Defend Religious Freedom But Why Now?

on April 6, 2012

Robert P. George has established a philosophical justification for religious freedom. (Photo credit: Princeton University)


On Thursday, March 1, eminent scholars and religious freedom advocates met at Georgetown University in an event sponsored by the Berkley Center for Religion, Peace, & World Affairs to discuss growing challenges to religious freedom in the contemporary world. These challenges were highlighted by such events as the contraceptive/abortifacient drug mandate in the new HHS regulations, the Obama Administration’s attack on the “ministerial exception” at the Supreme Court, and cases of violent persecution of various religious groups in the non-western world.

Robert P. George, McCormick Professor of Jurisprudence at Princeton University, Director of the James Madison Program in American Ideals and Institutions, and a co-author of the recent Manhattan Declaration, established a philosophical justification for religious freedom. “The starting points of all ethical reflection … [are the ones] that some philosophers, those of my particular school, refer to as ‘basic human goods,’” George said. This means that human beings possess value in themselves, are a good in themselves, which the state cannot set aside in its law. Just laws derive from the moral law, and so, contrary to liberal legal theorist John Rawls, good precedes to any right or rights identified in law. In other words, rights are natural rights, they are not granted by the state. Quoting from Martin Luther King’s letter from Birmingham jail, George said, “There are two types of laws, just and unjust … one has not only a legal, but a moral duty to obey just laws, conversely one has a moral responsibility to disobey unjust laws.”

Social bonds are also aspects of our human being, and thus have an intrinsic value. We enter into social relations, not simply for our own individual goals, but for the sake of social relations themselves. The social aspect of religion, therefore, should also be protected in law. “It matters to the identification and defense of the right to religious liberty, that religion is yet another irreducible aspect of human well-being and fulfillment, a basic human good,” George said. Religion is an aspect of the human good, being an attempt to find harmony with ultimate reality. Reason thus points to the spiritual life of man, and thus spiritual life is a good, and respect for this good requires religious liberty. Because the value of human beings seeking harmony with ultimate reality must be respected, people’s right to religious liberty must be respected, even if they are in error.

The IRD emeritus board member referred to two Vatican II documents on religious liberty, Dignitas Humanae (Declaration on Religious Liberty) and Nostra Aetate (Declaration on Non-Christian Religions). The first advances the argument of the value of human beings seeking the ultimate truth as a basis of religious liberty, the second acknowledges a measure of truth and value in non-Christian religions; another argument for religious liberty. He went on to say that although his natural law argument for religious freedom is rooted in Catholicism, which has a natural law framework, commitment to natural law is broader than Catholicism. A natural law justification of religious freedom makes religious freedom in itself a good, a rational affirmation of human dignity, rather than a modus vivendi between rival doctrines and their adherents. The McCormick Professor of Jurisprudence then reconciled this with the Catholic Church’s claim to unique truth by noting its claim that true fulfillment of man’s religious aspiration is found only in Christ.

George’s natural law defense of religious freedom involves the claim that there are natural rights which the state cannot take away, with religious freedom one such right, and also that religious believers may speak on public policy issues in the contemporary world. Both claims are widely denied by secularists. Although it was noted that George’s work is “in some quarters widely vilified,” he said “I want to show that Christians and other believers are right to defend their positions on key moral issues as rationally superior to the alternatives proposed by secular liberals. My criticism of secular liberals is not that they are contrary to faith, but that they fail the test of reason.”

Accordingly, George expounded on the doctrine of marriage in terms of natural law.  Marriage is a natural institution, not a mere emotional bond (as he argues in his legal article “What Is Marriage?“, and also in a book to be published by the same title). The historic characteristics of marriage, a sexual bond between two people, permanent in nature, and protected in law, argue for marriage as a natural institution between two persons of the opposite sex. If it were only an emotional bond, arguments could be made for homosexual marriage, likewise if marriage is rejected as a natural institution and homosexual marriage accepted, the same arguments that emotional bonds must be recognized in law could extend to group (or “polyamorous”) marriage, involving a group of people, perhaps of both sexes, who are “married” to each other. He noted that this is now being proposed by avant-garde thinkers.

George noted recent efforts in this country to protect religious freedom. The Religious Freedom Restoration Act of 1993 declares, at least in federal law, that there must be a “compelling state interest” to burden the religious freedom of individuals; any burden must be the least intrusive or coercive means of protecting said interest. This, he said, creates a “high standard and heavy presumption.” But, he maintained, this a matter that can be settled by “our common human reason.”

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