In “Limits of Religious Freedom” (March), Matthew Schmitz says that we must recognize limits to religious freedom and boundaries to what qualifies as religion. He is right on both counts. But the limits and boundaries he proposes, if taken at all literally, would bring an end to any meaningful right to religious freedom.
The principal limit on religious freedom in U.S. law is the rule that government may substantially burden the exercise of religion only when doing so is necessary to achieve a compelling government interest. This limit is codified in the federal Religious Freedom Restoration Act and appears in similar legislation or constitutional interpretation in a majority of the states.
“Compelling” conveys the right idea: Religious freedom is a fundamental human right, and only a very powerful reason should override it. Yet “compelling” is vague, and its vagueness leaves every interest group free to claim a compelling interest in stamping out whatever offends it. “Compelling governmental interest” ought to mean an interest in preventing substantial and tangible harm. Unfortunately, neither courts nor legislatures have been so clear or so protective. As Schmitz says, committing to religious freedom in principle does not resolve our disagreements in practice. And on both left and right, religious freedom is increasingly controversial even in principle.
Despite its vagueness, the law on the books has a core idea: Religious freedom may be limited only to prevent some (not well-specified) harm to others. Schmitz does not acknowledge or even allude to this limit. He proposes other limits instead. He appears to say that religious freedom should extend only to religions that are both true and good. Or perhaps he means, to religions that are not actively opposed to the good. He says that religious freedom does not enshrine a “right to be wrong,” and that it is “always tied to some idea of the good and the true.” He quotes then-Bishop Karol Wojtyła, who said that “freedom exists for the sake of truth.” And he quotes Avery Cardinal Dulles, summarizing Wojtyła as meaning that we have a right to pursue a “true conscience, but that we have no such right to follow an erroneous conscience.”
I don’t know whether either Schmitz or the future pope intended to be taken literally, or whether they intended all that their statements imply. But freedom for the true and the good is not religious freedom at all. Limiting religious freedom to what is true and good would be catastrophic for many religious minorities, quite possibly including the conservative Christians who are the primary constituency of First Things. Religious tenets that seem indubitably good and true at First Things seem obviously false or completely unverifiable to many millions of other Americans.
Western societies have tried protecting just the one religion that government believed to be true. These regimes gave rise to the wars of religion, and then to a reaction that eventually recognized religious freedom for all—and in the United States, to disestablishment and the equal legal status of all faiths and none. The American solution does indeed protect the truth, but without purporting to identify the truth. That is, it protects each person’s understanding of the truth, and more fundamentally, it protects the search for truth. These are important purposes of religious freedom, though not the only purposes. Religious freedom also works to eliminate a source of great human suffering and social conflict: warfare and persecution, of course, but also violations of individual conscience.
Our inability to agree on what is true in the realm of religion is why we had to create religious freedom in the first place. The fundamental point is to protect the religions that those in power disagree with—the religions widely believed to be false. And that is most of them. Consider Christianity, which makes an exclusive claim to truth. To the extent that Christianity is true, all other religions must be false, with a partial exception for Judaism. No religious freedom for anybody else? Whatever he may have meant, that is the implication of what Schmitz says.
If religious freedom were extended only to the religion that is true, or even to those religions that are not too flagrantly false, the editors of First Things would not be the ones to decide which religion is true, or which religions are close enough. Religious freedom is fundamentally a limit on government; in practice, therefore, its scope is a matter of law. This practical reality means that religious freedom will necessarily be administered, and largely defined, by some agency of government. Government would designate the true religion in the arrangement Schmitz appears to propose. But religious truth is impossible for government to know or administer.
Government designating the purportedly true religion was the historic problem. Government is not a competent judge of religious truth, the founding generation of Americans said, and they were right. And even if government could accurately identify the one true religion, tens of millions of unpersuaded religious dissenters would persist in what the government would view as false religions, and they would no longer be protected by religious freedom.
Only about two-thirds of Americans self-identify as Christian, and many of these are loosely attached and have only superficial knowledge of Christian teachings. The remaining one-third consists of more than one hundred million Americans. Many of these regard the central claims of Christianity as either false or utterly unverifiable and wildly implausible. They view these teachings as far from true and good, and certainly not as uniquely deserving of protection.
Specific Christian teachings have even less acceptance. Most Americans find Catholic teaching on contraception incomprehensible, and many find the promotion of celibacy bizarre. Nearly two-thirds of Americans support same-sex marriage, including nearly two-thirds of Catholics and mainline Protestants and one-third of evangelical Protestants. Polls do not determine truth, but they do drive much of government. Government in a democracy is unlikely to find traditional religious teachings on these issues to be true. Should these teachings therefore go unprotected by religious freedom?
These teachings fare no better on the criterion of goodness. About half the population would require conscientious objectors in the wedding business to serve same-sex weddings or close down. And many view these conscientious objectors as evil bigots who inflict gratuitous harm on same-sex couples—as bad actors opposed to the good.
It has been difficult to protect conscientious objectors to same-sex marriage even under current law. Guarantees of religious freedom underdeliver, as Schmitz says. They underdeliver because too many Americans are too quick to override religious freedom in pursuit of other interests. Now imagine adding to the existing difficulties a requirement that the court or other decision-maker affirm each prohibited religious practice as true and good. Protection for conscientious objectors to same-sex marriage would become impossible.
Marriage is only the most obvious example. Here’s another. Under existing law, clergy and other employees in positions of religious leadership cannot sue their churches for most forms of alleged discrimination. This body of law is fully enforced and does not underdeliver. It ensures that judges and juries from outside a faith do not second-guess church authorities in evaluating how key personnel are performing their religious duties—that outsiders do not reinstate underperforming or misbehaving clergy. Many churches use this protection wisely to make informed religious judgments, but inevitably there are mistakes and abuses. Many scholars and activists who know of this rule, and many ordinary Americans when they hear about it, see it as a cover for widespread discrimination and arbitrary power. They think that what it protects is neither true nor good.
The task of defining religion presents similar problems. Religion as a protected legal category must be distinguished from other belief systems and activities that are sometimes analogous, overlapping, or conflicting—politics, secular ideology, philosophy, science, commercial enterprise. The concepts may seem clear, but like the difference between day and night at dawn and dusk, the boundaries are fuzzy. Fortunately, most claims to religious freedom are clearly religious; the problem is more theoretical than practical. Yet however we draw the boundaries in the close cases, the definition of religion cannot be based on whether the religious claim is true and good. That leads back toward the worst days of protecting the one true faith and persecuting all the others.
At one point, Schmitz seems to claim only, or principally, that protection for religious freedom cannot be absolute. He is certainly right about that. The Supreme Court, on one of its better days, said that freedom to believe is protected absolutely, and that freedom to act is protected but not absolutely. The reason is that, unlike belief, action can harm others directly and immediately. The necessary limits on freedom to act must be defined in terms of harm to be prevented—not in terms of whether the religious practice is good, and certainly not in terms of whether the underlying religious belief is true. Substantial harm is a narrower, more protective, and more discernible criterion.
Schmitz opens his essay with three examples of religious claims that he would not protect: a public display by the Satanic Temple, a Black Mass at Harvard, and the hate-filled anti-gay speech of the Westboro Baptist Church. I suspect that his objection to these examples is not so much that what they express is not true or good, but that they are extreme and horrible. Those are difficult criteria to administer.
More fundamentally, each of these examples presents a free-speech issue. Changing the law on religious freedom or the definition of religion would not affect the outcome in any of these disputes. And if Schmitz wants to reserve free-speech protection to the expression of what is true and good, he is proposing a much bigger revolution than I realized.
Two of the examples illustrate further ambiguities. The only defense for the Westboro Baptist Church is that it has a right to say the hateful things it says. Harvard and the Satanic Temple are more complex. The Seven Fundamental Tenets of The Satanic Temple do not promote either Satan or evil. They are a mix of secular humanism, libertarianism, and what, if it were embedded in a different belief system, we might well call Christian charity. Styling itself “Satanic” is a foolish provocation that garners much attention for the organization and deprives it of all influence. Is it also deprived of any claim to freedom, because the label it has chosen is neither true nor good? Or had their non-theism already deprived the organization and its members of any claim to freedom?
Harvard is not legally required to protect either speech or religion; it protected the Black Mass because it chose to. I admire its principled stand for free speech, but I fear that it might respond differently to conservative Christian speech rejecting the self-understanding of some sexual minority. Harvard would view that speech as not true and not good, and it would have more sympathy for the sexual minority than for the religious minority. The only hope for conservative religious speakers is that Harvard’s commitment to free speech should in principle, and might well in fact, override its sympathies. A principled commitment to protecting “the speech that we hate,” as the Supreme Court has often said, is a powerful protection for minority groups of all kinds, including conservative Christians.
If religious freedom extended only to the true and the good, religious minorities could not survive. Outsiders will always view minority teachings as not true, and often as not good. And in the United States, there is no religious majority; we are all minorities now. Every religion is at risk of becoming the regulatory target of some opposing interest group or coalition with more political clout.
Instructing our judges to protect the false, and to protect the bad until it becomes intolerable, just because the particular false and bad at issue is someone’s religious belief or practice, is a very imperfect protection. But it is an essential one. Religious freedom does indeed protect the right to be wrong.
Douglas Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia.
Image by Lorie Shaull via Creative Commons. Image cropped.
