Religious Liberty, Religious License
When Freedoms Collide
Much ink has been spilled extolling the glory of religious liberty, much less in expounding its nature and meaning. Brad Littlejohn’s recent article, “Honoring God As A Nation?” is thus a welcome invitation for us to rethink the religious liberty bromides we have accepted uncritically. His article ends by noting that early American statesmen were more clear-eyed about both the duties of the magistrate regarding religion and the distinctions needed to make laws that encourage “right worship without coercing it.” This article picks up the conversation where Littlejohn’s left off, helping recover a right understanding of the relationship between liberty and religion in civil law with an example from early American history.
Americans especially have a hard time discerning the fine distinctions involved in religious liberty because of how exuberant we get over the very idea of liberty. We act this way about freedom in general, of course, and the rest of the world both loves and loathes us for it. Does a right definition of freedom even matter, one that distinguishes it from license? Sadly, this essential distinction is almost entirely absent in American rhetoric today.
Admittedly, this kind of exuberance that exceeds exactness regarding religious liberty in America goes back as far as colonial times. There is something instructive in the story of various groups of dissenting Puritans fleeing what they considered religious persecution in England to set up colonies in New England and laying down rigid laws that curtailed the religious liberties of dissenters within their own ranks.
The difficulty in maintaining the tension between a commitment to laws that encourage religious piety and a commitment to respect religious freedom is demonstrated in the swiftness with which most states disestablished their state churches and the slowness with which states dropped religious tests for holding state offices. Massachusetts was the last state to drop state-support for its church in 1833, and it was not until 1961, in Torasco v. Watkins, that the Supreme Court, through incorporation (the principle of reading the federal Constitution’s Bill of Rights into the state constitutions) determined religious tests to be unconstitutional, leaving eight states with now moot religious tests in their constitutions.
Of course, as Alexis de Tocqueville noted, this jejune but dynamic dichotomy between religion and liberty is part of the peculiar spirit of America. As I have argued elsewhere, though, we seem to have lost the proper sense of the dynamic connection between these two things. Relegating religion wholly to the private sphere, we hold only to a vacuous sense of liberty in the public sphere. This phenomenon explains how someone like David French can be a signatory to the Nashville Statement on biblical marriage and sexuality and yet hail drag-queen story hour at public libraries as one of the Constitution’s promised “blessings of liberty.” Such a dichotomized posture toward moral order can lead us to remain assured of the religious basis for individual morality while lacking all confidence to discern the moral distinction between liberty and license in the public realm.
One need not wonder how a muddled view of liberty in general easily produces a befuddled view of religious liberty in particular. When there is no consensus about the public expression of religious liberty, the only consensus possible is that religion should remain in the private realm.
And so we have witnessed the gradual excision of Christianity from polite society in American public culture over the last two decades. Vice President Mike Pence’s unapologetic evangelicalism–and the vitriolic response it elicited during the Trump administration from all the important people–is a rule-proving exception. It seems that if you lose the ability to provide a public defense for your religious and ethical way of life while accepting all competing views as morally and legally equal, then soon you will be relegated to public irrelevance.
Historian Wilfred McClay relates an illuminating example of a similar situation from American history. Even before 1776, the Quakers–those great defenders of unqualified religious liberty—gradually lost all cultural influence in Philadelphia, their own capital, “a victim of [their] own policies of toleration.”[1] If a people adopt the policy that all things are lawful in the public square–even drag-queen story hour–but have no categories by which to enforce with confidence the distinction between things that are advantageous and things that are not (1 Cor 6:12), they will lose their influence and be replaced by others who do have such categories and confidence.
As happened with the Quakers, American Protestant Christians are far down the path to the irrelevance and obscurity that their shallow thinking regarding religious liberty is leading them. We must, then, regain a robust understanding of the nature of religious liberty. One way to do so is by examining the other side of the coin of all rights, namely duties.
The question of the nature of religious liberty is of perennial interest. This is so because it embraces the highest of human ends–the duty one owes to the Creator. Religious liberty, though, is also a political issue for two reasons.
First, when a political community fulfills this duty collectively by ordering their laws in accord with what they believe to be God’s divine and natural order, they exercise the corporate right to religious liberty, understood as the right to exercise their religion freely and publicly. Second, when a political community allows an individual whose conscience leads him to act contrary to the corporate judgment to be exempt in certain ways from the general law, he enjoys the individual right to religious liberty, granted as a prudential exception and an extension of that political community’s own enjoyment of liberty in general.
While it is true that the right of conscience—the right to believe whatever your understanding is persuaded of—is in its nature wholly inalienable, the right to religious exercise—or acting in accord with one’s beliefs—is, like all natural rights, given up only as much as is necessary in order to secure other vital liberties. In both respects, then, corporately and individually, religious liberty is political.
Political, though, does not mean relative, or whatever a ruler or community happens to will, for certain ends conducive to the common good are permanently fixed. The aim “of every political constitution,” as James Madison wrote, “is or ought to be first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue the common good of society.”[2] Politics is inherently moral.
Religious liberty is rightly exercised for the common good with reference to two different duties: a primary duty owed to God and a secondary duty owed to one’s political community. Because of man’s imperfection and because of necessity, these two duties may at times appear to conflict. A tension thus arises that must be resolved through wise and virtuous statesmanship.
President George Washington’s response to certain pacifist Quakers who requested religious exemption from serving in the early American military serves as an illustrative example. These Quakers claimed they were “bound in Conscience to lead quiet and peaceable Lives in Godliness and Honesty amongst Men” and could therefore “take no part in carrying on War on any Occasion.” They wanted Washington to affirm the principle that any belief genuinely held as a conviction before God must be tolerated absolutely by the political community.
Washington answered first by affirming that “the liberty enjoyed by the People of these States, of worshipping Almighty God agreeable to their Consciences, is not only among the choicest of their Blessings, but also of their Rights.” He here acknowledged the wholly unalienable right to liberty of conscience in matters of personal religious beliefs.
Washington did not, however, accept their absolutizing principle. He discerned the distinction between the right to conscience and the right to free exercise. “While men perform their social Duties faithfully,” he continued, “they do all that Society or the State can with propriety demand or expect; and remain responsible only to their Maker for the Religion or modes of faith which they may prefer or profess.”
“The Conscientious scruples of all men,” Washington concluded, “should be treated with great delicacy & tenderness, and it is my wish and desire that the Laws may always be as extensively accommodated to them, as a due regard to the Protection and essential Interests of the Nation may Justify, and permit.”[3] Exemption from military service was, to Washington, beyond the limits of toleration that society could afford to extend even to sincerely believing pacifists.
There is an objective standard, in other words–which Washington refers to as propriety–by which society may rightly lay duties on individuals, even contrary to an individual’s particular conscience. Propriety constitutes limits to toleration, limits to religious liberty, and propriety is discovered with reference to duty.
Duty requires that rulers consider “the conscientious scruples” of men. Likewise duty requires that rulers consider “the Protection and essential Interests of the Nation.” In recognition of both, duty requires that rulers make equitable judgments to balance toleration with a determination to preserve the morally pedagogical character of the public square. Just as the Quakers’ conviction not to take up arms in defense of their country potentially put the whole country at risk, so too do behaviors that the political community finds obscene or corrosive to their moral ethic put at risk the very health of their society, not to mention undermining the pedagogical force of their laws. Just as wise and virtuous statesmen are duty bound to protect the country from external threats or invasion, so too are they duty bound to protect the moral quality of the laws from internal neglect or abuse.
A salutary consequence of the Protestant Reformation is the acknowledgement that a fully homogenous society is not to be hoped for within this vale of tears, and thus a degree of toleration is always prudent. Comprehension of the most proper degree of toleration, though, is a judgment requiring equity and foresight, which proceeds from wisdom and virtue. Further, in order to have as rulers men whose pious wisdom and prudent virtue may “refine and enlarge the public views” in a representative republic, the people themselves must already have refined and enlarged views at least sufficient to elect such rulers.[4]
Religious liberty, then, is secured by the people and their rulers exercising sufficient discernment and care both for the “essential Interests of the Nation” and for the “conscientious scruples” of individuals so far at least as society can afford to do so without undermining those very interests. Happily, in the United States, we have been able to extend toleration further than anywhere else in the world in all of human history.
There is a limit, however, to such toleration, and to go beyond that limit constitutes an egregious abdication of duty. The only way to know where the edge of that limit lies is to know what the duty to care for the common good of society requires.
To be sure, it is not always easy to determine what this duty requires, and this difficulty arises from the precarious nature of particular circumstances. Certain principles always remain as lodestars, though, if we will but look to them. In our day it is becoming all too obvious that we are neglecting many of these duties to our extreme detriment.
G.K. Chesterton once quipped that “we are fond of talking about ‘liberty'” for the very reason that it “is a dodge to avoid discussing what is good.” American Christians ought to beware of this temptation with regard to religious liberty, especially in light of their duty to be good citizens and good Christians.
[1] Wilfred McClay, Land of Hope: An Invitation to the Great American Story (New York: Encounter Books, 2019), 30.
[2] James Madison, “Federalist 57,” in The Federalist: The Gideon Edition, edited by George W. Carey and James McClellan (Indianapolis, IN: Liberty Fund, 2001), 295 (emphasis added).
[3] George Washington to the Society of Quakers, 13 October, 1789 (https://founders.archives.gov/documents/Washington/05-04-02-0188) accessed, 11/28/21 (emphasis added).
[4] Madison, “Federalist 10,” The Federalist, 46.
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