Limits of Religious Freedom

In the face of determined assaults on religion, conservative activists and intellectuals have offered increasingly strident defenses of religious freedom. This “first freedom” is presented as an inviolable principle, an absolute “right to be wrong.” Such rhetoric oversells religious freedom and undermines religious belief.

In 2018, the Satanic Temple erected a “holiday” display (a woman’s arm entwined with a serpent grasping an apple) in the Illinois State Capitol. Dave Druker, spokesman for the Illinois secretary of state, defended the installation. “Under the Constitution, the First Amendment, people have a right to express their feelings, their thoughts,” Druker said. “This recognizes that.”

Many religious conservatives seem to agree. In 2014, when the Satanic Temple tried to organize a Black Mass at Harvard University, many Catholics called on Harvard to forbid this act of desecration. Others were primarily concerned that a similar ban could one day be turned against Christians and conservatives. Robert Miller, a conservative law professor and believing Catholic, wrote an article explaining “Why Harvard Was Right Not to Ban the Black Mass.”

In 2010, Liberty Counsel, a conservative Christian legal organization, was moved by the same concern to file an amicus brief in defense of Westboro Baptist Church. Westboro had picketed the funeral of Matthew Snyder, a Marine killed in Iraq, with banners saying, “You’re going to hell,” “Semper fi fags,” and “Thank God for dead soldiers.” Liberty Counsel warned that restricting such hateful displays could threaten the rights of Christians: “Today it is the offensive speech of the Phelpses, and tomorrow it could be religious, pro-life or pro-family speech, or any other speech for that matter.”

Both of these cases exemplify a form of religious freedom absolutism that is now common on the right. Conservatives fear that their own religious beliefs will be restricted, so they oppose any limits on religious freedom or free expression. This tactic may be narrowly effective. It has a certain superficial consistency. But it obscures the fact that religious freedom cannot be limitless.

Karol Wojtyła, the future Pope John Paul II, foresaw the pitfalls of religious-freedom absolutism and warned against them at the Second Vatican Council. An early draft of Dignitatis Humanae presented religious freedom in absolute terms: “If . . . the human person arrives at an erroneous conclusion, no human being and no human power has the right to take the place of his erring conscience, or in other words to exercise coercion over it.” Wojtyła objected to this formulation:

No human being or human power has the right to use coercion on a person who has come to an erroneous conclusion, if this conclusion is not itself opposed either to the common good, or to another’s good, or to the good of the person in error. If it is, in fact, opposed to one or more of these, then certainly legitimate superiors, such as parents or those responsible for the common good, can exercise a kind of coercion on the one in error, lest by following his error he cause proportionately grave evil either to others or to himself.

Wojtyła insisted that religious freedom was tied to truth: “We need to emphasize more strongly the connection that exists between freedom and truth. On the one hand, freedom exists for the sake of truth; on the other hand, without truth, freedom cannot achieve its own perfection.” Dulles summarized Wojtyla’s argument: “­Wojtyla . . . contends that we have the right and duty to follow a certain and true conscience, but that we have no such right to follow an erroneous conscience.”

When pressed, many advocates acknowledge that religious freedom is more limited than their rhetoric suggests. Ryan T. Anderson, one of the boldest opponents of ­same-sex marriage, has defended the now-common refrain that religious freedom protects every man’s right to be wrong. But he has also stated that this right extends only so far as “there is no injustice or other violation of the common good.” That is a very large caveat. It is hard to describe as a “right to be wrong” something limited by a contestable idea of the common good.

Because it is always tied to some idea of the good and the true, religious freedom is no magic formula for overcoming social conflict. Pretending otherwise offends reason and undermines faith. When advocates of religious freedom defend hateful acts, as Liberty Counsel defended the Phelpses, they confirm the sense many have that religion is bigotry. When they defend satanic displays in the name of religious freedom or free expression, they undercut the abhorrence of evil that is essential to piety. When they describe religious freedom as a “right to be wrong,” they suggest that error is a matter of no consequence

Several recently published books challenge simplistic accounts of religious freedom. Notable titles include Winnifred Sullivan’s The Impossibility of Religious Freedom, Saba Mahmood’s Religious Difference in a Secular Age, Anna Su’s Exporting Freedom, Elizabeth ­Shakman Hurd’s Beyond Religious Freedom, David ­Sehat’s The Myth of American Religious Freedom, Finbarr Curtis’s The Production of American Religious Freedom, Tisa Wenger’s Religious Freedom: The Contested History of an American Ideal, and the edited collection Politics of Religious Freedom. The editors of the latter collection state that it aims to “unsettle the assumption—­ubiquitous in policy circles—that religious freedom is a singular achievement, an easily understood state of affairs, and that the problem lies in its incomplete accomplishment”—an apt description of this whole body of scholarship.

Sullivan, a professor of religion at Indiana University, served as an expert witness for the first group of plaintiffs to bring a case under Florida’s Religious Freedom Restoration Act. The group, made up mostly of Catholics and Jews, sought to put statuettes and other markers on grave plots in a public cemetery but received a chilly reception from the local Protestant elite. These acts simply did not fit that elite’s understanding of religion.

In the course of the trial, Sullivan observed firsthand how adjudicating religious-freedom claims requires some notion of truth and the good. The words “religion” and “religious” appear more than 14,000 times in U.S. law. One cannot assign meaning to these terms without distinguishing between what counts as religion and what does not, an act not unlike God’s when he accepted Abel’s sacrifice and rejected Cain’s.

Saba Mahmood, a late professor of anthropology at the University of California, Berkeley, observed something similar in Egypt, where she witnessed the coup against Mohamed Morsi and the suppression of the Muslim Brotherhood. Seeing that some forms of faith were protected and others (such as the Brotherhood) were not, Mahmood concluded that “the modern secular state is not simply a neutral arbiter of religious differences.” In the name of religious freedom, it necessarily favors some forms of faith—generally less coercive and more individualistic ones—and suppresses others.

As these studies show, religious freedom is not a neutral principle that can be severed from a substantive idea of the good. In pluralistic societies, disagreements over what counts as religion are inevitable, as are those over where religious freedom must be curtailed. Along with Wojtyła, most people intuitively understand that religious freedom can and should be limited when it is “opposed either to the common good, or to another’s good, or to the good of the person in error.” They simply disagree about when that occurs.

Our public debates would be healthier if we acknowledged the limits of religious freedom. It cannot overcome our deep disagreements about what is good and true. It is not a simple or straightforward “right to be wrong.” Even if defending religious freedom in such sweeping terms is sometimes expedient, we should not pretend that it makes any sense. At best, it is like the incoherent raving that helped David escape the tyrant in the city of Gath, where he scrabbled on the doors of the gate, and let spittle pour down his beard.

Matthew Schmitz is senior editor of First Things. A version of this essay was presented at the Morningside Institute's Neuhaus Colloquium.