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Appeal to the truth is crucial in defending both religious freedom and the rights of a religiously based conscience. This was the most salient argument advanced at a conference on “Truth, Conscience, and Religious Freedom” hosted by Franciscan University in Steubenville, Ohio on April 4-5. Presentations and discussion focused on the philosophy of religious freedom in light of the Christian commitment to revealed truth, and then on responding to the ongoing secularist offensive against religious liberty.
The preeminent concern of Christians always is to live in obedience to God; at the present time the legal right to live in obedience to His commands is justified to the secular world in terms of a general doctrine of religious freedom that everyone has. A philosophical defense of religious freedom as it was received in the Western world until recently was delivered by Dr. Robert George of Princeton University, co-author of the Manhattan Declaration, in a presentation on “The Nature and Basis of Religious Freedom.” He said that the starting point of all ethical reflection is the “fundamental, irreducible aspects … of human flourishing.” Basic human goods are the first principle of what is called practical reason. Human good is integral to human flourishing. This provides us with a doctrine of human rights, and unjust laws are then a violation of human rights. George said that contrary to liberal legal theorist John Rawls, good is prior to right. The content of human rights is shaped by the human good. Religion is one of several human goods. Religion George defined as being in right relation to the divine. The concern for “first things,” or matters of ultimate truth and morality, is thus part of the human good. Respect for the human good of religion mandates religious freedom. There is a right to search for truth and live in line with it. Consistent with the religious freedom doctrine of Vatican II, George noted that not religious error (false religion and heresy), but persons have rights. This doctrine of religious freedom recognizes an area of agreement with non-Christian religions through recognition of the good of religion. The further one gets from true religion, however, the less human fulfillment there is. George said there are limits to religious freedom, but human authority must meet a heavy burden in limiting it. This was recognized by the Religious Freedom Restoration Act of 1993 (RFRA), which had the support of both the Left and the Right when it was passed. The Left now practically opposes it, chiefly because of the homosexual agenda to deny liberty of conscience against legal requirements to accommodate homosexuality.
A questioner asked if RFRA had been repealed by Obamacare, since the Affordable Care Act (ACA) is a later act passed by Congress. This was answered by saying that RFRA cannot be repealed by the implication of later federal laws, since it governs future laws unless its provisions are specifically repealed in a new law. Although not constitutional law, it falls into a category of laws that govern future laws simply by the way they are worded (i.e., they specifically say that their provisions govern future law).
The specifically American doctrine of religious freedom, coming from the founders of the American republic, was discussed in a presentation by Dr. Vincent Philip Munoz of the University of Notre Dame. He said that the Supreme Court has repeatedly turned to Thomas Jefferson in its interpretation of the First Amendment. Jefferson has provided the court with “originalist” exegesis of the Constitution’s religious freedom doctrine. Originalism is the only constitutional philosophy that respects the Constitution and the rule of law, Munoz noted. Originalists can’t answer the question of whether the Constitution is good, but can attempt to say what its original meaning was and what its application in contemporary times would entail.
Jefferson thought he had discovered the truth about religious freedom. The idea of natural rights is explicitly involved in the Virginia Statute for Religious Freedom, which Jefferson authored and which was adopted in 1786 by the Virginia General Assembly. Jefferson said that its adoption was the “severest contest in which I have ever been engaged.” It was a response to Patrick Henry’s bill to provide state support to clergy. A key idea in the Virginia Statute was John Locke’s idea that force cannot change belief. In Locke’s doctrine, also held by the founders of the American republic, the human mind’s freedom supposes that the mind is “radically determined.” We cannot help but believe what reason and the evidence presents to our minds. It is from this, and not from specific divine revelation and the enablement of divine grace, that the human mind is held to be free. Jefferson’s theology, which his doctrine of religious freedom seeks to accommodate, comes from this epistemology. The persecution of religion is irrational. Political leaders are the uninspired authorities who act impiously by not following God’s example of persuading by reason alone. Men lack sovereignty over opinions. Beliefs lie outside the realm of government, actions lie within it. Munoz identified the Virginia Statute’s legal maxims as: 1) No one should be compelled to worship; 2) No one should be compelled to support a religious establishment; 3) No one should be punished on account of opinions; 4) Men should be free to profess the religion of their conviction; and 5) Individuals’ civil capacities should not be diminished because of their opinions.
All governments must fund some opinions, however, and thus must fund opinions to which there is (at least potentially) some disagreement. Jefferson’s philosophical arguments do not support his principles of religious liberty, Munoz maintained. He held that only points three (no penalty for opinions), and five (no diminution of civil capacities because of opinions) actually follow from Jefferson’s philosophy. While allowing much broader religious liberty than was known in much of the past, Jefferson thought men would be guided by reason and science away from superstition. But this would happen by the religious liberty structure the founders inaugurated.
The founders’ doctrine of religious liberty is that it does not come from the government; instead it is a natural right. But Munoz noted that in contemporary society, rights based on positive law (enacted by human authority) are in fact overriding rights based on natural law. In response to a question about what “free exercise of religion” means, if in the founders’ philosophy (and according to contemporary secularists) religious freedom applies to belief and not to action, Munoz responded that penalties exacted on dissenting clergymen for their religious activities was principally what the founders wanted to eliminate in their concept of “free exercise.” Whether this would then extend to the religious duties of laymen is less than clear.
Prof. Gerard V. Bradley of Notre Dame Law School discussed problems in understanding religious liberty from an orthodox Christian position in his presentation, “The Culture of Religious Liberty.” The presentation focused in particular on Dignitatis Humanae, the Catholic Church’s teaching document on religious liberty, promulgated at the Second Vatican Council, near its end, on Dec. 7, 1965. Bradley said it was “innocent of culture,” and noted the opinion of Catholic writer Tracey Rowland that it was in particular “insufficiently wary of modern culture.” In the document, the Council seems to have believed in the “latently Christian nature” of the social trends of the 1950s. It was pointed out that Cardinal Francis George of Chicago has maintained that Dignitatis Humanae had a “naiveté about the unity of the church and the appeal of the gospel”. The understanding of religious freedom expounded in this document, and thus the heart of the Catholic Church’s current doctrine of religious freedom, is that the decision to follow Christ must be free. A “premium is placed on personal appropriation of the truth,” Bradley maintained. Additionally, the American experience served as a “template” for the kind of religious freedom the Council sought. However, the doctrine endorsed by the church has turned out to involve a “culture of reticence” to judge anything, due to the doctrine of personal freedom that it involves. It “sounds a lot like each one being left alone,” according to Bradley. The document seems to hold that religious freedom can be maintained over time without cultural support, he claimed.
Objections to Dignitatas Humanae had to do with traditionalist doctrine that “error has no rights.” Religion is about truth, and truth is assent to propositions about the way things really are. It is especially important to hold that religious truth is about correspondence to reality with respect to those propositions that are “relatively impervious to scientific investigations”. Moderating the Council’s doctrine was Pope Benedict XVI , who asserted that “God’s dominion extends to all areas of life.” Conscience is different from truth, since it is about action. Without an appeal to the truth, the claim to religious freedom becomes a claim to freedom based on personal identity. All culture becomes subjective, with authenticity becoming the measure of truth. The doctrine expounded by Dignitatis Humanae is thus today collapsing into relativism, Bradley believes. Its subjectivism will lead to a denial of religious liberty, as indeed is currently happening. The identity that late modern freedom protects is irrational, but in the case of organized religion, it is regarded as organized irrationality. It is seen as a clinging to the past and a problem for society.
While Bradley did not offer a specific alternative to the Council’s doctrine, his presentation seemed to imply that a durable doctrine of religious freedom needs a stronger emphasis on the objectivity of truth and the propriety of exclusive religious truth (while not requiring adherence to its details by everyone), and the personal duty to obey religious precepts. A doctrine more duty-focused and less freedom-focused, with a Christian majority, if not consensus, in society would provide a better culture in which the claim of religious freedom against state interference could be maintained.
Other presentations at the conference concerned the current secularist assault on religious freedom, and how Christians may respond to it. This will be discussed in a subsequent article.
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