Religious Freedom’s Legal and Moral Basis

Religious freedom, which includes protection of conscience rights more generally, has been a core principle in our nation’s history since even before the official founding of the United States. Many of America’s first European settlers came here in search of religious freedom. Some of the world’s first experiments in genuine religious toleration happened in the American colonies. And freedom of religion, together with freedom of conscience, was a central concern of America’s founding fathers. Thomas Jefferson, for example, declared, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” George Washington himself likewise said, “The conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be extensively accommodated to them.” And James Madison, a key defender of religious freedom and author of the First Amendment, said: “Conscience is the most sacred of all property.”

The right to religious freedom is enshrined in our Constitution. The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note that the Constitution says nothing about the separation of church and state. Indeed, at the time of the founding many states had established churches and the first half of the First Amendment—the prohibition on laws “respecting an establishment of religion”—is best understood historically as forbidding the federal government from tampering with any state laws regarding religious establishments. Today, as we’ve seen, that establishment clause is often read in a way that would make any public references to God or religion illegal—just think of the cases trying to strike “under God” from the Pledge of Allegiance—and even make it illegal to accommodate religious organizations providing important social services, as in the Massachusetts case I discussed yesterday about the government contract for the United States Conference of Catholic Bishops’ services to human trafficking victims. But that’s far from the original meaning of the clause.

Nonetheless, there are good and important aspects of establishment clause jurisprudence. A recent example is the Hosanna-Tabor case, in which the Supreme Court reaffirmed the “ministerial exemption,” which allows religious organizations to hire the ministers they want without having to worry about anti-discrimination laws. The government ought to stay out of the internal affairs of religious organizations—they shouldn’t, for example, have any say in who gets to be made bishop or who is appointed pastor of the local church. That’s one interpretation of the establishment clause that is good and valid, and that helps to safeguard religious freedom. The Health and Human Services mandate runs afoul of the establishment clause because it’s telling religious organizations how to carry out their ministry, and also because the extremely narrow exemption is treating some religious organizations as more religious than others, imposing an arbitrary government definition of what counts as “religious.”

The other aspect of the First Amendment’s protection for religious liberty is the free exercise clause: “Congress shall make no law … prohibiting the free exercise [of religion].” This means that it’s unconstitutional for the government to make it illegal for you to practice your faith unless there’s an extremely good reason—unless, say, your faith requires you to engage in human sacrifice or in acts of terrorism. This right also can be understood to protect freedom of conscience more broadly, even when unconnected to a specific organized religion. The HHS mandate, and many of the other affronts to religious liberty that I’ve mentioned, clearly run afoul of the first amendment in this regard as well.

In addition to the First Amendment to the Constitution, there is also a federal law—called the Religious Freedom Restoration Act (RFRA), passed by a bipartisan majority and signed into law by President Clinton—which provides additional legal support for religious freedom. RFRA states that the government can only burden religious exercise when there’s a compelling state interest at stake, and when the policy is the least-restrictive means of achieving that interest. This law currently applies only to the federal government, although many states have enacted state-RFRAs of their own. At any rate, the law does apply to the HHS mandate, which is an action of the federal government, and the mandate clearly fails to meet the test. The mandate is uncontroversially a burden on religion—a $2,000-per-employee fine per year for failing to comply (i.e., Catholic Charities has 70,000 employees nation-wide, so that means a whopping $140 million in fines each year)—and even if you accept the claim that the interest at stake is compelling, the means chosen are clearly not the least burdensome available. The government could easily give all women free access to contraceptives without conscripting religious employers into doing it for them.

Moral Basis for Religious Freedom

Many people mistakenly think that the basis for religious freedom is relativism. On the relativistic view, there’s really no truth in matters of religion; it’s just about opinions or preferences or feelings. Or if there is a truth on religious matters we really can’t know it. So we should let people do what they want. Religion on this view is like your favorite ice cream flavor, or, perhaps better, like your career choice; some religions suit some people better, other religions suit others better. And that’s that.

But that’s not the true basis for religious freedom. In fact, if religion were just a preference or a lifestyle choice, as many people think it is, that would take away the main reason for giving it special protection. Perhaps the treatment of religion as a hobby is precisely the reason why people are now having a hard time understanding why infringements on religious freedom are a big deal, or why people with religious objections have a right to exemptions.

The true basis for religious freedom, the reason why religious freedom is a moral right, and not just a legal right granted to us by the government, is that as human beings we have a grave obligation to seek the truth, and to follow the truth as we understand it. As John Henry Newman famously said, “conscience has rights because it has duties.” “Conscience,” according to Newman, “is a stern monitor,” not an excuse to do what we feel like, as it is often treated today.

Conscience rights go to the core of what it is to be a human person: the capacity to act based not only on desires or instincts, but on judgments about what is good and bad, right and wrong—and the moral responsibility that is inseparable from that capacity. To force a person to act contrary to conscience is to force him to violate his moral integrity. It is an assault on the person at his core, much worse than any merely physical harm. (For more on this point, see my previous Public Discourse article, “Taking (Conscience) Rights Seriously.”) That is why heroic individuals—including the many martyrs we venerate in the Church, and even our nation’s founders—have chosen to risk or suffer deprivation, imprisonment, and even death rather than compromise on matters of conscience. Such individuals are inspirations to us all. But the governments they lived under are not.

That’s why America’s founders were so adamant about the protection of religious liberty and conscience rights as fundamental to a free and just society. And that’s why the Religious Freedom Restoration Act gets things exactly right when it forbids the government from burdening religious practice unless there really is no other way to achieve a genuinely compelling state interest.

Conclusion

So where does this leave us? It is clear that there are grave, serious, and growing threats to religious freedom in our nation today. It is clear that it’s no exaggeration to claim that religious freedom is under fire. To preserve our rights and the rights of every citizen, we need to make our voices heard. Ignorance and complacency are our worst enemies.

James Madison offered some words of advice to his fellow patriots after the Revolution that are as relevant today as they were then:

It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.

In other words, we cannot wait until our liberties are irrevocably lost before we start fighting to protect them. And when we fight for religious freedom—peacefully and respectfully, but without compromising our principles—we are both giving to Caesar what is Caesar’s, and giving to God what is God’s. Genuine love for our country requires us to be courageous and stand up in defense of our most fundamental right to freedom of religion.