Action Alert!

Religious liberty: A bad political tactic?

By Dr. Jeff Mirus ( bio - articles - email ) | Nov 22, 2022

It concerns me that we seem so often tempted by the US Constitution to try to protect ourselves against patent injustice by invoking the claims of religious liberty. In his recent post on the Respect for Marriage Act, A Congressional assault on religious freedom, Phil Lawler cited and concurred with Cardinal Timothy Dolan’s statement that, as written, it appears that the Act will be interpreted to trump the religious liberty of those whose religions hold that marriage can only be a union between one man and one woman. In that sense, as Phil’s title indicates, the Act is an assault on religious freedom.

Both Cardinal Dolan and Phil Lawler are correct; I certainly do not disagree. My problem is that neither am I very fond of the argument. In the United States religious liberty is a Constitutional issue which can sometimes be used effectively to secure relief for those who are actually attempting to adhere to the truth. But for all that, any commonwealth is in a sorry position if it must advert to “religious liberty” in order to tolerate those who only want to uphold the natural law. In other words, this is a makeshift argument using makeshift political tools. If it works, fine. But if so, it will be primarily for cultural reasons rather than because good government requires a recognition of reality, period, full stop.

In this sense, arguments which prohibit the coercion of some people in some things because of their religious beliefs are extraordinarily weak, and can even be used to permit evil. If my religion holds that men may marry dogs, this is no adequate justification for permitting me to marry a dog and file a joint tax return. Similarly, if other people wish to marry dogs, it is not an adequate civil response to allow it with exemptions for those whose religion teaches that dogs are not marriage material.

Tactics vs. truth

I do not mean to imply that it is wrong to take advantage of theoretically irrelevant points of political leverage in order to secure one’s safety or even the larger socio-political good. The only thing that bothers me is that arguing issues like this on the basis of religious liberty is already a concession to those who deny reality. The odd forms of “marriage” which our political representatives wish to justify and protect today are not wrong because they violate this or that religious belief, especially in a very confused world which recognizes an astonishingly large number of religions as equally legitimate. This recognition, after all, is one of the most important reasons that the allegedly “modern” mind dismisses religion as legitimate only as mere sentiment, and wants it kept out of objective realities like politics.

In other words, most arguments for religious liberty imply that, when it comes to religion, reality is not the issue, but rather religious liberty is to be honored within reason simply to enhance the security and contentment of the citizenry. The result is a political compromise among people of differing religious beliefs, and within just limits it can even be a sensible compromise, permitting a diversity of religious people to live together in peace. We are all aware of the divisions of the Christian world which led to reflection on the degree of liberty to be afforded to those with differing religious convictions. But the actual moral principle involved when it comes to public law is still relatively simple. The principle is that religious beliefs can be accommodated within the bounds of prudence when those beliefs do not violate the natural law, which is knowable by all; but that they cannot be accommodated when those beliefs do violate the natural law.

This, by the way, is the Church’s own teaching on religious liberty, famously enunciated in its clearest official form in Dignitatis humanae at the Second Vatican Council. The Council explained that religious liberty is rooted in the dignity of the human person as created by God, and known through reason, to be naturally disposed to seek and know the truth. Religious liberty is therefore to be protected by every culture and government “provided that just public order be observed” (#2). Later, the same point is made about religious communities (#4). And of course, in the exercise of religious liberty individual persons and social groups “are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all…to deal with their fellows in justice and civility” (7).

In the current situation of the West, of course, historical circumstances have shaped the observance of religious liberty. As long as the culture generally observed the basic principles of moral reality as known through the natural law, it was possible to secure liberty in the practice of various religions within this fundamental moral and social framework. But since the natural law itself has been dismissed as essentially just another funny religious belief, that general framework for personal virtue, social life and politics is now in question.

And that is a serious problem.

The corruption of religious liberty

There are two ways to know about God. The first is studying and reasoning about nature, for nature is highly ordered, bespeaks a creator, and inescapably opens us to moral principles, beginning with reverence, fairness and the importance of treating other persons and things in accordance with the ends proper to each. The second is through the discovery, if any, of Divine Revelation, for such a revelation may be studied to know God better, to learn how He wants us to act and for what ends, and to do His will.

But the problem with religious liberty today is that its essential connection with God, as known through nature and Revelation, has been obscured to the point where religious liberty is associated with whatever random ideas a person wishes to assert rather than with a serious inquiry into what we can learn from nature or from an identifiable revelation from God Himself. In other words, both human confusion and religious conflict have thrown modern politics not only into despair but into a deliberate refusal to seriously engage the obligation to study (as the American founders put it some 250 years ago) nature and nature’s God—let alone any Revelation that God may have offered with appropriate signs of Divine verification.

Clearly the entire concept of religious liberty has been corrupted and even rendered ludicrous by our personal, social and political responses to the very things that ought to have bolstered it: First, the dictates of the natural law (which self-evidently, if it exists, comes from the Creator) and, second, the claims of Divine Revelation (insofar as this can reasonably be identified through accompanying signs that genuinely suggest an authentic Divine origin). Beyond these once-compelling factors, and stemming from them, is the need to preserve a certain liberty for the human inquiry into the nature of God and the possibility of Revelation, because without a reasonable freedom to make mistakes—in keeping with the needs of a just order—the human person cannot arrive at any interior affirmation of the Truth.

Now, however, “religious liberty” is mostly regarded—with little understanding—as simply a method of avoiding intolerable conflicts among competing religious groups. At the same time, those in positions of power consider it their honorable duty to confine religious expression (as a matter of mere sentiment) so that it cannot interfere with their ever-changing moral projects, divorced as they are from legitimate convictions rooted in natural law or revelation. After all, unchaining whichever wayward human desires seem to be in vogue at the moment is the hallmark of today’s politics. As a whole, our culture is falling back into a kind of secular paganism, in which undisciplined human desires are combined with diabolical temptations in order to subvert whatever in human culture has been heretofore linked to God, Jesus Christ, the Catholic Church, or the true and the good.

The weakness of the argument

This is what makes the political use of religious liberty arguments a double-edged sword. Without a proper understanding of what constitutes the natural law and Divine Revelation—and therefore a proper understanding of what constitutes legitimate religion—it is impossible to get past the very spare argument that people ought to be free to inquire into truth and, even if they may not always be allowed to follow “their” truth wherever it leads them, at least we ought to try as much as humanly possible not to force them to act contrary to their religious convictions. Unfortunately, stated this way, the argument is not only without significant moral weight; it is also positively harmful.

That is why I regard religious liberty arguments as dangerous today. I understand that we Americans have a religious liberty provision in our Constitution, and this makes religious liberty the basis of a valid legal and political argument. Similar convictions have been generally recognized or even encoded in various enumerations of human rights in Europe and elsewhere, again producing at least a broad outline for legal and political arguments. But the problem is that, as commonly viewed, religion is utterly without any foundational authority, without any claim beyond idiosyncrasy. If the dominant culture rejects the concepts of both natural law and Divine Revelation, the only argument in favor of religious freedom is that government ought to be forbearing to immature individuals who wish to indulge their pet delusions as long as they neither interfere with nor even argue against anything that the dominant secular culture wishes to pronounce to be both legal and good.

The dominant assumption now is this: Certainly those who wish to act in any manner approved by the beneficent power of the State must be able to do so without any delusional citizens daring to cast aspersions on whatever it is they have chosen to do.

My first point here is that the argument for religious liberty is probably the weakest argument possible in a predominantly Godless society, or even in a society which believes religion is a purely private sentiment which ought not to be allowed to place any restrictions on the common good. In view of the dominant culture’s understanding of “religion” today, the argument for religious liberty is so weak and tenuous that it will be further weakened in the public mind each time it is used. In other words, its continued use in the United States as a matter of Constitutional law—absent any proper understanding of the importance and scope of both natural law and Divine Revelation—can only be increasingly regarded as a cheap Constitutional trick serving the sentimental self-interest of bigots.

Shouldn’t we go down swinging?

The same is true not only in the United States but also at least throughout the West, and certainly in many other places that have never enjoyed any understanding of the principles of religious liberty at all. When it comes to politics, it is a far sounder argument to emphasize the reality of the natural law and the need for every government to be constrained by it. This, at least, is an argument that still has visible legs, even if most people are unaware of them.

I grant that far more people have come to appreciate the natural law through Judaism and Christianity than in any other way. After all, the Ten Commandments are the most succinct statement of the natural law ever written. The problem is that the argument from religious liberty seeks simply to mitigate the personal impact of disastrous laws on particular groups which feel they need that protection. The argument from the natural law says, far more plainly and to the point, that any human law that is contrary either to natural or Divine law is immediately null and void. Period.

It seems to me that this is not only the battle that must be won, but the battle that is most worth fighting. I understand that in political matters it is very valuable to use arguments others will recognize to express opposition to proposed enactments. Political leaders not infrequently succeed or fail in their agendas based on the persuasiveness of their rhetoric. And there is still, I grant, some marginal understanding of the benefits of religious liberty. But I would argue that in the dominant culture “religious liberty” is becoming less an argument than an admission of personal peculiarity. Natural law arguments may now be somewhat easier to make.

Let me explain. The argument from religious liberty today is essentially the argument that I must be free to follow my own muse without being forced to soil myself in the business of others. Again, as a general statement, this argument has no legs, and shouldn’t have any. But the argument from the natural law says instead that behavior X is contrary to what we can know objectively to be the good; moreover the evil consequences of violating the natural law are or ought to be obvious and demonstrable to everyone.

I also grant that neither argument will very often work any longer in our culture, which is in a state of ideological collapse, and I further grant that the religious liberty argument is typically used to protect Christians from being forced by law to engage in actions they regard as evil—which is a different focus from preventing society as a whole from being soiled by the law. But I am convinced that whenever the religious liberty argument is used today it is essentially an admission of failure as well as a reason for the principle of religious liberty to be further weakened in the public mind.

Isn’t it much better to go down swinging, and with a real bat? That is really what I am proposing for consideration here.

Jeffrey Mirus holds a Ph.D. in intellectual history from Princeton University. A co-founder of Christendom College, he also pioneered Catholic Internet services. He is the founder of Trinity Communications and See full bio.

Sound Off! supporters weigh in.

All comments are moderated. To lighten our editing burden, only current donors are allowed to Sound Off. If you are a current donor, log in to see the comment form; otherwise please support our work, and Sound Off!

  • Posted by: charliej3737012 - Nov. 29, 2022 1:23 PM ET USA

    Excellent point! I was dubious about RFRA in the 90's because it was absurd that statutory law should be used to confirm Constitutional imperatives. To do so undermined the entire Constitutional superstructure. In effect, it said, "Okay, we're serious about this Constitutional right." And the rest of them? Similarly, I disliked religious exemptions for covid shot mandates. I was exempt because I am an American citizen, a free man. That was enough.

  • Posted by: Randal Mandock - Nov. 24, 2022 6:17 AM ET USA

    The demise of Western culture as a whole, as distinct from previous national, regional, or continental failures, began within the last century due to the ascendancy of Modernism. First the removal of the Christian God as a singular, proximate Creator and Sustainer, then the piece-by-piece negation of the natural law. The latter was most blatantly revealed by "good Catholics" in the atheistic Inquisition against Robert Bork. A decade of papal "drifting" demonstrates rejection of the natural law.

  • Posted by: henrywwatlington3977 - Nov. 23, 2022 4:11 PM ET USA

    There is a lack of sufficient appreciation for the weight of history surrounding the issue of the legal recognition/creation of civil same-sex marriages. Anglo-American Protestantism began in earnest with a repudiation of canon law by the English State, a legal redefinition of marriage, and eventually a religious one as well (a schism). All of this is to say: I think the CATHOLIC Church can reach an accomodation with American State that is theologically and politically mutually satisfactory.

  • Posted by: miketimmer499385 - Nov. 23, 2022 10:12 AM ET USA

    I like it. I have offered parallels to people in my circle in regard to vaccine mandates where I believe the religious argument to be the weaker defense.