Dr. Daniel Burns, Assistant Professor of Politics at the University of Dallas, discussed the important differences between freedom of religion and freedom of speech at the Catholic University of America on September 17. Both are under attack at the present time, but religious freedom is both more specific and broader in scope than freedom of speech, so that specifically religious freedom is needed to protect religious belief and practice, Burns maintained.
It might be added to this that really the entire First Amendment is under attack by the cultural Left. What is being attempted is to change private religious and moral beliefs and social convention with the force of the law, and for that, the First Amendment guarantees of freedom of religion, speech, association, and the press stand in the way. Thus the claim that these constitutional guarantees are inapplicable against whatever is cast as civil rights law and policy. There can be no constitutional protection of oppressive ideas (even though it was emphasized in the argument against social conservative censorship that freedom is important precisely when it offends sensibilities). But in the conflict between the First Amendment and the Left’s social engineering efforts, free speech has been much more durable than freedom of religion, and thus litigation which really seeks religious freedom is formulated as a claim to free speech.
Burns observed that an early free speech argument can be traced to a man often identified with religious freedom, and especially in the current conflict over freedom of conscience against the state. Sir Thomas More urged King Henry VIII of England to allow freedom of speech in the English parliament. Free speech was needed, he said, to allow Parliament to consider different ideas and the implications of its decisions.
Also in early modern times, some version of freedom of religion became necessary when nation states formed, at least for civil peace. Both freedoms rest, Burns said, on the conviction that it is not the government’s business how people “worship or speak.”
Burns correctly noted that America’s real historical religious policy has been to favor beliefs most Americans believe in. It might be added, however, that while in a sense the Supreme Court has carried this forward to the present day, the real sensibility now favored is the social liberalism of today, which is hostile to traditional religious faith and morals. But this is to be expected, and in a sense is unavoidable. The First Amendment is a clear effort at state neutrality on controversial questions, but all law must finally proceed from some vision of reality and morality. As Burns sharply put it, laws in every nation “take sides” on religious questions at some basic level (human sacrifice was an example cited by the Supreme Court in the nineteenth century).
The church has had a positive effect on society, Burns maintained, clearly suggesting that this is part of the reason religious freedom has historically been well thought of in America. The Catholic Church feeds the hungry and attends to other material needs of the sick and the poor, and likewise other parachurch organizations, both Catholic and Evangelical. Churches have contributed to the moral fiber of a nation (although the conflict over what this should be is now the focus of the attack on religious freedom). Every social reform movement in this country began with religious origins, Burns said.
The religious consensus which our government favors, both in the past and today, Burns believes, is a bare bones body of ideas comprised under the heading “civil religion.” The deity of civil religion is “a generous creator and judge.” It is within this context that freedom is likely to be won in real cases, but we should not be surprised that free speech has become a stronger doctrine than freedom of religion. This is because “religion separates us more than speech does.” Religious freedom involves the freedom “to act on moral convictions in public,” and conscientious objection is an integral part of this. Burns said that while “millions of laws” regulate action, only a few regulate speech. Because so many laws might be affected, religious accommodations must be “rare.” “Moral consensus” in society allows accommodations to be acceptable (this consensus, of course, is exactly what is lacking in our day). Freedom of religion in some sense is based on perceived “social utility,” or its contribution to society (again making religious freedom difficult to achieve if specific beliefs and practices are contrary to this consensus). Yet as this writer has tried to point out in many previous articles, for the true believer, there can be no conformity to a law or regulation held to be evil.
Burns said that freedom of religion is distinct from freedom of conscience. The latter is simply moral conviction, but before the mid-twentieth century, freedom of conscience was always understood to be connected with religion (and really with the duty to obey God as his commands were understood).
In addition to the desirability of a particularly religious or moral belief, Burns pointed out that the case for religious freedom is easier to make the more plausible the belief seems. This is doubtless why one hears science and religion controversies raised against religious claims. But it should again be noted that freedom is important precisely when it is unpopular, no freedom is needed for what people find inoffensive. And for the Christian, this is why apologetics has a very important contribution to make in our day.
Burns insisted people are wrong to maintain that freedom of religion can be adequately protected by freedom of speech and/or association. They are related, but different. Religion may involve specific requirements which are non-expressive or non- associational.
Burns noted that the philosophical founder of classical liberalism, John Locke, had a doctrine of religious freedom, but opposed freedom of conscience. People are free to believe whatever it is that they believe, but they are not free to act against laws that contradict religious belief. Yet he pointed out that there is a strong anti-Lockean strain in American history, insisting on freedom of conscience against laws or regulations incompatible with religious commitments. Here one might note James Madison’s Memorial and Remonstrance against Religious Assessments, cited in many previous articles by this writer. Crucial to making an argument for conscientious objection, Burns said, is to say that it differs from mere disagreement with laws. Laws must be obeyed even if we don’t like them or opposed them. They must be obeyed even if they are believed to be unwise or bad policy. Only if they are judged to be evil should liberty of conscience be claimed. This crucially ties in with freedom of religion, since any action which is religiously forbidden is evil for the believer, and therefore evil to obey. It should not be obeyed regardless of however pained or offended anyone is, and regardless of the penalty.
Religious freedom is then seen as more closely tied to freedom of conscience than to speech or association. Both religion and conscience have their moral force from the imperative of doing the right thing, and most people can see that it is obviously wrong to take an action believed immoral, regardless of how plausible or popular it is. With a sustained argument for religious freedom, we have hope of greater public support in the future, but for Christians, the overriding consideration must always be obeying God.