these cases were about the courts, and by extension society, rendering judgment on the morality of a given practice, based on objective reality. The courts decided that resistance to vaccines and drug use were significantly unjust and antithetical to “public morality” that the net of pluralism simply could not cover them. In other words, much to the chagrin of the conscience model, the courts acknowledged that some authoritative moral framework did indeed exist. 

A more recent case, that of Masterpiece Cakeshop v. Colorado (2018), highlights this principle further. In this dispute, the Supreme Court sided with a Christian baker who had refused to prepare a wedding cake for a same-sex “marriage.” On face, this might appear to be a vindication of the conscience model, but consider for an instant if the baker had refused service to an interracial wedding instead. It is extremely likely the Supreme Court would not have ruled that the latter action fell under his right to practice his religion. Indeed, the Supreme Court has found (rightly) that racial discrimination is not protected by the Free Exercise Clause in Bob Jones University v. United States (1983). So what is the difference between these cases? It clearly is not the individual’s level of sincerity, which may well be equal, but rather the court’s moral judgment that there is still some validity to objecting to homosexuality whereas there is none for racial discrimination. While these individual decisions may have been correct, history shows us that without a tethering to a concrete religious doctrine (such as Catholicism), the attitude of the court with respect to religious freedom is susceptible to rapid social change over time; Simply put, the conscience model only exists within the ever-shifting parameters that social attitudes allow it to. 

With this understanding, it becomes evident that religious freedom is entirely subordinate to the present public conception of morality. This, of course, carries several implications for the conservative movement. It explains first and foremost why the incessant focus on religious liberty legislation has totally failed to stem the tide of progressive ideology. By forgoing the assertion of religion in the public square in favor of simple arguments from personal conscience, conservatives not only collapse their beliefs into simply one equal choice amongst many but actively enable widespread secularization. Secularism, and by extension progressivism, are then used to marginalize Christian standards and ironically spur the challenges to Christian free exercise we see today. Unfettered religious freedom eats itself. In cases like Indiana’s abortion ban, the false premise of moral neutrality is even used to empower the heinous, disordered “consciences” of pro-abortion liberals.

So what would a better approach look like? Conservatives can begin by acknowledging that the only reason Christians more or less still have their spaces is because the justice system still sees a vestigial validity to their beliefs. However, as society and its institutions grow increasingly secular, the dam will not hold for long. In order to reverse this trend, postliberals must move past pseudo-pluralist legislation like Indiana’s Religious Freedom Restoration Act and instead unapologetically assert the truths of the Catholic faith in the public square. Rather than allowing the courts to concoct a public morality based on ever-shifting societal mores, we should be willing to commit to Catholicism as a cohesive moral framework for law and governance. The state should use authoritative and economic power to advance conservative ideals such as family formation, piety, and temperance. Education should not only push back on the heresies of the LGBT left but actively promote a vision of humanity consistent with Catholic truth. 

Those who hold different religious beliefs and disagree should be judged under a framework of tolerance rather than freedom. The distinction is subtle but important, as it provides due charity to those in different stages of their faith journey, while recognizing that not all moral convictions merit equal consideration. In this world, non-Christians would maintain the ability to participate in the spiritual traditions of their faith or choose not to believe in God altogether; after all, belief in the one true Church cannot and should not be compelled. However, their ability to act upon their beliefs would be properly considered in the context of Catholic teaching and whether the tolerance of their alternate convictions would significantly undermine the common good. Rather than subject to an ever-changing spirit of the age, this system would properly order our rights to the timeless virtue of Catholic tradition.

It will be when we do this that we secure the continuity of religious liberty for future generations. Interestingly enough, the only thing that will save the freedom of faith in America is the truth.