Judge Kavanaugh's future record on religious liberty cases will likely resemble that of Justice Kennedy.
When the Witherspoon Institute’s task force on religious freedom released its monograph, Religious Freedom: Why Now?, earlier this month, the answer to the question in the title seemed obvious. The controversy occasioned by the Obama Administration’s mandate that all health plans pay the cost of contraception was in the front of the news, and the Catholic bishops were taking a united stand insisting that, at the very least, their churches and agencies be exempt from being forced to pay for drugs and procedures whose use the Church teaches to be immoral. The press was beginning to frame the issue as women’s rights versus religious liberty, and while an immediate showdown was apparently averted in part by the distraction caused by a radio commentator’s outburst, the larger question seems likely to be featured in the upcoming presidential campaign. Religious freedom is an issue now, it seems, because the continuing growth of government involvement in daily life makes every matter of how people choose to live into a political question: “The personal is political,” once a radical slogan, has become a daily nuisance, or a burden, or a threat.
But actually, Religious Freedom: Why Now? has been several years in preparation, and its coincidental release in the midst of the contraception mandate debate has the happy effect of putting that debate in global perspective. This is not another parsing of the First Amendment or meditation on its contemporary meaning. Instead, it is an analysis of religious freedom as a human right recognized by the 1948 Universal Declaration of Human Rights and an argument concerning its strategic importance in international affairs. The strategic case for religious liberty rests on two empirical observations: first, that religion is resurgent across the globe today, contradicting the secularization thesis that had been axiomatic among modern social theorists, and second, that religious extremism, terrorism, and warfare launch from places where religious liberty is denied. The way to achieve global peace, the authors conclude, is not to contain or repress religion, even bellicose religion, but to nurture and expand religious freedom, which has the effect of restraining religious excess from within, preserving the good of religion and meliorating the bad. Although the monograph starts from the U.N. Declaration rather than the U.S. Constitution, the authors do not at all forget about America; indeed, the little book is a call to America to remember herself.
The strategic argument is written to apply universally, drawing in part on the recent work of Brian Grim and Roger Finke, The Price of Freedom Denied (Cambridge, 2011), who compile and analyze statistics about religious persecution worldwide, and in part on a movement that saw early success in the 1998 International Religious Freedom Act passed by the U.S. Congress. (Thomas Farr, chairman of the task force, was the first director of the State Department’s Office of International Religious Freedom, established by the Act.) It might seem paradoxical and is at least perplexing to the layman to see the root cause of Islamist terrorism not in religious radicalism itself but in the denial of religious liberty in the countries from which terrorism emerges, but the argument is that repression radicalizes opposition of any sort, political or religious, or both. Philosophers at least as long ago as John Locke supposed that toleration in matters of religion would lead to civil peace and religious moderation, and at least since Tocqueville the observation has been made that religious liberty can strengthen religious belief and practice, too. That political oppression often generates violent resistance would surprise no one; what is new is to extend the logic to religion.
What Grim and Finke show with modern statistical analysis, and the Witherspoon authors report, is that civil liberties travel together: Respect for religious liberty correlates highly with political freedom, freedom of the press, and “gender empowerment,” and less highly but still significantly with economic freedom and a number of economic measures such as lower poverty and higher GDP. In short, “Social science confirms that religious liberty is tightly bundled with other liberties” (p. 21). That almost all the perpetrators of 9/11 hailed from Saudi Arabia, a repressive Islamic monarchy, perfectly reinforces the principal argument. Moreover, while the Witherspoon authors are delicate and indirect on the question, the clear implication to me is that the architects of American military intervention in Iraq and Afghanistan overlooked the importance of religious liberty in trying to plant the seeds of constitutional democracy in those countries without insisting on guarantees for religious liberty, too. Had we forgotten that our own heritage of religious liberty grew along with our democracy, indeed that widespread if imperfect religious equality preceded universal suffrage by some decades? It might indeed be a tall order to ask for toleration among the Afghanis, as the recent violence in response to accidental burnings of Qur’ans has shown. But in Iraq, inter-sectarian violence seemed for a while to have been condoned by American troops, and, perhaps for fear of showing favoritism, protection of native Christians and Jews also seemed neglected. While the authors carefully refrain from comments like these, they do not hesitate to note the repression of religious liberty in contemporary China, where state atheism is a part of the Communist heritage that survived the capitalist turn.
Underlying the strategic case for religious freedom is a fresh and careful analysis of religious liberty itself. Although in the “executive summary” the authors give busy readers permission to skip ahead to the discussion of international affairs, it is well worth the time to read part one, “The Ground of Religious Freedom”: An account that is at once so comprehensive, succinct, and cogent is hard to find. Interdisciplinarity has been the hallmark of Witherspoon initiatives in the Institute’s first decade—I should disclose that I have participated in some of these, on marriage, business, and pornography, but not in this one—and that is no exception here. The discussion begins with a review of anthropological and cognitive-psychological studies that support what one skeptic calls a “belief instinct,” and while of course they recognize that this provides no evidence of any particular religion’s truth, they suggest it shows that human beings naturally seek the truth about first things and seek to order their lives in the light of what they hold to be true. For this is how they first define religion: “the effort of individuals and communities to understand, to express, and to seek harmony with a transcendent reality of such importance that they feel compelled to organize their lives around their understanding of it, to be guided by it in their moral conduct, and to communicate their devotion to others” (p. vi). Although they also quote Madison’s “Memorial and Remonstrance,” which in turn references the Virginia Declaration’s definition of religion as “the duty which we owe to our Creator,” it is clear that the Witherspoon working definition of religion is dynamic and open-ended, not subservient, indeed broad enough to include philosophy itself, or at least its zetetic versions. The moral case for religious liberty, then, is grounded not immediately on God’s commands but on human dignity: “The dignity and integrity of the human person require that all people everywhere enjoy the freedom to fulfill their duty to seek and embrace the truth about transcendent reality as best they can” (p. 28). “Conscience has rights,” they quote John Henry Newman as saying, “because it has duties.” Religious liberty, in other words, “is the freedom of who we are to embrace the ultimate truth about all that is” (p. 31). It is a freedom to know and to believe, a freedom to worship and to act, and a freedom to associate and to speak.
But the authors realize that it is not adequate to explain religious rights on philosophical (and anthropological, psychological, and political) grounds without allowing religions to give an account of themselves. Religious liberty has often been acknowledged in words by those who deny it in practice, and indeed today it is acknowledged in the widely subscribed “Universal Declaration” that is in practice ignored by subscribers who govern at least half the world’s population. The Witherspoon authors address this by inviting representatives of Judaism, Christianity, and Islam to make the case for religious liberty from within their own religious traditions, a “religious case” they say. The three accounts, about two pages each, are very interesting, not least for how they differ one from the other. It is no surprise that the argument making the case for religious liberty from within Islam is the most difficult. Its author, Abdullah Saeed of the University of Melbourne, forthrightly acknowledges that “classical Islamic law stipulated the death penalty for those who left Islam,” promising, however, that “increasingly Muslim thinkers today are using the arguments found in the Qur’an to defend religious liberty from an Islamic perspective,” his own argument being that God tests human free will with “the freedom to choose whether to believe in the one God” (p. 41). Though I do not think this would be a Christian formulation—the Gospel of John tells us (15:16) that Jesus said to his disciples, “You did not choose me, but I chose you”—it ought to be remembered, as the picture of Mary Dyer on the cover of the book is meant to remind us, that Christians executed heretics for speaking against orthodoxy not that long ago and not that far away. Christian opposition to the practice led to its eclipse, and it would be churlish to scoff at Muslim efforts to reform their law against apostasy from within. Of the three embedded essays arguing for religious liberty from within faith traditions, it ought to be said that they nicely model one of the monograph’s principal tenets: that religious speech can make a valuable contribution to public debate without veiling the religious authorities on which it relies. This is not only a matter of respecting the rights of the faithful to speak from the heart; it is a matter of enriching public discourse itself.
Let me conclude with a few questions that reading this thoughtful book has provoked for me. First, which comes first, religion or religious liberty? Religious liberty may be the precondition of religious practice for minority communities, and the precondition for most religious conversions, but isn’t religion itself the good that is sought, and once embraced, isn’t liberty usually a subordinate good? In religious communities characterized by vibrant worship and the shared norms of a comprehensive way of life, is religious liberty more than a right of exit—valuable, to be sure, and probably even reinforcing of the community by siphoning off those who are discontent, but not constitutive of community happiness? Secondly, while religious liberty may be a good that all religions can agree on in certain circumstances, aren’t there other times when political alliances—perhaps precisely for the sake of peace and safety—are likely to form between religious believers in one faith and secular dissenters from others? After all, not believing in, say, the veracity of the Qur’an is something unbelievers in Muslim lands share with Jews and Christians; and of course similar observations might be made about those who share disbelief in the resurrection of Jesus.
Finally, on the question of the hour as raised at the outset: The definition of religion in Religious Freedom: Why Now? makes clear that religious life entails the duty both to live by the truth one holds and to bear witness of that truth to others. Religious liberty thus entails the right to bring one’s beliefs to public debate—not, of course, to coerce others in matters of belief, for rights are equal, but to advocate for the common good as one understands it, without inquisition into the sources of one’s understanding. In a democracy, no minority denomination—and in America, all denominations are minorities—can win the public debate solely by an appeal to its scripture or doctrine; political wisdom will need to find a way of articulating principle and formulating law that is non-sectarian. But few religions fail to teach about the relations of the sexes, the formation of families, or the raising of the young, and it seems to me foolish as well as unjust to ignore their experience and their voices. The meaning of religious liberty as presented in this brief but important document is that recognizing the right of religious expression to a hearing in the public square does not negate, but ought to strengthen, the right of others to live as their own consciences dictate as they, too, strive to live in the light of truth.