Michael Stokes Paulsen, professor of law at the University of St. Thomas in St. Paul, Minnesota, discussed the conflict over the doctrine of religious freedom at a presentation at the Family Research Council on July 21. What is crucially important in the present controversy over religious freedom, he believes, is understanding the beliefs and moral intuitions behind the different viewpoints people advance.
Paulsen found that there are essentially four approaches to religious freedom that have been taken. The first, important historically, is pre-modern state religion. In this doctrine, society believes that religious truth exists, that it can be known by all, and in particular that it can be known by the state. Deviations from true religion should not be tolerated. In a modified version, if there is tolerance, dissenters from the approved religion are significantly disadvantaged. This is the viewpoint of “Old Europe,” and also of contemporary Islamic movements.
Secondly, in an early modern view of religious freedom, religious truth is believed to exist, but the state cannot reliably know what it is. A general belief in a supreme personal being, and a commonly understood objective morality are part of this viewpoint, making one’s duty to God, whatever one thinks that is, inviolable and important. The government cannot establish religion, and free exercise of religion is “vigorously” respected. This, Paulsen pointed out, is the viewpoint of the United States Constitution. It gives the greatest scope for religious liberty, and is an originalist constitutional view.
A third viewpoint is religious tolerance by an indifferent society. People believe in the protection of religious liberty because people favor personal freedom generally. This writer would regard indifferent tolerance as the actual doctrine of the Supreme Court at the present time, beginning with the Everson vs. the Board of Education decision in 1947 (which said that the government may not “aid” either “all religion,” or any particular religion). Paulsen said that indifferent tolerance is a “weakened” doctrine of religious liberty. The underlying attitude toward religion is “gently condescending.” The result of this attitude is freedom for belief and expression, but “not conduct in opposition to the usual rules of the state.”
Finally, Paulsen held that while this country may effectively be at this third stage – indifferent toleration of religious belief and practice – there is some movement toward a fourth, final viewpoint, which is religious intolerance. According to this view, “religion is an affirmatively harmful thing.” Advancing this viewpoint would reflect the belief that religious doctrines are both untrue and harmful. Religion should enjoy no protection from the state, because protecting religion is “protecting delusions.”
Paulsen outlined four objections that are commonly heard to the vigorous religious liberty position of stage 2, which has historically been held in America:
- The law should be the same for everyone – exemptions privilege religious believers.
- “Religion is not a real thing” but a “made up thing.”
- Religious freedom can be abused.
- Religion is harmful to society.
Paulsen said that these four objections are in some respects reasonable and in other respects unreasonable. All forms of these objections, however, “reduce to opposition to religious liberty, opposition to the free exercise clause as it is contained in the Constitution … People don’t like it, and so want to interpret it in a really grudging or a negative manner.”
Paulsen said that religious liberty “really only makes sense on the supposition that God actually exists, or very likely exists, and that God makes claims on the loyalty and conduct of human beings.” These claims are “prior to and superior to the state.” Religious freedom is simply the recognition of the priority of God’s commands over the state’s commands. It was formulated and has historically been understood to be a “preconstitutional right.” The most important aspect of religious freedom is the belief that religious duty is superior to the state’s authority. This viewpoint is “suspicious of government power” over religious exercise. Paulsen said that the decline of religious faith “accounts for just about everything that’s wrong with religious liberty law today.”
In reply to the first of the four objections – that the law should be the same for everyone – with no “substantive immunity” based on religion, Paulsen said it has strong intuitive appeal as “the equal treatment view.” What conduces to this intuition is modern view of equality, which can be accompanied by belief in a relativism of ideas. Paulsen believes that this view is the “driving force” behind the Employment Division vs. Smith case, in which Justice Antonin Scalia said that a given religion cannot be singled out for penalty, but religious duty gives no immunity from neutral, generally applicable law. Religious freedom is understood as basically an anti-discrimination principle, not a principle protecting religious integrity. This is “problematic” because violations of religious precepts have historically been considered a form of persecution. Religious duty, Paulsen said, is not the same thing as mere preference, or what one thinks would be wise for society. The requirement of violating religious duty, on the other hand, is to put the religious believer in a position of a “conflict between two sovereigns.” Religious duty is a requirement external to the religious believer, not his own principles or preferences. “Unlike things do not need to be treated alike, and religion is not like any other belief system,” he said.
Secondly, the protection of religious liberty is prescribed by the Constitution, and this is “not neutral. It favors religious exercise over non-religious exercise.” Paulsen said the Employment Division vs. Smith decision “is not a very good textualist” interpretation of the Constitution. “It is in conflict with the best reading of the text to view a law as not prohibiting religion just because that’s not government’s intention and design” in enacting the law. “Free exercise” should be viewed instead from the viewpoint of the religious citizen, as to what religious precepts require. The Employment Division vs. Smith decision, he said, is also not consistent with the historical understanding of religious freedom, that it is a “preconstitutional, Lockean, natural right.” Opposition to special protection for religious exercise is “in contradiction of the internal logic and strength of the First Amendment.”
In response to the second objection – that “religion is not a real thing” – Paulsen held that “this is mostly an argument against having a free exercise of religion clause. It’s an argument against the Constitution.” Sometimes a secular justification of religious freedom is attempted, explaining religious freedom in terms of “autonomy.” But this “never quite works.” If everything people believe and do is “protected, then basically there is no law,” and further, religious liberty gets no special protection.
Also against the claim that “religion is not a real thing,” Paulsen said that in fact, religion is “reasonable and rational.” The theistic arguments are “not incontestable,” but they show that religious belief is a reasonable belief. These arguments maintain that the world is not self-sufficient. Neither theism, which holds that the world is dependent, nor naturalism, which holds that nature is all of reality, can “be proven by premises external to” themselves. Both are “coherent, philosophical orderings of reality,” Paulsen said. Although religious belief is not provable, it is nonetheless coherent and rational.
To the third objection – that “people will abuse it” – Paulsen said that “the potential abuse of a freedom does not mean that that the freedom doesn’t exist.” There will be insincere claims to religious liberty, and if religious freedom is strongly established, people will tend to frame their cases in terms of religious conviction.
It is also important to see that strong convictions are not necessarily religious convictions, despite the modern intuition that all strong conviction is religious. The danger of dispensing with protection for specifically religious conviction is shown by mid-twentieth century court cases concerning conscientious objection from military service. In the United States vs. Seeger case (1965), a “lapsed Catholic” claimed “religious” scruples against participation in the military. The Supreme Court accepted this claim. In the next case of this type, Welsh vs. the United States (1970), the Supreme Court struck out the term “religious training and belief” from the conscientious objector criteria, accepting mere “belief,” as adequate. In the next conscientious objector case, Gillette vs. the United States (1971), the court dealt with a Catholic holding a just war theory who opposed the Vietnam War, and also with a non-religious person objecting to the Vietnam War. Because the court believed that religious and non-religious claims should not be treated differently, both claimants lost. Paulsen said that this shows that by making religion “include everything,” nothing is protected.
To the objection that “religious liberty is harmful to others,” Paulsen said that legal harm must be determined by reference to a right’s “ordinary” and “extraordinary” effects. “All rights have costs,” he said. All rights “restrict government power,” and “indirectly restrict what society can do.” Once a right has been accepted as proper, we must “protect the right,” and “endure the costs.” Paulsen said that “you can’t count as a harm of religious liberty the fact that it treats religion specially, that’s what it’s designed to do.” Also, “administrative costs,” and “inconvenience” are irrelevant objections once religious liberty has been accepted as proper by the state. These “ordinary” effects of religious liberty cannot count as harms. “Extraordinary” effects, not contemplated by the original understanding of religious freedom, should only be identified by looking at the “strictest understandings of necessity … where the harm is so intolerable that it would have been beyond the contemplation of what the right to free exercise of religion actually embraces.” Wherever “the lines are drawn,” delineating “strictest understanding,” they should be drawn “as protectively of religious liberty as possible … Not everything the government does is compelling, and ordinary statutes and policies should generally yield to claims of religious liberty,” he said.
Additionally, in replying to the claim that religious exercise is harmful, Paulsen said that the government should not endeavor to vindicate “its own authority for purposes of vindicating its own authority.” It should not – as this writer believes it quite clearly did in the Obama administration’s contraception/abortifacient mandate – pursue a “purely symbolic” project of “coercing religious groups to submit, or in punishing religiously motivated conduct because the government disapproves of that conduct. All of those sorts of claims of important government interests, and you see them in many of the cases, are really antithetical to the idea of having a free exercise clause” in the Constitution.
A questioner asked about the current claim that anti-discrimination law and policy is a compelling state interest overriding religious liberty. Paulsen said that anti-discrimination laws are important, but merely statutory. However, “the Constitution prevails over statutes.” He said that we should not begin with anti-discrimination laws, and then ask if religious exemptions are allowable, but begin with the Constitution, and ask “does government’s interest really exist to the extent of protecting against essentially intolerable harm to non-consenting third parties outside the scope of the religious community.” This type of reasoning, Paulsen believes, will lead to finding compelling state interest in far fewer situations. He pointed out as an example of this the Masterpiece Cakeshop case from Colorado, recently accepted for review by the Supreme Court, in which the cake maker declined to bake a cake for a homosexual ceremony which would be designed to “affirm or embrace same-sex marriage themes.” Paulsen said that this is an easy case on free speech grounds. In going forward with this case, “the government’s interest is in punishing the religious view.” This state interest is really an attack on religious conviction.
If however there was a case in which the religious exercise was not a “strongly expressive activity,” one would still want to protect religious exercise because of the constitutional obligation in the First Amendment to protect it. The case of Storman’s Pharmacy in Washington state, which declined from religious conviction to stock abortifacient drugs, and which the Supreme Court declined to hear, was such a case.
Religiously based racial discrimination is a much harder case, Paulsen believes. But he thought that even here, the religious conscience should prevail, presumably if it could be shown to be genuinely religious. This writer would add that at least for Christians, which is the substantial majority in this country, proving a divine commandment – the claim of which Paulsen identifies as the true basis for religious freedom – against serving persons of another race would be virtually impossible from the Christian Scriptures. Assisting persons of another race was not held to be sinful even before the civil rights era. The remedy for exercise of religion which offends others in the commercial world should be, Paulsen said, “take your business elsewhere.”
Paulsen’s insight that religious freedom must be understood as the right to obey God, and that the exercise of this right is, in the nature of the case, superior to all other duties, must really be the final argument for religious freedom against its critics. As has been often stated in the recent controversy, Christians are required by God to obey him rather than men (Act 5:29), and it should be intuitively obvious to people in any culture that requiring action believed sinful or evil is morally repugnant.