Skip to comments.The Puzzle of Religious Liberty
Posted on 01/16/2013 3:29:31 PM PST by NYer
A Most Puzzling Puzzler
I invite the reader to think through an interesting and very serious conundrum. Many of us are rightly alarmed at ever-bolder attempts by our increasingly secular state to violate the religious liberty of its citizens.
To ward off such violations, we embrace the relevant part of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” We therefore invoke the so-called “Free Exercise Clause” as a shield to impede attempts by the state to control or prohibit the free exercise of our religious convictions (and implicitly, the “Establishment Clause,” as we’ll see).
We do not tend to regard this shield as something merely man-made, a rule that happened to be adopted in a game and now we must stick to (“Collect $200 if you pass Go”), but a rule written, somehow, into our very natureindeed, a kind of sacred, inviolable right.
That is certainly the way the American Catholic bishops wielded the First Amendment last summer when the Obama Administration attempted to use an HHS mandate to force Catholic institutions to provide insurance coverage for contraception, abortifacients, and sterilizations. The bishops cried out, “Religious Liberty.”
The embrace of religious liberty as a right was memorably expressed by James Madison in his “Memorial and Remonstrance” (1785). Madison, one of the great Founders, is considered to be the father of the Bill of Rights, so it would seem we’d want his opinion about the First Amendment. “The Religion…of every man,” Madison proclaimed, “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”
In fact, Madison declared that this right was rooted in a duty, “the duty of every man to render to the Creator such homage and such only as he [i.e., every man] believes acceptable to him [presumably, but not unambiguously, God].”
Here comes the puzzler, which I’ll set out in semi-syllogistic enumerated steps.
(1) Today we passionately hold that we each have a right to believe, to worship, as we see fiteach of us individually. But that means everyone else has that same right.
(2) The claim and practice of that right creates a diversity of beliefs, as many as there are different convictions about what homage is acceptable to the divine.
(3) In order for each individual to protect himself from some other believer using government power to dictate his beliefs, he must not allow his own or anyone else’s belief, anyone else’s faith, to define or inform the state as the established state religion (so that the Free Exercise Clause is inextricably linked to the Establishment Clause).
(4) But the result is a state defined by no one’s beliefs, a state defined by the subtraction of all religious beliefs, that is to say, a state defined by the establishment of unbelief, a secular state.
But, it is precisely this state, as secular, that ever more forcefully infringes on religious liberty by actively imposing a secular worldview upon the citizenry as the default, established worldview. This view is gotten by the subtraction of all beliefs, including the subtraction of the particular moral beliefs in Christianity that stem from its doctrinal beliefs, but not merely that. It also entails the addition of its own moral beliefs. The HHS mandate is just that: an attempt at forced subtraction of Christian moral beliefs, and the imposition of secular sexual beliefs in their place.
And so, the puzzler. Like Chinese handcuffs, the harder we pull on Religious Liberty to extract ourselves from the increasingly more insistent impositions of the secular state, the more we encourage religious diversity. The more religious diversity, the greater the need for a secular state which protects us from having someone else’s religious beliefs imposed upon us. The more we empower a secular state defined by the subtraction of all particular religious beliefs, the more powerfully does the secular state establish its own secular worldview by federal force, including secular morality. Hence, the HHS trying to mandate that the Catholic Church provide coverage for contraception, abortifacients, and sterilization.
To put the puzzler in a nutshell, the hearty and unambiguous affirmation of religious liberty leads to the secular destruction of religion and the imposition of secularism as the default worldview.
This destruction is even more complete than we’ve implied, a point that can be made clear with our example of the Catholic Church. If it is an “unalienable right” for every man to define his religion according to his “conviction and conscience,” then the Catholic Church above all violates Religious Liberty by imposing very specific theological and moral doctrines on its flock.
And so if we truly want the secular state to protect this “unalienable right” of each individual to define his religion according to his personal conviction and conscience, then the state can rightly be called in to protect the rights of individual Catholics from violations by the Catholic Churchincluding the Church’s intransigence in not providing contraception, abortifacients, and sterilization in its insurance packets.
At this point in the argument, if I were in the public square or even more a public university, I would no doubt be treated to shouts of “Fascist!” and, among the more historically-minded, “Torquemada!” In other words, my “freedom of speech” would be pummeled in the name of what appears to be freedom of religion because I seem to be implying, by calling into question the unalienable right to believe whatever one wants, that I intend to impose upon everyone else what I happen to believe.
That is so unspeakably bad, a kind of blasphemy, that he who dares even imply it, thereby forfeits one First Amendment guarantee (freedom of speech), for the protection of another more sacred (everyone else’s free exercise of religion).
That is precisely why we need a secular state to protect us, so that one man’s religious beliefs aren’t allowed to lord it over everyone or anyone else’s.
And that ends us back at the puzzler: the affirmation of religious liberty leads to the suppression of religion by a secular state. The secular state is thereby empowered to impose unbelief, including the particular moral beliefs held dearly by secularism. The affirmation of religious liberty leads to its extinction at the hands of the secular state.
Religious Liberty and the Strategy of Secularization: “Divided We Stand”
This seems to work so well for the cause of secularization, landing us right back under the thumb of a secular and secularizing government, that we have warrant to ask a more-than-interesting question: Is that the way it’s been designed to work? More provocatively, was it designed to work that way by secularists, i.e., those who wished to subtract Christianity from public dominance and replace it with secularism?
It’s worth exploring, beginning with Thomas Jefferson’s provocative words, written in a letter to Jacob De La Motta (1820), that seem to imply that maximizing the diversity of religious beliefs keeps any one of them from gaining control of political power. For Jefferson, “religious freedom is the most effectual anodyne against religious dissension: the maxim of civil government being reversed in that of religion, where its true form is ‘divided we stand, united, we fall.’” The greater the diversity of beliefs, the less likely any of them will have enough strength to gain political power. And so, as far as religious beliefs go, “divided we stand.”
This same approach would appear to be spelled out more directly in James Madison’s famous Federalist 10, dealing with the danger of factions. The problem with factions is, for Madison, that there are generally too few of them. With a mere handful of factions, each “united and actuated by some common impulse of passion,” it is all too easy for one of these factions to swell to a majority and gain political ascendancy. Once having gained its position of power, it can then steer the republic in its own particular direction. The cure is to continually stir up more factions, especially from the national level. And Madison makes clear this principle applies to religion. While “in particular states…a religious sect may degenerate into a political faction in a part of the confederacy…the variety of sects dispersed over the entire face of it [i.e., the nation], must secure the national councils against any danger from that source…” In strategic sum, the more sects, the better, and so wise leaders will encourage religious faction.
This raises an almost impossibly delicate question about James Madison, the father of the Bill of Rights, and hence the First Amendment. Is the affirmation of the right of every man to belief whatever he wantsreligious liberty understood in the way that Madison expresses it in his “Memorial and Remonstrance”a way to promote a greater number of Christian sectarian factions, so that none of them will, by majority rule, be able to gain control of the national government?
I am not just asking the relatively benign question, “Does the free exercise clause help to keep any one Christian sect from attempting to establish itself as the national church?” The obvious answer would have to be “yes.”
I am asking the more delicate, even explosive question: Did Jefferson and Madison believe that maximum religious plurality was something the national government should actively promote?
Or, put more pointedly: Is Christian unityprayed for by Jesus Christ, “for those who believe in me…that they may be one” (John 17:20-21)precisely the thing that the state must both fear and seek to undermine at every turn?
Is, then, the affirmation of religious liberty, defined as the right to believe whatever one wants, a kind of “divide and conquer” strategy, one that continually and quite purposefully undermines the essential Christian goal of unity?
I think there is reason to answer both “Yes” and “No,” and both answers will help Christians defend themselves from current attempts by the secular state to extinguish the church and its public influence.
YesIt’s a Trick! Spinoza’s Subterfuge
To understand more fully how the affirmation of religious liberty, or more exactly, the right to believe whatever one wants, was designed as a strategy of divide and conquer we’d have to go back beyond Jefferson and Madison to Benedict Spinoza, the great 17th century radical Enlightenment thinker.
It’s beyond the scope of this article to delve deeply into Spinoza, but as an overview we can say the following. Spinoza was one of the first great modern freethinkers, an atheist or a pantheist (depending on how one cashes out his assertion that “God is nature, and nature is God”). In either case, he was a devout enemy of Christianity and his own Judaism, devoted to his own reason against the dictates of any revealed religion because the latter (so he believed) was derived from the foolishness of irrational superstition.
The great problem for Spinoza was what has been called the theological-political problem: tersely put, in all societies the many religious fools lord it over few enlightened philosophers. This was the problem he set himself out to solve in his famous Theological-Political Treatise.
His solution, as you may have guessed, was to assert the absolute right by nature of everyone to believe anything he wants. Or to put it in its proper political settingand here we note that Spinoza is rightly held to be the father of modern political liberalismeach person has the natural right to believe whatever he wants as long as he is publicly law-abiding. Belief is private; morality is public. One has the right to believe anything one wants about God, as long as one behaves (and especially ceases to bother others about their beliefs).
Spinoza’s solution had a two-fold, intended effect. First, it flattered the “fools” by ascribing to each one of them the extraordinary right to define God as they each saw fit. Second, it shielded Spinoza himself, an atheist or pantheist, from public persecution by Christians. In the liberal state as he defined and designed it, Spinoza, too, had the absolute right to define his own beliefs.
But to return to our previous point, the affirmation of this right would effectively multiply the number of different beliefs accordingly. The more deeply each person affirmed his own right to define his own religion, the more religions there would be. The more individually-constructed religions, the more each would consider it essential to protect this right, thereby empowering the liberal state to ensure that each person’s private beliefs were protected from assault by others’ beliefs. The ultimate result, after some churning, would be a secular, liberal state, one defined by no one’s beliefs and hence by unbelief.
Played out in this way, Spinoza’s atheism becomes the default “belief” of the liberal state. Or, we might say, unbelief has become the established belief, the established religion.
Jefferson and Madison are, arguably, heirs to that strategy, although as Deists their established belief was gotten as the result of the subtraction of Trinitarianism leaving the remainder of Unitarianism. Not as radical as Spinoza, but leaning in that direction. Historically, our liberal state has now gone beyond the wan Deism of these founders, and is pushing toward the complete secularist unbelief that has already been firmly established in Europe’s liberal democracies. Spinoza won out.
NoReligious Liberty is Good! That’s Why the Church Invented It
Here, too, we’ve got a much longer story that would have to be conveyed to fully understand the point, but in overview we can recover an older sense of religious liberty which actually affirms the unity of the church, rather than dismantling it by dividing it into ever smaller splinters.
It will surprise readers, perhaps, to find out that what we call the “separation of church and state” was actually invented by the church. And not recently, either. The principled distinction between the church and political power was something hammered out by the church between the 5th and 12th centuries.
Ecclesiastical and political poweror priestly and royal, as they called itmust be kept distinct because each has its own specific function, and each becomes corrupted by trying to usurp the function of the other. The church deals with the eternal fate of the soul, and state with the temporal cares of this world. When the church usurps political power, it becomes worldly and corrupt, using its spiritual resources for mere political ends. When the state usurps the domain of the church, it uses spiritual power as an instrument for political gain, bending doctrines to suit its worldly goals and engaging in endless political simony and nepotism. For the good of each, the church and state must keep to their own proper domains.
The reforming popes during this period pushed this distinction between church and state largely because they were combating the various attempts by Christian kings, emperors, dukes, and other land lords to subordinate the church to their political aims, as in, for example, the widespread custom of kings and lesser land holders appointing priests and abbots of their own choosing, or of treating the churches on their lands as a ready source of tithe revenue, or even of meddling in doctrine. The church must be independent offree fromsuch manipulation.
And that is the proper, original declaration of religious liberty: the right of the church to be free from manipulations by the state.
Note that this is a very different thing from the notion that each of us has a right to define our belief in God any way we fancy. It is a freedom from state interference or control so that the churchthe unified churchcan go about its work, the care of souls.
In a secondary, but very important sense, it is the freedom of the state as well The freedom of the state not to be turned into a theocracy with priests ruling as kings, the freedom of the state not to be turned into a monastery with the most stringent demands for holiness imposed on everyone by political force, the freedom of the state to govern the things of this world according to the best dictates of the virtue of prudence, the freedom of the state from having to settle doctrines and doctrinal disagreements.
But doesn’t this last freedomthe freedom of the state from having to settle doctrines and doctrinal disagreementssomehow land us back in the puzzler, with the secular liberal state imposing non-belief?
No, there is a very big difference, all the difference, in declaring that the state should keep out of doctrinal quarrels (a prohibition of state power), and declaring that the state should impose unbelief by actively removing all vestiges of Christianity from our civilization (a positive mandate, of which the HHS mandate is a living example).
Or, more deeply, there is all the difference, between defining religious liberty as the right of the unified church to be free from manipulations by the state, and defining religious liberty as the right of every individual to believe whatever he wants, which destroys the unity of the church and leaves the individual powerless before the manipulations of the state.
Choose you this day whom you will serve. But as for me and my house, we will serve the Lord.
Joshua’s statement of Judeo-Christian Libertarianism is the basis for all free societies.
The false assumption in the presentation of the problem is that government/the state should be so big as to be a major factor in the presence or absence of a religion. When the state controls health care, and adoptions and education and my very food, then the presence or absence of religion in the state is very important. But if the state does not control my health care, children, education or food, then it is quite irrelevant what the state does.
And when a local government leans a direction I don’t want and puts the wrong decoration on the village hall, I can always vote with my feet to move to the next village. But when the central government imposes one-size-fits-all on festive decorations, then democracy is destroyed. Namely I have been disenfranchised and no longer am able to vote with my feet.
Gays are a good example. When government did not control spousal benefits and taxes are so low it does not matter one’s marital relationship, then Gays could not care less about marriage. But when government became pervasive in every phase of life with recognizing marriage for all types of benefits and tax quirks, then Gays became motivated to demand equal treatment by the government.
There’s a huge hole in that quasi-syllogistic reasoning. He leaps from no particular faith being the established religion to faith or belief not informing politics at all. Which is a ridiculous position. There’s a world between antidisesteblishmentarianism and pure secularism, were such a thing possible.
I could see this being an insoluble puzzle back in the day when, for instance, protestants couldn’t see fit to tolerate what to them was a perfectly intolerant religion like Catholicism. Sorta like how we feel about communists. How do you support the rights of people who wouldn’t recognize your rights were they in power? But now it’s more about degree of influence. Libs want to ban religion from the public square, for despite millenarianism, liberation theology, “social justice” preaching, religion is basically hostile to them. I’d like it a bit kore, for the sake of natural rights and such. But then I cringe when fellow supposed conservatives act as if our and Israel’s security concerns are equivalent because it is the Holy Land.
Nevermind that, however. We can always tweak the nobs. What’s important to know is that what’s going on with repudiation of conscience in the hostile takeover of healthcare isn’t about balancing religious freedom against established religion, or any such thing. It is about abridging freedom of religion, purely and simply, because like the right to keep and bear arms they don’t believe in it. They believe in state funded abortion, not the right to refrain from active participation in killing babies.
I don’t think that’s it with the gays, exactly. For most people it’s the principle of the thing, I think. Secondarily it is to use the state to force normization, which is more important for nonpolitical reasons. Finally, the “LGTB community,” which is not whatsoever an actual community, is just another identity group useful for pushing a panopoly of leftist interests, gay “marriage” being a useful wedge issue. See how it alienated young adults, for instance, from the Republican party, without them being interested whatsoever on a practical basis.
Finally we get to what you’re talking about, and there’s that. There’s also probate law, presumably, concerns over property, contracts, adoption, etc. There are so many ways the state touched our lives, and who has the time or patience to de with everything line by line? Easier to fall into readymade arrangements and classification. And it’s close enough, they think, since marrieds also cohabitate and have sex (sometimes).
But I still think it’s mostly what I said before.
Small government = no religious freedom paradox.
Big government = complexities and contradictions impossible to set straight.
I’m inclined to agree with you. Only the religious puzzle was more puzzling back during our founding, when gubmint was immeasurably less intrusive. This was because people really, really believed in religion, instead of the abstract way mist of us believe now. So it’s not a big-small, left-right thing, exactly.
Add to that how our belief in small government so clearly derives in part at least from religion (natural rights from natural law, which doesn’t exist fir materialists), and it’s more complicated still.
It’s really pretty simple.
The founding generation and the generations that immediately proceeded them learned certain lessons well, from hard experience. They knew that the establishment of a state church could only represent coercion of conscience, and therefore, inevitably, tyranny.
And so, they forbid the establishment of a state church, they made it clear that Congress could not rightfully impinge on free exercise, and they banned the use of any religious test for public office.
But, they DID NOT in any way bind the individual exercise of religious belief. They did not, and could not, bind the conscience of the individual citizen in the voting booth, or of the individual REPRESENTATIVE. That representative is completely free, and actually duty-bound, to legislate according to his own understanding of self-evident truth, but always within the absolute requirements of the constitutional oath to support and defend the supreme law of the land.
It was brilliant, and scriptural.
And as long as we were wise enough to, as the first Chief Justice of the U.S. Supreme Court, John Jay, said, exercise our “our duty...privilege and interest to select and prefer Christians for our rulers,” this worked very, very well.
Want to put things back right? Exercise that duty once again.
I don,t know if i agree or not but i would like to point out a little detail.
CONGRESS can make no laws concerning the establish of religion nor prohibit the free exercise thereof, State has nothing to do with it.
Congress does not run the states, The States are free to make their own laws where they are not prohibited by the constitution, the 1st amendment does not probibit the States from doing anything.
It is only something that Congress is prohibited from doing.
Most States hold that same opinion of religious freedom. that is why there is no State churches.
If the Government can not make a law on a certain matter that means they have no right to say it is illegal, but on the other hand they have no right to say that it is legal.
In other words if some one thinks that homosexuality is the way to go then the Congress can not say that it is illegal, on the other hand they can not force the States or the Church to Honor it because they have no right to say that it is legal.
As far as the Churches are concerned they have never forced no doctrine on me false or true, this has happened in the past because the government and the Churches were sharing the power which is the reason for the first amendment where Congress is concerned.