Against “Religious Liberty”

The Inescapability of Public Religion

Editor’s Note: The following is a lightly edited version of Bradford Littlejohn’s (Davenant Institute) opening argument in the Davenant Debate on Religious Liberty and the Common Good presented at Colorado Christan University on November 18th, 2022. We will publish Jonathan Leeman’s (9Marks) contribution to the debate tomorrow.

Introduction

When I told people that I was preparing for this debate on religious liberty, the most common response was, “Wait, which of you is arguing against religious liberty?” In modern America, saying you’re against religious liberty is a bit like saying you’re against kittens. 

Now, I love kittens in fact, but just because I’m in favor of kittens doesn’t mean that I don’t think there’s something amiss in a culture where people refer to their cats as their “children.” And just because I am unabashedly pro-kitten, that does not mean I cannot support reasonable restrictions on kitten rights for the sake of the common good. I am glad to see, for instance, that none of you have brought kittens to this debate. If you had, we might have had to ask you to leave them outside. Finally, I refuse to hold my ancestors in contempt just because they did not value kittens as highly as we do.

At this point I will leave the kitten metaphor behind, lest it should become strained to the breaking point. But, tongue-in-cheek though it is, it does gesture in the direction of three main points I want to make tonight. I have three main concerns about religious liberty discourse:

1. In contemporary usage, it has left the door wide open to relativism and anarchy. The more we invest in it without interrogating it, the more we will undermine our own cause as Christians committed to the conservation of our society and human nature.
2. A one-sided emphasis on religious liberty—at least as currently conceived—blinds us to the inescapably moral and religious character of government, and the proper God-given task of the government to promote right religion.
3. By valorizing expansive religious liberty rights as self-evident universal human rights, we encourage the very chronological snobbery that is destroying the foundations of the church and our civilization. We will not be able to resist thinking of our ancestors as benighted bigots who persecuted people for kicks. The myth of American exceptionalism plays in here, as we have often told ourselves the tale that our forefathers came to this country fleeing religious persecution in Europe and set up a new nation dedicated to liberty for the first time in history. The truth, of course, is much more complicated, and although I cannot elaborate on this history here, the mere fact that it is more complicated suffices to rebuke our casual haughtiness towards past ages. 

In what follows I will focus on elaborating the first two points and then offer a brief positive exposition of the historic magisterial Protestant view of the relation between politics and religion.

Avoiding the Relativism of Religious Liberty Run Amok

My first main point then is that unless properly defined, “religious liberty” opens the door to relativism and anarchy. Consider the case of Guy Fawkes, whom our British cousins commemorate every fifth of November with a bonfire and fireworks, celebrating his failure to carry out his deeply-held religious conviction: a determination to blow up Parliament, the King, and all the lords and notables of England in one fell swoop. Such religious terrorism, of course, is hardly out-of-date; the 9/11 bombers were similarly motivated by deep religious commitment. Why should they not have liberty to follow through on it? 

People will quickly object, “Well sure, but there’s never a religious right to harm others.” Oh sure, that’ll solve the problem. What about spanking then? Should Christian believers who consider corporal punishment to be part of God’s prescription for parenting be permitted to spank? Or should they be restrained on grounds that they are harming their children? What about “conversion therapy” for gays and lesbians? In some countries, this has already been banned on grounds of harm. What about simply preaching the Bible’s unpopular truths about homosexuality? Won’t this inflict incalculable psychological harms, and maybe lead to suicide? Countries like Canada and Australia have already begun to infringe such baseline religious liberty on the grounds—to them eminently plausible—that it inflicts harm on others. 

Ultimately, at stake in such debates are disagreements about what is actually harmful in the final analysis. There is no religiously neutral ground for making these determinations. 

On the other end of the spectrum, consider the case, discussed by John Perry in his excellent 2007 study of religious liberty, Pretenses of Loyalty, of the man who appeared in court in a chicken suit, and insisted to the judge that he did so out of religious conviction. People will quickly object, “Yeah, but he just made that up.” So? Says who? How do you know what is and isn’t a sincere religious conviction? Does a religious conviction have to be widely held to be considered genuine? 

In any case, even if it is genuinely held, can it be automatically accommodated? In between these extremes of the terrifying and the ridiculous lie all kinds of concrete religious liberty issues that have troubled judges over the centuries. John Locke was well aware of this problem, warning of the danger that citizens would evade legitimate civil obligations out of “pretenses of loyalty” to divine authority (thus the title of Perry’s book). In his own time, Quakers were a prominent example, refusing to take oaths that were prerequisites to serving on juries or to holding civil office, and refusing to serve in the military. The question of military service has been a particular sticking point for religious liberty objections over the past few centuries, since it does indeed represent a deeply-held conviction for some, but it is also easily abused—if we allowed everyone claiming to be a pacifist to evade the draft, wouldn’t every draft-dodger claim such protections? Then there are those willing to serve in the military whose religious convictions conflict with various standard obligations, such as Sikhs’ insistence on wearing beards or those requesting exemptions from certain vaccination requirements.

Do we accommodate such requests? Maybe, maybe not. Our jurisprudence has evolved a number of rules to try and answer these questions, based on some of the criteria noted above: how great a harm might be inflicted? How widely held or historically attested is this conscience demand? etc. But the point is that it is a matter of prudence. Claims of religious liberty are not automatic trump cards or blank checks; they may or may not be accommodated, but it will take some hard work and hard decisions about what the common good demands. Living in society simply means accepting constraints on the ability to live out our religious convictions—at least, unless we are fortunate enough to be the majority religious group in a society. If you are a worshiper of Ishtar and think that she should be honored with temple prostitution, you can be free to believe that, but sorry, you can’t practice that.

This becomes more urgent to the extent that we blur the lines between “religion” and “conscience,” as we increasingly have in the modern West. If religious freedom simply means the liberty to live out and act on any deeply-felt beliefs about the meaning of life and the universe, why shouldn’t women have the religious liberty to have abortions? Surely the modern feminist belief in the sacred autonomy of the body and the unchained will has a religious flavor to it, and abortion has come to be celebrated as a virtual sacrament of this new cult of self-creation. Should this religious liberty be accommodated?

Tolerating False Religion, Promoting Right Religion

My point here is not merely that every right may be subject to reasonable restrictions for life in society to be possible—though that is a key point. 

My point is that no regime of religious liberty exists within a religious vacuum. It is only within a given religious framework (explicit or implicit) that we can actually make judgments about what religious exercise should be permitted. Religious liberty law in the US has historically accommodated Jews and Muslims and Hindus by treating their synagogues and temples like “churches,” and construing their practices and beliefs within the same mold as Protestant Christianity.

Notice then that I just said “permitted”—signaling that I am talking not about “religious liberty” as a positive good, but “religious toleration” as a concession. The word “toleration” has fallen on hard times lately because it implies judgment and disapproval. You bet it does. If we are to be capable of making any judgments at all—something integral to our nature as rational beings—this must include judgments against some things. And when we judge something to be wrong or evil, we must either resist it or tolerate it; we can hardly be expected to affirm it.

From a Christian standpoint, then, religious liberty for unbelievers can never be anything more than toleration. How could it be? As a Bible-believing Christian, I believe that my Mormon or Hindu neighbor is not merely dishonoring God, but harming himself, his family, and by extension the whole community. After all, if the Christian God is the truth of reality, then any unbeliever is not merely involved in some private intellectual error, but is living at odds with reality.

There can be, in short, no moral right to do wrong. There might be a legal right, but if so it will be for one of two reasons. Either a) the government simply does not have the competence to restrain the evil, or, (b) it could be possible to restrain in principle, but such that in practice, attempting to restrain it, it will in fact do more harm than good.

The former constraint certainly applies to matters of false belief—government cannot in fact make windows into men’s souls, and should not try. But as soon as someone tries to act on a false belief (e.g., performing an act of child sacrifice), then obviously government can get involved. 

But will such enforced orthodoxy do more harm than good? Well the answer, obviously, is “It depends.” In the case of restraining child sacrifice? I think we will all agree that No, getting involved in restraining such an act will not do more harm than good—it will prevent a monstrous harm. What about in the case of restraining blasphemy (as indeed most US states did for most of their history)? Well maybe, maybe not. We might well think that under present conditions, there is no way to prevent this grievous public harm effectively by civil law. But if so, this will be a prudential, not a principled judgment. And just because it might be prudent now doesn’t mean it can’t have been prudent in the past; circumstances and societies change. In principle, then, government certainly can act to restrain the promulgation of falsehood, open idolatry, or violations of the natural law masquerading as religious exercise.

Some will surely object, “But what gives the government that power? Might be nice while you’re in the majority, but what if you’re in a minority?” “What about Muslim countries? Do you want them to have the power to suppress what they see as false religion?” This is probably the objection I most frequently encounter, but it seems to me to be all show and no substance. One might just as well ask, “Why give policemen guns? They might use them to shoot innocent people.” I suppose there are people who make such outlandish claims these days—the “defund the police” movement—but most of us think this is ridiculous. Similarly we might ask, “Why give teachers the authority to tell their students what’s true and what’s false? They might abuse that power.” But the old maxim applies to all these cases: abusus non tollit usum. If a power is in fact legitimate, the mere possibility of its abuse cannot render it illegitimate. To be sure, we may recognize the wisdom of limiting such dangerous powers to reduce the possibility of abuse, and debate how well-armed our police force should be or what controversial doctrines teachers may address in the classroom. But we cannot deprive them of all power that might be abused without nullifying their office. 

The same is true with law and religion. Law is a communicative act, and it necessarily communicates truth-claims. These claims may be true or false, but the mere danger that law might adopt falsehoods in place of truths can never be a justification for denying law the authority to communicate truth.

The Magisterial Protestant View in Seven Propositions

So what does an authentically, historically Protestant understanding of the common good look like? It’s quite simple really, and I’ll lay it out in seven quick propositions:

1. It is the task of government to punish evil and praise/reward good, as pithily stated in both Romans 13 and 1 Peter 2.
2. We know what good and evil look like from the natural law, as it is restated and clarified by Scripture. The Decalogue used to be pretty much universally regarded by Catholic and Protestant commentators alike as a shorthand summary of the natural law.
3. Putting these first two propositions together, then, we can say that the task of government is to enforce justice as summed up in the Decalogue—and this includes both the first and second tables: Commandments 1-4 and Commandments 5-10.
4. At this point, however, we must make a classical Protestant two-kingdoms distinction: government has jurisdiction only over the external temporal sphere, not over matters of the heart, which are God’s business. Government, it is quite true, cannot make people Christians. The fool may indeed say in his heart that there is no God, and who can stop him? But if the fool starts running around in the streets yelling that there is no God, that’s another matter. Then he is striking at the foundations of society, acting within the temporal sphere over which government does have jurisdiction.
5. However, just because government can punish something doesn’t mean it should. The debate over the “war on drugs” is a good example. Critics on both ends of the political spectrum have worried that the effort to criminalize certain harmful or addictive drugs simply drives drug trafficking into a harder-to-control black market. When it comes to the legalization of marijuana, for instance, some have argued that the substance is harmless; others have admitted it to be harmful but not counterproductive to regulate. The same principle applies to religious practice: if we find as a matter of practical politics that trying to stop some false religion does more harm than good, then of course we should tolerate it. However, this will be a prudential judgment based on circumstances. 
6. In making that judgment, though, we should not forget that law has a pedagogical function, teaching us what to regard as good. Therefore, even if a law cannot effectively restrain some evil by force, it may nonetheless turn out to limit the spread of that evil by its mere moral authority. The legalization of marijuana is again a good example; many states have found that demand for the substance increased dramatically as soon as the law tacitly affirmed that it was fine and good; it turned out that in fact that even where enforcement was lax, merely having a ban on the books helped shape public behavior. 
7. Finally, it is crucial to remember that government can promote as well as restrain. If the idea of prosecuting Mormons or Muslims gives you the heebie-jeebies, what about simply publicly promoting Christianity? This used to be completely standard Western practice, and was indeed the basis of the American religious settlement: many denominations were allowed to flourish, very few religious practices were actively restrained, but public institutions recognized, affirmed, and celebrated the good of the Christian religion. Then at some point we imbibed the liberal idea that affirming one truth is identical to persecuting everyone who disagrees. It is not. Indeed, I would say not only that publicly affirming some orthodoxy is not the same as persecution; it is in fact unavoidable. And if we are not going to proclaim God in our laws and institutions, we shouldn’t be surprised when our adversaries proclaim Dionysius there instead.

Conclusion

Ultimately, then, that is what this is all about. Many will wonder what the point is of arguing for public Christian orthodoxy in a society that’s never going to go for it. Many things might be said in answer to this objection, but for now, let me attempt an Aristotelian answer: every art aims at some end. 

If we do not know the end of politics, if we do not know what politics is ultimately for, then naturally, we will be incompetent at it. This, I would submit, is part of why Christians in America today are so incompetent at politics.

The aim of politics is living well together. To live well, we must pursue virtue, and to pursue virtue, we must have a concept of the highest good. Every society therefore will punish blasphemy against the highest good. A century ago, we punished people for publicly mocking an infinite Creator God. Today, we punish people for publicly mocking the idea of an infinite, self-creating man—a man able to turn himself into a woman.

The Left understands the end of politics. This is why they excel at playing the long game—the current state-imposed transgender insanity has been decades in the making. Conservative Christians, however, got it in their heads for decades that politics was about property rights and school vouchers; and now that we have wholly lost the public sphere, we frantically hide behind the protective sheet of ‘religious liberty,’ now reconceived as a sphere of private self-expression, not realizing that this protective sheet turns out to be a white flag.

Photo credit: Unsplash

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