In the pre-Islamic period, the practice of female infanticide was widespread in much of Arabia, but it was immediately forbidden through Islamic injunctions. Several verses of the Quran were revealed that prohibited this practice to protect the rights of the unborn and of the newborn child: “When the female infant, buried alive, is questioned for what crime was she killed; when the scrolls are laid open; when the World on High is unveiled; when the Blazing Fire is kindled to fierce heat; and when the Garden is brought near; Then shall each soul know what it has put forward. So verily I call” (81: 8-15). Indeed, there are many verses in the Quran that remind us of the sanctity of life. We are told that “Wealth and children are an adornment of this life” (18:46), and we are commanded to “Kill not your children for fear of want: We shall provide sustenance for them as well as for you. Verily the killing of them is a great sin” (17:31).

While the religious injunctions reverberate through faith on a spiritual level, the blessings of life touch us daily on a worldly level, as well. As the mother of three beautiful children, I can truly attest to and appreciate the gift of life. But I also understand how heartbreaking it is to lose it.

I want to share with you the story of how I came to realize life’s fragility and the importance of making the most of our spiritual journeys here on earth. Over thirteen years ago, my husband and I were eager to start our family. We were ecstatic when, a few months shy of our first anniversary, we found out that we were expecting. Very early on, we began playing the “new parent” planning game, picking out names and nursery colors even before our first doctor’s appointment.

A few months into the pregnancy, the doctor scheduled a routine ultrasound. Giddy with excitement, we entered the darkened room and waited in great anticipation to see our child. There on the screen—fuzzy, yet discernible—we could see our baby’s outline. We imagined the features and jokingly guessed who the baby might look like. But the ultrasound technician did not laugh with us. As she solemnly stared at the screen, we followed her gaze. As inexperienced as we were, we could tell that something was not right: our baby had no heartbeat.

After losing my first child, I truly began to understand the meaning of life. When the heartbeat we’d heard so clearly on the Doppler suddenly ceased, our baby’s life ended in the womb, before he or she even had a chance to begin in the outside world.

But strong faith and an unshakeable belief in a just God is a great formula for filling any emotional void. As the Quran states in Verse 156 of Surat Al-Baqara, there are great blessings for those “who, when a misfortune overtakes them, say: ‘Surely we belong to God and to Him shall we return.’” Losing our first baby led to a deeper appreciation of God’s magnificence and the miracle of His creation.

Several months later, we found out we were expecting again. This time, the excitement was tempered with worry. Our first ultrasound came much earlier in the pregnancy, and we eagerly scanned the screen for the telltale beating before glancing at fingers and toes or eyes and nose. And there it was, strong and steady! We breathed a sigh of relief. Our baby was alive.

As the months of this second pregnancy progressed and the baby bump grew larger, we began to hope. Each ultrasound revealed a little more of our child and each kick confirmed that this time we were really going to begin our family. As the due date quickly approached, we felt more confident in choosing baby items and room colors. We even chose the name for our baby girl. Her name would be Jennah, which means Heaven in Arabic.

With just a few weeks left before my scheduled delivery date, I went into labor. As we sped to the hospital and I was wheeled into the darkened ultrasound room, out of habit, my eyes went directly to the heart area on the screen that I knew all too well by now. That tiny heart, which I had sought out so many times in the previous ultrasounds, had stopped beating.

That day, so many years ago, I delivered Jennah, my stillborn daughter; and that day we buried Jennah. We hadn’t known how fitting her name would really be. As the infection that had ended the pregnancy sped through my blood in the days that followed, I recognized just how delicate life really is. Nothing can bring life into perspective as much as loss. And nothing can affirm faith as much as life.

Today, as I look at my three beautiful children, I know that God is good. No, God is great, or in Arabic, Allahu Akbar. And what gives me the greatest solace in times of trial is the verse in the Quran that states: “It may be that you detest something which is good for you; while perhaps you love something even though it is bad for you. God knows, while you do not know” (2:216).

As Muslims, we believe in the power of life to change others, and we believe even more in the power of God. In any disaster, in any calamity, and in the face of any death, we are urged to repeat “inna lilah wa inna ilayhee raji’un”—“To God we belong and to Him we return.” In the end, only He knows what is best for us.

I could share with you so many stories from the Hebrew Bible, the New Testament, and the Quran that illustrate the power of God in our lives: the creation of Adam, the patience of Job, the perseverance of Noah, the purity of Joseph, the judiciousness of Solomon, the trials of Jonah, the obedience of Abraham, the wisdom of Moses, the devotion of Jesus, and the inspiration of Mohamed. I could share these stories with you, but they are available to all in the Holy Scriptures.

Instead, I want to share with you the story of an amazing woman whom I met recently at a conference. This woman truly exemplifies the spirit of respecting life. Melinda Weekes had recently returned from a trip to the Sudan, where she was helping to enact a policy of slave redemption. For years and years, a rampant genocide was perpetrated in southern Sudan by the wealthy slave traders of the north. They would pillage and torch the mud huts of the villagers, and then capture the women and children to sell them into slavery.

Heartbroken by what was happening in Sudan, this woman traveled across the world to help free these slaves by buying them back from the traders and returning them to their villages. Upon their return, she helped them rebuild their lives by establishing schools and educating their girls so that they could break free from oppression. Describing the strength of these women in the face of modern-day slavery, Melinda shared story after story of the things she had seen on her trips to Sudan. She spoke of one of the most powerful experiences she had had, when she sat with a woman who had lost her home, her husband, and her children, and had suffered incredible harm at the hands of her slave master. She asked the woman, “How do you survive? How do you manage to continue living?” The woman responded, “When the world pushed me down to my knees, I knew that it was time to pray. I am blessed to still have these old knees that allow me to kneel, blessed to be able to prostrate, blessed to be able to pray. And I am blessed because I have God.”

I ask you today to reflect on women like these, to reflect on their inner strength, and to reflect on your own life as you know it. I ask you to accept life as a gift and to understand that your life belongs to a greater power, to a higher authority that breathed life into your soul at your beginning and decreed that you should live it with good morals, good ethics, and a good heart that can truly make a difference in the lives of those around you.

In the memorable words of Mother Theresa:

Life is an opportunity, benefit from it.
Life is beauty, admire it.
Life is a dream, realize it.
Life is a challenge, meet it.
Life is a duty, complete it.
Life is a game, play it.
Life is a promise, fulfill it.
Life is sorrow, overcome it.
Life is a song, sing it.
Life is a struggle, accept it.
Life is a tragedy, confront it.
Life is an adventure, dare it.
Life is luck, make it.
Life is too precious, do not destroy it.
Life is life, fight for it.

I’d like to end with a prayer, a Muslim ayah (verse 286 from Suratul Baqara) from the Quran:

On no soul doth God place a burden greater than it can bear. It gets every good that it earns, and it suffers every ill that it earns. (Pray:) Our Lord! Condemn us not if we forget or fall into error; Our Lord! Lay not on us a burden like that which Thou didst lay on those before us; Our Lord! Lay not on us a burden greater than we have strength to bear. Blot out our sins, and grant us forgiveness. Have mercy on us. Thou art our Protector; help us against those who stand against faith.

I ask you today once again to respect life, for there is no greater gift. Respect life, yours and the lives around you. For when we lose respect for life, we lose respect for humanity, and when we lose respect for humanity, we lose respect for God’s creation, and when we lose that, we have lost everything.

Suzy Ismail is a Visiting Professor at DeVry University in North Brunswick, New Jersey and is the author of When Muslim Marriage Fails: Divorce Chronicles and Commentaries. This article is adapted from remarks made in the Princeton University Chapel for Respect Life Sunday.

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Though they are not alone, the most obvious culprits are some of my fellow Roman Catholics. It is pretty serious when a Catholic says, “I am personally opposed to same-sex unions; nonetheless, I will not only support such unions, but I will sponsor the bill to make it happen.” Most people would automatically, and reasonably, come to the conclusion that such a person is not being honest: he is neither personally opposed, nor following the faith he professes. For this person, “personally opposed” must have a very peculiar meaning, unshared by most of the population.

Such an accusation rankles the fervent “personally opposed” devotee, because he sincerely believes that his is the proper course of action. His argument about marriage, for example, tends to look something like this: Civil marriage is completely different from religious marriage. If a religion thinks it is proper to keep marriage between one man and one woman, that is no concern of civil authorities. Similarly, religion has no authority to say what civil marriage is. Since it is a purely civil affair, it must be ruled by purely civil laws, especially the Constitution’s Equal Protection clause. The push for same-sex unions and polygamy, then, is just a case of providing equal rights.

Let us leave aside the question of whether these statements accurately reflect the faith tradition in which our “personally opposed” friend claims membership. (Catholic teaching, for example, holds quite the opposite: that as a natural institution, marriage is the union of one man and one woman.) If you are truly opposed, yet you truly believe that the Constitution will not permit your position to be enshrined in law, then your task is to change the law—including, if necessary, the Constitution—to reflect what you believe to be the truth for human beings and the best for society. At the very least, your duty is to not exacerbate the situation.

Yet our “personally opposed” congregant operates according to a strange moral arithmetic in which his professed moral stance is canceled out by current law, to the point that he is not even permitted to try to change the law. These people are then left to follow a lesser law as though it is an absolute. It is as though they feel the need to do something, and since their own vision of the good has been stymied, they start working to forward someone else’s vision of the good.

What could so definitively stop their acting on their own asserted beliefs, according to their own conscience, that they are compelled to act according to someone else’s conscience? For, if we take them at their word, that is what they are doing. The claim seems to be that no one who believes something to be right or wrong based on a faith-claim or based on someone else’s authority may act and vote according to his or her own conscience. One person put it to me this way: “Please spare me the lecture about natural law. We live in a multi-faith democracy and not a theocracy. Catholics do not, under our system of government, get to dictate what kind of marriage non-Catholics can have.”

This is a strange argument, for several reasons.

First and most obvious, this argument is utterly at odds with the long-standing tradition in this nation of opposition to the status quo (e.g., to slavery, to Jim Crow laws, to war, to the death penalty, to immigration or economic policy), grounded precisely on religious moral principles.

Second, faith is not opposed to reason. Many people are nervous about any claim rooted in faith, because they take faith to be something opposed to reason. It is not. Faith is an act of trust in the sobriety and authority of the person who bears witness to certain news. This puts our “personally opposed, but …” acolytes in an uncomfortable position, for there is no one who does not believe in many things based on the authority and testimony of others. We cannot possibly go about rediscovering every claim in science, history, and philosophy. We all accept many things on testimony and authority, without direct and independent evidence. We cannot thereby rule out such testimony and authority when it comes to making public policy.

Third, the natural law is not, in itself, a matter of faith. It has been with us in one form or another since before Plato and Aristotle. It is the basis for the entire Anglo-American legal system (although many practitioners within that system have been influenced by legal positivism). Admittedly, many faith traditions accept some version of natural law. Admittedly, many of the faithful accept the natural law based on the authority of others. But that does not mean that the natural law is itself an article of faith, since many accept it without any reference to faith.

Fourth, the argument abuses the notion of theocracy. The Founding Fathers took certain truths to be not faith-based but self-evident, available to any reasoning person—including the claim that we are endowed with inalienable rights by our Creator. They also believed, by and large, that a religious citizenry is the only possible grounding for a working self-government. If this is theocracy, then the United States has been a theocracy since its inception, and working toward a solution according to faith-based principles of right and wrong is not only clearly constitutional, but also expected of every caring citizen. If, on the other hand, the Founding Fathers did not found a theocracy, then the Constitution clearly affords us the wherewithal to accommodate both religious freedom and a robust application of our moral beliefs to the law.

Furthermore, in our system, members of any faith could tell everyone what marriage is—if they have the votes. What they certainly would not do is tell others what to believe or how to worship.Freedom of conscience and of worship is a fundamental human right that is part of the truth about the human person and preexists the law, and the law must recognize and defend that freedom in order to have any claim to legitimacy. However, when it comes not to thoughts and beliefs but to human actions with public consequences, law must have something to say, and therefore the people who are ruled by the law must have something to say, as well, no matter what their faith tradition or lack thereof. In that regard, a majority of Americans, when given the opportunity to vote, demonstrates a belief that there is a truth about the human person and human marriage that preexists human law and that human law must respect, if it is to be fully justified.

There are other possible interpretations of “personally opposed” that some might think could justify the “but.” We might remember that the Massachusetts Supreme Judicial Court, in its Goodridge decision (2003) accepting same-sex “marriage,” denied its own long-established precedent, quoting the United States Supreme Court’s Casey decision (1992) in support of its conclusion that morality could no longer be considered a rational ground for law. In that ruling, we find this passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

At first glance, this passage is merely a defense of freedom of thought, but given its context as a defense of the abortion regime, it is so much more. Taken to its logical conclusion, it affirms that, to be a person, one has to be able to decide for oneself what is important and then act on it. Just having the right to decide for myself who counts as a person is not enough; I must be able then to kill those I find do not measure up, lest I have no liberty, and thus no personhood. In the marriage context, it apparently means that, whatever I believe or want marriage to be, it can be that, and the law is powerless against my desires.

This is a passage that goes beyond utilitarianism. John Stuart Mill and his followers held that human beings are only fulfilled in the pursuit of pleasure and the avoidance of pain, and that the way to maximize pleasure is to allow as much liberty as practical so that people may pursue these ends. But even Mill thought that one’s right to swing one’s own arm ended at someone else’s nose. There are no such brakes on one’s actions in the “heart of liberty” passage. Taken literally, the passage demands that the law never forbid an action if there is any disagreement about its justification. Since there will always be someone who disagrees, there really can never be laws about anything. In such a world, the powerless are at the mercy of the powerful.

Those in favor of such an expansive version of liberty, and thus an expansive version of marriage and sexuality, seem to recognize this fact and use it to their advantage over those who think that civil law and ordered liberty are grounded in some truth about human beings and moral law. This latter group continues to believe that there are such things as human rights that preexist the civil law, including rights to freedom of conscience and worship. Thus, they tend to respect these rights in those with whom they disagree—that is, they tend to a certain level of tolerance.

The former group, while ostensibly extolling tolerance, cannot tolerate that which threatens their own practices of liberty, including points of view that oppose their own. Such thoughts become the crime of hate speech. Many across the globe, and an increasing number in this country, are facing the wrath of these lovers of pure liberty (for themselves).

Under such a regime, only the conscience of one side can be tolerated. All opposing consciences must be silenced. Today, the intolerant have not simply silenced a surprising number of opposing consciences; they have convinced those silenced people to join with them, and rejoice at the opportunity. As we have shown, such people are either dishonest about their opposition or mightily confused. But make no mistake: when the apostles of the “heart of liberty” come to full power, the “but” is not going to save you if you are “personally opposed.”

Stephen J. Heaney is Associate Professor of Philosophy at the University of Saint Thomas in Saint Paul, MN.

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This development came to mind when reading Ryan Anderson’s recent admonition, published here in Public Discourse, that conservatives should pay more attention to social justice. Anderson identifies two concerns about capitalism: First, capitalism tends to promote materialism, which corrupts culture and morals. Second, though capitalism benefits the poor more than non-capitalist systems, there remains the question whether the prosperity that capitalism has created is distributed justly. Anderson invites conservatives to consider what obligations individuals might have in justice to share their wealth.

Anderson’s challenge is well-timed. Material inequality is presently a hot topic, with good reason. And he is right that the champions of economic freedom can do more to affirm the obligation that each of us has to provide for the least well-off. One wonders, is it possible to challenge both the collectivist practices that have impoverished Cubans (and millions of others) and the radical individualistic claims that are often invoked in support of free economic institutions?

It seems that any account of how to improve our system of free enterprise ought to begin by observing what we already do well. The United States, for all of its faults, is a generous nation. Set aside the aid and development assistance that the United States government spreads around the world. Look merely at the actions Americans take through our private associations and institutions. To take just a few examples, American-based non-profits fight slavery and sex trafficking; build sustainable drinking water resources in impoverished villages; provide micro-finance loans to the world’s deserving poor; create educational opportunities for under-privileged urban youth; and visit those in prison. American individuals, foundations, and corporations gave nearly $291 billion in 2010, despite the hard times. Of this, $211.77 billion came from individual donors. More than a quarter of Americans over the age of 16 are reported to have volunteered through or for organizations, and in 2009 volunteers contributed service worth approximately $169 billion.

If social justice is primarily a matter of equal distribution of resources, then why do Communist nations such as Cuba do so little, by comparison, to promote justice? (Are there in Cuba any such organizations as those listed above?) On the other hand, it seems equally clear that a defense of free markets is not the same as a defense of justice. Charity is not a market exchange.

These are obvious facts, but one must sometimes call obvious facts to mind. Here’s another fact that bears observing: all of the organizations enumerated above, and many others like them, are faith-based institutions, run and financed by people who take religious teachings as true and obliging. They are members of faith communities, who subject their own preferences to moral truth claims, and submit in varying degrees to the authority of clergy, religious teachers, and traditions. They sacrifice in some degree their individual autonomy for the sake of some good greater than themselves. They are, in short, communal beings who act through communal means for common goods.

This observation suggests an answer to the materialism that lurks within capitalism, and which threatens the good that capitalism has achieved. If free institutions protect only the rights of the individual to pursue his own material comfort, then they are difficult to reconcile with the demands of justice. But viewed as communal institutions that serve truly common goods—ends that are both good for all and known to all, though realized in plural and incommensurable varieties—free institutions can act as vehicles of both opportunity and justice. Indeed, they might render obsolete the trench warfare between the individual and the state that pervades much contemporary public discourse about questions of justice.

Take, for example, the institution of private property. If property is viewed through the usual lens, it distends in tension between the individual preferences of property owners and the collective good of the greatest number. On this view, property must either free the individual to pursue whatever he finds subjectively satisfying, or instead sacrifice the individual’s property rights for the sake of some greater societal end. Both of these options are troubling. Property rights proponents rightly excoriate collectivist approaches to property, in which the rights and interests of some property owners are sacrificed for a greater collective good, often to the benefit of the wealthy and well-connected. This logic was on display in the Supreme Court’s decision in Kelo v. City New London, which upheld the taking of a private citizen’s home to make way for a redevelopment plan, the primary beneficiaries of which were to be Pfizer and private developers. The means were unjust and contrary to the constitutional text, and the end used to justify the means, renewed economic prosperity, never materialized.

On the other hand, state interference in property looks more attractive to many people as the gap between rich and poor grows wider, and particularly as opportunities for the poor become fewer. Some wonder why property rights should protect consumption at the expense of one’s neighbors. A particularly galling abuse is strategic default, in which a homeowner who owes more than his house is worth (and in many cases purchased more house than he needed and could prudently afford), but is able to make payments on his mortgage, nevertheless defaults in order to avoid the loss. In states that do not permit lenders to seek recourse against the defaulting mortgagor in his personal capacity, that mortgagor walks away from his obligation without cost to himself. His neighbors bear a cost, however, in depressed real estate values.

What if property could serve truly common goods, which are reducible neither to individual preferences nor to the collective decisions of political bodies? Property, in the central case, is neither an atomistic nor a collectivist institution. Indeed, when it is working at its best, property does much to promote human flourishing, enabling property owners to realize common goods both for themselves and for their families and communities. Communities pursue goods that are truly good for all, the value of which is knowable by all. Property, understood as a communal institution, can and should serve these goods.

In order to work properly, property must to a large extent be a free and independent institution. The private charity described above would not be possible if citizens were not free to exercise sovereignty over their assets. And something equally valuable would be lost, as well. Charity makes a difference not only to the material condition of the recipient but also to the moral condition of the donor herself; it makes the donor a different sort of person. But the charitable act could not have this effect upon the charitable person if it were coerced. One who is required by law to give to another is not making the other person a reason for her action. She has not established a moral connection with the recipient.

On the other hand, the law need not recognize rights to use assets to satisfy whatever desires individuals happen to have, particularly where those satisfactions cause harm. Property is properly directed, at least to some extent, toward ends that the community identifies as worthwhile and away from ends that the community perceives as harmful. Freedom to do good things with one’s property need not conflict with the obligation to act rightly toward one’s neighbors.

All of this suggests a way forward on questions of social justice. A successful account of social justice must affirm the primacy of communities, and institutions directed by communities, over both the individual and the state in promoting human flourishing. The job of the individual in promoting social justice is to act in concert with others in his or her community to serve real needs, both within the community and in other communities. The job of the state is to support and enable free institutions—the church, the family, property ownership, charitable organizations, for-profit businesses, trade groups—to do their good work. This perhaps is not all that social justice requires, but it is a good place to start.

Adam MacLeod is an Associate Professor at Faulkner University’s Thomas Goode Jones School of Law.

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First, the areas of agreement: O’Brien and I agree that human beings have a definite nature, that this nature implies a certain final end for human beings, and that human actions are morally right or wrong depending on whether they are ordered as means to that end. We further agree that human nature was created by God, who ordains human nature to its final end and commands us to attain that end. Thus, by acting well, we perfect our nature and obey and please God, but by acting badly, we act contrary to our nature and disobey and displease him. A complete moral theory therefore involves God in various important ways, including in giving a full description of the final end (which involves contemplating God) and in explaining the nature of moral obligation (which involves obeying Him).

Moreover, O’Brien and I also agree that, notwithstanding the foregoing, in treating many ethical issues we can avoid referring to God. I believe that this is possible because we can work from a description of the final end that theists and atheists can both accept as being true as far as it goes (e.g., that the end is rational activity in a community of goodwill) and then consider the relationship of actions to that end.

O’Brien and I disagree about whether, having restricted our premises in this way, we can show that there are some actions that are always wrong, regardless of the circumstances. I think this can be done; O’Brien thinks it cannot.

Before going into why we disagree, it’s worth recalling why, in a eudaimonistic system, some actions are always wrong. The reason is that, for at least some ends, there are actions that are never ordered as means to those ends, regardless of the circumstances in which the action is chosen. For instance, if the end is winning a baseball game, intentionally walking in the winning run in the bottom of the ninth is never ordered to the end. Hence, given a description of the final end, if there are some actions that are never ordered to that end, these actions will be always wrong. In a eudaimonistic system, therefore, claims that certain actions are always wrong are based on claims about the causal structure of the world—claims that certain causes will not have certain effects, regardless of the circumstances.

Now, in an earlier article, O’Brien had argued that, in order to demonstrate that certain actions ought never be done, “you need to be able to appeal to God’s legislation of the moral law.” This is not so, and the reason is that God’s legislation does not affect the causal structure of the world, does not change which actions are ordered to which ends. Hence, unless we are adopting some kind of divine command theory of morality, an absolute divine prohibition on a certain kind of action will not help explain why such actions are always wrong. Given a kind of action, either such actions are never ordered to the final end, or else sometimes they are. If such actions are never ordered to the final end, then for exactly that reason such actions are always wrong, and there is no need to rely on a divine prohibition to ground their wrongness. On the other hand, if such actions are sometimes ordered to the final end, then God would not absolutely prohibit them, for it would be senseless to prohibit such actions in those circumstances in which they are actually ordered to the final end, and God does nothing senselessly. Hence, I stand by the conclusion in my earlier article that bringing in divine prohibitions does not help us explain why some actions are always wrong.

But as O’Brien ably shows in his latest article, God can figure in moral theory in various ways, not just as a legislator. Thus, in this article O’Brien has a quite different argument about why we need God to show that certain actions are always wrong. He writes that, if we bracket the existence of God, “it is difficult to see how the final end could be specified determinately enough to demonstrate that certain kinds of injustice, such as intentionally killing the innocent, could never be chosen in order to advance the final end.”

Now, this seems to be an attractive line of argument, for it is true that the less definitely the final end is specified, the more difficult it becomes to show that certain actions are wrong. The assumption, however, is that complete ethical theories that mention God give very definite descriptions of the final end (thus supporting arguments that some actions are always wrong), but that these descriptions are weakened and made vague when we re-describe the final end more generally to avoid mentioning God (with that result that such arguments no longer go through).

This, however, is simply not the case. In his full-blown and expressly theological ethical theory, Aquinas describes the final end as “the vision of the divine essence” (Summa Theologiae Ia-IIae.3.8), which is surely a much grander thing than my “rational activity in a community of good will,” but it hardly provides a more determinate basis for explaining why certain actions are always wrong. Indeed, in explaining why intentionally killing the innocent is always wrong, Aquinas has but the briefest and simplest of arguments: he merely says that the lives of the innocent conserve and promote the common good (and so the attainment of the final end), and that therefore killing them is always wrong (Summa Theologiae IIa-IIae.64.6). This argument makes no use whatsoever of the theological character of the final end, and so such an argument is quite as open to me with my definition of the final end as it was to Aquinas with his. If it suffices for him, it suffices for me as well.

Of course, O’Brien will say that it does not suffice, that such arguments prove not that killing the innocent is always wrong, but only that it is generally so. We still have to worry about the extreme cases, like the bombing of Hiroshima and Nagasaki, in which killing the innocent seems to advance the final end. What are we to say about such cases?

As Aquinas’s argument about killing the innocent suggests, the description of the final end employed—whether it be theological or not, and regardless of its specificity—is largely irrelevant. For, no matter how the end is specified, we can always invent sufficiently bizarre circumstances such that, in those circumstances, performing the action reputed to be always wrong will in fact advance the end.

For instance, take Aquinas’s ethics, in which the final end is the vision of the divine essence, and then assume that, if I but kill this one innocent man, untold millions will receive the grace of repentance and so come to share the beatific vision in heaven, thus greatly glorifying God. (Indeed, if he had had more insight into the Scriptures, Caiaphas might have seen himself as being in precisely this situation.) In such a case, killing the innocent seems to advance this fully theological final end. Or again, I said above that walking in the winning run in the bottom of the ninth is never the way to win a baseball game. But what if I know that the opposing team has been cheating, that the man at bat has a bad conscience about it, and that, if I walk him in, he will be overcome with remorse and will confess the whole scheme, with the result that the umpires will declare that the cheating team has forfeited the game and my team wins after all? In such circumstances, walking in the winning run actually wins the game for my team.

The problem with such examples, just as with the Hiroshima and Nagasaki problem, is that they trace the consequences of our actions too far. Only philosophers think that I am responsible for all the foreseeable consequences of my actions, and thus that all of these consequences must be taken into account in determining whether my action advances the final end. Normal people realize that my responsibility is more circumscribed. Which consequences of my action are properly attributed to me—and so count in determining whether my action advances the final end—and which consequences are too remote is an extremely difficult question. The answer in any particular case will depend heavily on the particular facts, but saying that all foreseeable consequences count goes too far.

There is a clear parallel in the law, for there is an immense body of legal doctrine concerning what lawyers call proximate causation, the whole purpose of which is to determine for which of the consequences causally following from his actions a defendant may be held liable. (See Prosser & Keaton on Torts, §§ 41-45.) Although, in general, defendants are responsible for the reasonably foreseeable consequences of their actions, as when a man who builds a fire on his own property on a windy day is held liable when the wind carries the fire to his neighbor’s house, this is not always the case. One clear exception is that defendants are not generally liable for the intentional wrongdoing of others, even when such wrongdoing is a reasonably foreseeable consequence of the defendant’s action, the idea being that the subsequent wrongdoer is the responsible party.

This principle, incidentally, suffices to dispatch the Hiroshima and Nagasaki problem: President Truman’s dropping the bomb should be evaluated taking into account its natural and inevitable consequences—such as the death of thousands of innocents—but not taking into account other consequences that are properly chargeable to others, such as the deaths of even more thousands of innocents who would have been killed in an American invasion of the Japanese home islands. Those deaths, had they occurred, would have been the responsibility not of Truman but of the Japanese authorities, who wrongfully resisted American forces waging a just war. It is a mistake, therefore, to count them in considering whether Truman’s action advanced the final end.

As I said above, determining for which consequences of his actions an agent is responsible (and thus which consequences need be counted in determining whether the agent’s action advances the final end) is a vexed question about which it is extremely difficult to generalize. But merely pointing out the existence of this question suffices, in a general way, to solve the puzzle of how, in a eudaimonistic system, certain actions can be said to be always wrong. To wit, to show that an action is always wrong, we need not show that such actions never advance the final end, including in the most bizarre circumstances; we need show only that such actions do not advance that end in normal and usual circumstances—that is, in all cases except those in which the advancement of that end would be beyond the responsibility of the agent. Under that standard, it becomes fairly easy to justify the proposition that intentionally killing the innocent—that is to say, murder—is always wrong.

Robert T. Miller is a Professor of Law at Villanova University, and as of August 2012 he will be a Professor of Law and Sandler Faculty Fellow of Corporate Law at the University of Iowa.

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In her new book, American Individualism: How a New Generation of Conservatives Can Save the Republican Party, Margaret Hoover renews this argument. (The book’s title and inspiration derive from a booklet of the same name by Hoover’s great-grandfather, Herbert Hoover.) Here she argues that the Republican brand is damaged because social conservatives appear to dominate the party, which “has caused millennials to tune us out.” Hence Hoover writes with two aims: to convince Republicans that millennials—roughly anyone born between 1980 and 1999—are not a “lost cause,” and to convince millennials that they should give Republicans another hearing. But to appeal to this audience’s alleged hostility to the third leg of the stool, Hoover feels compelled to pull out her pocketknife and sharpen it.

According to Hoover, the three-legged stool’s fusionism emerged as a response to a common enemy: Communism. In a post-Communist era, Hoover argues that a new fusionism must rally under the banner of fiscal discipline, which, when embedded in “rugged individualism”—a sort of individual freedom quickened with “community spirit”—can appeal to the millennial generation. Hoover applies this framework in a wide-ranging tour through contemporary American policy debates.

Millennials and conservatives alike will welcome Hoover’s powerful case against “generational theft.” Millennials are rather like latecomers to a posh dinner party thrown by their parents and grandparents. After a nibble of dessert and a sip of leftover Dom Perignon, they find the party deserted and are left stuck with the tab. The growing realization among millennials that they will be footing today’s welfare state bill for many years to come means they are ready to embrace a program of fiscal sanity. And given their widespread sense that almost anything can be customized to their individual needs, Hoover persuasively argues that their natural home is the party that has coupled spending, tax, and entitlement reform with an emphasis on individual choice and responsibility in health-care plans, retirement savings, and education. Moreover, Hoover reminds us that the events of 9/11 were formative for millennials and made them vividly aware that American values are in the crosshairs. Republicans are well-situated to remind millennials that, while we are emphatically not at war with Islam, we are at war with radical Islamist supremacists.

But what should we make of her call for Republicans to “emphasize economic values and deemphasize social issues”? Hoover contends that only this decision will help Republicans avoid being perceived as a “fire-and-brimstone party.” While Hoover’s tone might strike the reader as moderate, her message for social conservatives is loud and clear: stop talking about abortion and marriage, and get with the program.

Hoover labels abortion a “second-tier issue,” as if it didn’t concern the most fundamental questions of justice and the common good. Surely this is an odd assertion for someone claiming to champion the dignity of the individual person. Some scholars would trace Hoover’s libertarian-like “rugged individualism” (however tempered by a weak-sauce “community spirit”) back to the individualism of Hobbes and Locke, the “founders” of modern liberalism. Whatever the merits of that pedigree of liberalism, Hobbes and Locke agree with Aquinas on at least this point: a necessary feature of any just government will be the protection of all human beings within its jurisdiction from arbitrary acts of violence. So when Hoover parrots the platitude of being “personally prolife but politically pro-choice” as if it were the pragmatic, reasoned alternative to “absolutist” positions, one wonders whether she has really thought her position through. Either the genetically distinct, self-moving, self-integrating, individuated human being in the womb is a person and hence deserving of basic equal protection of the laws from arbitrary acts of violence—or he or she is not a person, in which case, on what grounds would one be “personally” prolife? To be “personally” prolife necessarily entails being “politically” prolife, or it is nonsense.

The relevant polling data suggests that millennials are more prolife than their parents. Fifty-eight percent of millennials believe abortion is “morally wrong” while 74 percent favor at least some legal restrictions on abortion. Notably, millennials are now the demographic most likely to believe abortion ought to be illegal in all circumstances. If anything, the character of the new generation suggests that the GOP shouldn’t mute its pro-life credentials if it wants to win.

Given Hoover’s emphasis on fiscal discipline, one might have expected for her to call for some kind of truce on marriage. Instead, Hoover dismisses arguments that favor protecting marriage in a few paragraphs and spends a chapter citing familiar “marriage equality” arguments. She concludes that the legal recognition of same-sex unions as marriages is entirely consistent with Republican principles of maximizing individual freedom and equal opportunity. Hoover thinks that millennials will find these arguments appealing because of their more libertarian leanings on economic and sexual issues. Let us abstract for the moment from the abundant social science evidence documenting the positive benefits for civil society of traditional marriage (and the likelihood that the exponential rise in federal spending to fight poverty since the 1960s has been ineffective because policymakers have failed to see that poverty is often a symptom of the breakdown of the traditional family). Still, why should it follow that Republicans have an imperative to recognize same-sex unions in the law as marriages?

Millennial libertarianism suggests that there is still wide agreement across the generations that the government has no business regulating most of our intimate friendships. (To see the point, we need only reflect for a moment on the absurdity of the government issuing chess-buddy licenses and specially protecting permanent and exclusive chess-buddy unions or analogous friendships.) But if true, the burden would be on the government to justify the importance of singling out a new form of friendship for special protection and benefits. A centuries-old tradition of law picked out opposite-sex unions for the good reason that such unions were the kind that produce children. What could be more to the common good than what John Rawls called the “orderly reproduction of society over time”? The burden rests on same-sex marriage proponents to justify the creation of a new entity in law as a requirement of the common good.

As far as I can make out, Hoover’s justification is that the current law denies equality. Yet Hoover makes no effort to explain what marriage is, and so we have no idea whether anyone’s equal rights have been violated when some unions are denied the status of marriage. Still, through the emotive morass of argumentation, one can discern that Hoover thinks marriage is or ought to be something like “any two consenting, committed persons who love each other.” Now who is denying equality? Why does justice only require the recognition of dyadic unions? This is not a slippery-slope question but a matter of principle, if we are talking about protecting the equal rights of all—including the equal rights of people in loving, committed polyamorous relationships.

At any rate, it is not clear that Hoover’s gaze into the crystal ball really reveals that millennials are the crest of the tide of history, inevitably hurtling us toward gay marriage. With millennials favoring the legalization of gay marriage by a 50 percent to 36 percent margin, with the remainder undecided (according to a Pew Research Center study), the future seems rather more ambiguous. The challenge for Republicans is not self-censorship, but to articulate and defend marriage as an essential aspect of the common good.

Hoover set out to hew off the Republican Party’s social conservative leg to gain a hearing with millennials, but instead of offering serious arguments that demonstrate precisely where prolife and traditional marriage arguments fail, she offers quick and easy slogans and emotional anecdotes. These offerings may reaffirm the prejudices of some readers, but it is doubtful that anyone who has reflected seriously on these matters will be persuaded.

Deirdre Cooper is a millennial and Public Policy Analyst for Texas Alliance for Life.

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But Father de Lubac knew that optimism and hope are very different creatures. In real life, bad things happen. Progress is not assured, and things that claim to be “progress” can sometimes be wicked and murderous instead. We can slip backward as a nation just as easily as we can advance. This is why optimism—and all the political slogans that go with it—are so often a cheat. Real hope and real joy are precious. They have a price. They emerge from the experience of suffering, which is made noble and given meaning by faith in a loving God.

A number of my friends have children with disabilities. Their problems range from cerebral palsy to Turner’s syndrome to Trisomy 18, which is extremely serious. But I want to focus on one fairly common genetic disability to make my point. I’m referring to Trisomy 21, or Down syndrome.

Down syndrome is not a disease. It’s a genetic disorder with a variety of symptoms. Therapy can ease the burden of those symptoms, but Down syndrome is permanent. There’s no cure. People with Down syndrome have mild to moderate developmental delays. They have low to middling cognitive function. They also tend to have a uniquely Down syndrome “look”—a flat facial profile, almond-shaped eyes, a small nose, short neck, thick stature, and a small mouth which often causes the tongue to protrude and interferes with clear speech. People with Down syndrome also tend to have low muscle tone. This can affect their posture, breathing, and speech.

Currently about 5,000 children with Down syndrome are born in the United States each year. They join a national Down syndrome population of about 400,000 persons. But that population may soon dwindle. And the reason why it may decline illustrates, in a vivid way, a struggle within the American soul. That struggle will shape the character of our society in the decades to come.

Prenatal testing can now detect up to 95 percent of pregnancies with a strong risk of Down syndrome. The tests aren’t conclusive. They can’t give a firm yes or no. But they’re pretty good. And the results of those tests are brutally practical. Studies show that more than 80 percent of unborn babies diagnosed with Down syndrome now get terminated in the womb. They’re killed because of a flaw in one of their chromosomes—a flaw that’s neither fatal nor contagious, but merely undesirable.

The older a woman gets, the higher her risk of bearing a child with Down syndrome. And so, in medical offices around the country, pregnant women now hear from doctors or genetic counselors that their baby has “an increased likelihood” of Down syndrome based on one or more prenatal tests. Some doctors deliver this information with sensitivity and great support for the woman. But, as my friends know from experience, too many others seem more concerned about avoiding lawsuits, or managing costs, or even, in a few ugly cases, cleaning up the gene pool.

In practice, medical professionals can now steer an expectant mother toward abortion simply by hinting at a list of the child’s possible defects. And the most debased thing about that kind of pressure is that doctors know better than anyone else how vulnerable a woman can be in hearing potentially tragic news about her unborn baby.

I’m not suggesting that doctors should hold back vital knowledge from parents. Nor should they paint an implausibly upbeat picture of life with a child who has a disability. Facts and resources are crucial in helping adult persons prepare themselves for difficult challenges. But doctors, genetic counselors, and medical school professors should have on staff—or at least on speed dial—experts of a different sort.

Parents of children with special needs, special education teachers and therapists, and pediatricians who have treated children with disabilities often have a hugely life-affirming perspective. Unlike prenatal caregivers, these professionals have direct knowledge of persons with special needs. They know their potential. They’ve seen their accomplishments. They can testify to the benefits—often miraculous—of parental love and faith. Expectant parents deserve to know that a child with Down syndrome can love, laugh, learn, work, feel hope and excitement, make friends, and create joy for others. These things are beautiful precisely because they transcend what we expect. They witness to the truth that every child with special needs has a value that matters eternally.

Raising a child with Down syndrome can be demanding. It always involves some degree of suffering. Parents grow up very fast. None of my friends who has a daughter or a son with a serious disability is melodramatic, or self-conscious, or even especially pious about it. They speak about their special child with an unsentimental realism. It’s a realism flowing out of love—real love, the kind that forces its way through fear and suffering to a decision, finally, to surround the child with their heart and trust in the goodness of God. And that decision to trust, of course, demands not just real love, but also real courage.

The real choice in accepting or rejecting a child with special needs is never between some imaginary perfection and imperfection. None of us is perfect. No child is perfect. The real choice in accepting or rejecting a child with special needs is between love and unlove; between courage and cowardice; between trust and fear. That’s the choice we face when it happens in our personal experience. And that’s the choice we face as a society in deciding which human lives we will treat as valuable, and which we will not.

Nearly 50 percent of babies with Down syndrome are born with some sort of heart defect. Most have a lifelong set of health challenges. Some of them are serious. Government help is a mixed bag. Public policy is uneven. Some cities and states provide generous aid to the disabled and their families. In many other jurisdictions, though, a bad economy has forced very damaging budget cuts. Services for the disabled—who often lack the resources, voting power, and lobbyists to defend their interests—have shrunk. In still other places, the law mandates good support and care, but lawmakers neglect their funding obligations, and no one holds them accountable. The vulgar economic fact about the disabled is that, in purely utilitarian terms, they rarely seem worth the investment.

That’s the bad news. But there’s also good news. Ironically, for those persons with Down syndrome who do make it out of the womb, life is better than at any time in our nation’s history. A baby with Down syndrome born in 1944, the year of my own birth, could expect to live about 25 years. Many spent their entire lives mothballed in public institutions. Today, people with Down syndrome routinely survive into their 50s and 60s. Most can enjoy happy, productive lives. Most live with their families or share group homes with modified supervision and some measure of personal autonomy. Many hold steady jobs in the workplace. Some marry. A few have even attended college. Federal law mandates a free and appropriate education for children with special needs through the age of 21. Social Security provides modest monthly support for persons with Down syndrome and other severe disabilities from age 18 throughout their lives. These are huge blessings.

And, just as some people resent the imperfection, the inconvenience, and the expense of persons with disabilities, others see in them an invitation to learn how to love deeply and without counting the cost.

Hundreds of families in this country—like my young friends in Denver, Kate and JD Flynn—are now seeking to adopt children with Down syndrome. Many of these families already have, or know, a child with special needs. They believe in the spirit of these beautiful children, because they’ve seen it firsthand. A Maryland-based organization, Reece’s Rainbow, helps arrange international adoptions of children with Down syndrome. The late Eunice Shriver spent much of her life working to advance the dignity of children with Down syndrome and other disabilities. The Anna and John J. Sie Foundation committed $34 million to the University of Colorado to focus on improving the medical conditions faced by those with Down syndrome. And many businesses, all over the country, now welcome workers with Down syndrome. Parents of these special employees say that having a job, however tedious, and earning a paycheck, however small, gives their children pride and purpose. These things are more precious than gold.

The Nobel Peace Prize winner Albert Schweitzer once wrote that, “A man is truly ethical only when he obeys the compulsion to help all life which he is able to assist, and shrinks from injuring anything that lives.” Every child with Down syndrome, every adult with special needs; in fact, every unwanted unborn child, every person who is poor, weak, abandoned, or homeless—each one of these persons is an icon of God’s face and a vessel of His love. How we treat these persons—whether we revere them and welcome them, or throw them away in distaste—shows what we really believe about human dignity, both as individuals and as a nation.

The American Jesuit scholar Father John Courtney Murray once said that “Anyone who really believes in God must set God, and the truth of God, above all other considerations.”

Here’s what that means. Catholic public officials who take God seriously cannot support laws that attack human dignity without lying to themselves, misleading others, and abusing the faith of their fellow Catholics. God will demand an accounting. Catholic doctors who take God seriously cannot do procedures, prescribe drugs, or support health policies that attack the sanctity of unborn children or the elderly, or that undermine the dignity of human sexuality and the family. God will demand an accounting. And Catholic citizens who take God seriously cannot claim to love their Church, and then ignore her counsel on vital public issues that shape our nation’s life. God will demand an accounting. As individuals, we can claim to believe whatever we want. We can posture, and rationalize our choices, and make alibis with each other all day long—but no excuse for our lack of honesty and zeal will work with the God who made us. God knows our hearts better than we do. If we don’t conform our hearts and actions to the faith we claim to believe, we’re only fooling ourselves.

We live in a culture where our marketers and entertainment media compulsively mislead us about the sustainability of youth, the indignity of old age, the avoidance of suffering, the denial of death, the nature of real beauty, the impermanence of every human love, the oppressiveness of children and family, the silliness of virtue, and the cynicism of religious faith. It’s a culture of fantasy, selfishness, sexual confusion, and illness that we’ve brought upon ourselves. And we’ve done it by misusing the freedom that other—and greater—generations than our own worked for, bled for, and bequeathed to our safekeeping.

What have we done with that freedom? In whose service do we use it now?

John Courtney Murray is most often remembered for his work at Vatican II on the issue of religious liberty, and for his great defense of American democracy in his book, We Hold These Truths. Murray believed deeply in the ideas and moral principles of the American experiment. He saw in the roots of the American Revolution the unique conditions for a mature people to exercise their freedom through intelligent public discourse, mutual cooperation, and laws inspired by right moral character. He argued that—at its best—American democracy is not only compatible with the Catholic faith, but congenial to it.

But he had a caveat. It’s the caveat that George Washington implied in his Farewell Address, and that Charles Carroll—the only Catholic signer of the Declaration of Independence—mentions in his own writings. In order to work, America depends as a nation on a moral people shaped by their religious faith, and in a particular way, by the Christian faith. Without that living faith, animating its people and informing its public life, America becomes something alien and hostile to the very ideals it was founded on.

This is why the same Father Murray who revered the best ideals of the American experiment could also write that “Our American culture, as it exists, is actually the quintessence of all that is decadent in the culture of the Western Christian world. It would seem to be erected on the triple denial that has corrupted Western culture at its roots: the denial of metaphysical reality, of the primacy of the spiritual over the material, [and] of the social over the individual . . . Its most striking characteristic is its profound materialism . . . It has given citizens everything to live for and nothing to die for. And its achievement may be summed up thus: It has gained a continent and lost its own soul.”

Catholics need to wake up from the illusion that the America we now live in—not the America of our nostalgia or imagination or best ideals, but the real America we live in here and now—is somehow friendly to our faith. What we’re watching emerge in this country is a new kind of paganism, an atheism with air-conditioning and digital TV. And it is neither tolerant nor morally neutral.

As the historian Gertrude Himmelfarb observed more than a decade ago, “What was once stigmatized as deviant behavior is now tolerated and even sanctioned; what was once regarded as abnormal has been normalized.” But even more importantly, she added, “As deviancy is normalized, so what was once normal becomes deviant. The kind of family that has been regarded for centuries as natural and moral—the ‘bourgeois’ family as it is invidiously called—is now seen as pathological” and exclusionary, concealing the worst forms of psychic and physical oppression.

My point is this: Evil talks about tolerance only when it’s weak. When it gains the upper hand, its vanity always requires the destruction of the good and the innocent, because the example of good and innocent lives is an ongoing witness against it. So it always has been. So it always will be. And America has no special immunity to becoming an enemy of its own founding beliefs about human freedom, human dignity, the limited power of the state, and the sovereignty of God.

A friend of mine has a son with Down syndrome, and she calls him a “sniffer of souls.” I know him, and it’s true. He is. He may have an IQ of 47, and he’ll never read The Brothers Karamazov, but he has a piercingly quick sense of the people he meets. He knows when he’s loved—and he knows when he’s not. Ultimately, I think we’re all like her son. We hunger for people to confirm that we have meaning by showing us love. We need that love. And we suffer when that love is withheld.

These children with disabilities are not a burden; they’re a priceless gift to all of us. They’re a doorway to the real meaning of our humanity. Whatever suffering we endure to welcome, protect, and ennoble these special children is worth it because they’re a pathway to real hope and real joy. Abortion kills a child; it wounds a precious part of a woman’s own dignity and identity; and it steals hope. That’s why it’s wrong. That’s why it needs to end. That’s why we march.

Never give up the struggle that the March for Life embodies. No matter how long it takes, no matter how many times you march—it matters, eternally. Because of you, some young woman will choose life, and that new life will have the love of God forever.

The great Green Bay Packer theologian, Vince Lombardi, liked to say that real glory consists in getting knocked flat on the ground, again and again and again, and getting back up—just one more time than the other guy. That’s real glory. And there’s no better metaphor for the Christian life. Don’t give up. Your prolife witness gives glory to God. Be the best Catholics you can be. Pour your love for Jesus Christ into building and struggling for a culture of life. By your words and by your actions, be an apostle to your friends and colleagues. Speak up for what you believe. Love the Church. Defend her teaching. Trust in God. Believe in the Gospel. And don’t be afraid. Fear is beneath your dignity as sons and daughters of the God of life.

Changing the course of American culture seems like such a huge task; so far beyond the reach of this gathering today. But St. Paul felt exactly the same way. Redeeming and converting a civilization has already been done once. It can be done again. But we need to understand that God is calling you and me to do it. He chose us. He calls us. He’s waiting, and now we need to answer him.

Charles J. Chaput, O.F.M. Cap., Roman Catholic Archbishop of Philadelphia, is the author of Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life. This essay is adapted from a lecture Archbishop Chaput delivered this past weekend at the Cardinal O’Connor Conference on Life.

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After King was arrested for parading without a permit, he took a moment, from the confines of his jail cell, to pen a response to his fellow clergymen and offer a justification for his resistance to segregation ordinances. Like any civically minded lawbreaker, King faced vexing moral and philosophical questions from the outset: how did he know whether a law was just or unjust, and when, if ever, was it morally permissible to disobey? In his now-celebrated “Letter from Birmingham City Jail,” King’s answer was that “a just law is a manmade code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.” “To put it in the terms of St. Thomas Aquinas,” King explained, “an unjust law is a human law that is not rooted in eternal and natural law.”

Those who praise the modern civil rights movement, but who also want to keep morality and theology absent from public discourse, seldom mention King’s reliance on natural law in his justly famous letter. Scholars such as the late John Rawls were at great pains to show how their thoroughly secularized theories of justice and public reason could make room for King, but in fact they could do so only at the cost of minimizing the seriousness of King’s argument. The son and grandson of Baptist preachers, King had studied the Western philosophical tradition while completing his doctorate in philosophical theology at Boston University, and his defense of civil disobedience drew from the work of Thomas Aquinas in particular.

Human ordinances, Aquinas argued in his Treatise on Law, can be contrary to the human good—and therefore unjust—by way of their end, author, or form. The first mode of legal injustice, according to this schema, is a law designed to bring about private gain at the expense of other members of the community. Otherwise benign laws can also be terribly unjust if made by someone without legitimate lawmaking authority or enforced in an illegitimate or partial manner. King, of course, had in mind Jim Crow laws when he spoke of legal injustice, but the concrete examples he marshaled in his letter followed the general contours of Aquinas’s natural law theory.

First, King suggested, “a code that a majority inflicts on a minority that is not binding on itself” is unjust, because the end of the law is some private good rather than the good of the community. Second, “a code inflicted upon a minority which that minority had no part in enacting or creating because they did not have the unhampered right to vote” is unjust, because such a law, in a republican regime, was made by an illegitimate authority. The final mode of legal injustice—and perhaps most obvious given King’s arrest for marching without a permit—was “a law just on its face and unjust in its application.” There was of course nothing wrong with requiring permits for marches, but it was unjust, King thought, to specifically deny permits to civil rights protesters in an attempt to silence their message.

Following Augustine and Aquinas, King famously claimed that unjust laws were no laws at all. Rather, they were acts of violence and usurpations of law that damaged the human good and failed to instill a moral responsibility to obey. And yet even in the face of legal injustice, Aquinas cautioned great prudence and forbearance when deciding whether to engage in disobedience. For the sake of avoiding scandal or the breakdown of public order, Aquinas taught, it may be appropriate in many circumstances to simply suffer injustice. Aquinas’s thought on this point seems to be that the good of individuals and communities will often be more secure under an imperfect but stable order than in a broken, unstable, and scandalized community.

Theological concepts play an important supplementary role in King’s case for overcoming the heavy prudential burden against civil disobedience. After offering specific examples to demonstrate why Jim Crow laws were unjust in end, author, and form, King suggested that these laws were also unjust in a much more fundamental sense. Even if some of the procedural aspects of justice were fulfilled, King insisted, these laws would remain “morally wrong and sinful,” because, as he argued, “Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.”

Although the reference to human personality here may seem a bit out of place, King’s comments were rooted in a tradition of philosophical personalism, which emphasized the personal—rather than material—nature of ultimate reality. Under the tutelage of Edgar Sheffield Brightman, Harold DeWolf, and other philosophical personalists at Boston University, King came to believe that ultimate reality was necessarily personal. The philosophy to which King was exposed in Boston buttressed his belief in a personal God, which he had long ago developed as a child growing up in the Christian church. In fact, the “two greatest formative influences on King’s thought and action,” King’s Pulitzer Prize–winning biographer David Garrow notes, were “the biblical inheritance of the story of Jesus Christ, and the black southern Baptist church heritage into which King was born.”

King was, first and foremost, a pastor, nurtured in the Christian tradition and sharpened by his encounter with the classic texts of Western philosophy. His description of segregation ordinances as “morally wrong and sinful” occurred within a theological framework, and his justification of civil disobedience was indebted to the tradition of natural law philosophy. Indeed, the cogency and persuasiveness of King’s letter depend on such controversial and contested theological and philosophical claims.

These aspects of King’s letter provide a challenge to modern theorists who would, as a matter of principle, scrub the public sphere clean of all philosophy and theology. Lest their insistence on a naked public square appear to be merely an unprincipled attempt to silence conservative moral and religious arguments, they must reluctantly exclude much of King, as well. Attempts to erase or diminish King’s theological and philosophical commitments will not do, for although he was famous for declaring that he had a dream, we sometimes forget that his dream was of a world in which “every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight.” One of the most famous passages of King’s most famous political speech comes verbatim from the fortieth chapter of the book of Isaiah, and the original context was a prophetic vision of one preparing the way for the political rule of God.

King is of course the kind of historical figure that practically everyone wants to claim as his own. Reality, however, is often complex, and the truth about King is that his primary motivations, his most fundamental commitments—the very core of his thought—were rooted in a worldview repugnant to many of those who now claim his legacy. Despite his personal failings, many of which have come to light in the years since his assassination, we should remember King for who he was: an imperfect man and a Christian pastor who, in the best tradition of American politics, fought for justice by appealing to a law higher than the state while respectfully and thoughtfully engaging his interlocutors on the principles of a just political order.

Justin Dyer is an assistant professor of political science at the University of Missouri and author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press). Kevin Stuart is a political consultant at Teddlie Stuart Media Partners in New Orleans, LA and a graduate student at the University of Texas at Austin.

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The decision was, strikingly, unanimous: no one disagreed with Chief Justice Roberts’s opinion for the Court. The only separate opinions were concurring ones, suggesting further extensions or specific applications of the Court’s reasoning. On a Court that has often been bitterly divided, this expression of unanimity is truly remarkable.

The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.

Consider for a moment, point by point, what makes Hosanna-Tabor so praiseworthy:

First, the Court specifically grounded the so-called “ministerial exception” to employment discrimination laws in an affirmative First Amendment constitutional right of religious organizations to select their own faith leaders and exemplars, free of government interference. The “ministerial exception” originated in a series of lower court decisions, beginning forty years ago, reading into federal anti-discrimination employment statutes an implied exception for a church’s hiring (and firing) of ministers. The exception had the feel of judge-made law, carving out of the law as written an unwritten escape hatch (of indeterminate breadth) for churches and synagogues. The lower courts then struggled with how to apply an unwritten statutory exception, creating all the problems, in principle and practice, common to legal rules seemingly made up by judges as they go along, in disregard of the text.

Hosanna-Tabor was the Supreme Court’s first case involving the “ministerial exception.” The justices might have chosen to embrace the exception on a more namby-pamby, “we-construe-the-statute-in-such-a-way-as-to-avoid-the-possibility-of-its-creating-constitutional-difficulties” approach—not exactly embracing a constitutional rule but adopting an awkward rule of interpreting statutes in such a way as to avoid possible constitutional problems. (The Court has done this a fair bit, including in the religious freedom context.) Chief Justice Roberts’s opinion would have none of that: the right embraced in Hosanna-Tabor is a First Amendment constitutional right.

This right is not a judge-made interpolation into a statute; it is not a rule of construction; it is not an avoidance of deciding a constitutional question. It is a right supplied “by the text of the Constitution itself.” Hosanna-Tabor is a constitutional holding that where the Constitution supplies one rule (here, that religious groups have the right to hire and fire, free from government interference, those who personify and represent their faith communities, as an aspect of the free exercise of religion) and a statute supplies a contrary rule (that government generally may regulate employment practices, for example, to forbid practices it considers discriminatory), the Constitution’s rule trumps the statute’s. This is straight, old-fashioned, Marbury v. Madison-style judicial review: the Constitution is law and prevails over inconsistent statutes, to whatever the extent of the inconsistency. There is nothing judge-made, narrow, ad hoc, or uncertain about this. Hosanna-Tabor is a rule of First Amendment constitutional law.

Second, the rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. The “ministerial exception” label really ought to be discarded, for it is now something of a misnomer, a relic of the pre-Hosanna-Tabor, lower court-developed doctrinal approach. Rather, the right should be understood as the “religious autonomy right”—an “exception” to nothing but a principle of its own.  For it is clear from the Court’s opinion that this right of autonomy embraces more than just the hiring of “ministers,” narrowly defined. The plaintiff who had sued Hosanna-Tabor Evangelical Lutheran Church and School was not a pastor in the traditional sense but a teacher in a religious school, teaching secular and religious subjects, but designated by the religious community as a minister.

This counts, the Court said. The principle established by the First Amendment is that a religious group has the “right to shape its own faith and mission through its appointments” and thus has plenary “control over the selection of those who will personify [its] beliefs.” This includes teachers, lay leaders, and persons who perform a mix of religious and seemingly “secular” functions. The right extends to those whom a religious community, operating under its own system of rules, designates as central to its religious mission and identity. The Court’s one-word descriptor perhaps says it best: those persons that the community identifies as personifying its religious identity. The Court decided only the case before it, but it made clear that the right itself is one of religious community autonomy, broadly understood. It is not a right limited to pastors alone.

This interpretation has important consequences beyond direct employment regulation through anti-discrimination laws. Student religious groups, at state university campuses and at public schools, are religious communities, too. So are para-church ministries and many other types of religious organizations. They, too, have the right to control the selection of those who personify their beliefs, and to shape their own faith and mission through their decisions.

Third, the Court in Hosanna-Tabor held that the right of religious community autonomy is a right specifically of constitutional religious freedom, which exists regardless of what rules government might have the authority to impose on (otherwise) analogous organizations. The Obama Administration had argued, vigorously, that the rules for ministers should be the same as the rules for private associations generally—that there is nothing unique about religion or religious employment. Chief Justice Roberts’s opinion demolished this position: “We find this position untenable . . . That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

This is important. The Supreme Court has unanimously held that the Free Exercise Clause of the First Amendment provides additional and independent rights to religious organizations, beyond those to which non-religious groups are entitled as a matter of the freedoms of speech and association. Even when government might be able to regulate the employment or internal governance of non-religious organizations and associations, it may not regulate the selection by religious groups of its leaders and exemplars.

Perhaps most significant of all was the Court’s response to the suggestion that Employment Division v. Smith (1990) foreclosed such special constitutional accommodation of religious practice. The Court stated flatly that this was an overly broad reading of Smith that “has no merit.” For those who have regarded (and experienced) Smith as a major retrenchment from true religious freedom, Hosanna-Tabor offered a ray of hope. The Court seemed to limit Smith much more tightly to its specific facts than it has before. Conceding that anti-discrimination laws, like Oregon’s prohibition of peyote use (at issue in Smith), are “valid and neutral” laws of general applicability, the Court distinguished Smith sharply: “a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

It is too soon (by a long shot) to shout “Hosanna!” for the overruling of Employment Division v. Smith. But it is not too soon to observe that the Court has drawn a line—if an imperfect one—between “outward physical acts” and “internal” religious community practice that affects the “faith and mission” of the religious community, and, notably, has placed employment practices on the “internal . . . faith and mission” side of the line, not governed by Smith.

All of this is especially significant when one considers what the Court might have done—how Hosanna-Tabor could have gone very wrong. One imagines, and shudders at the prospect, of a decision in which the Court might have held that employment discrimination laws are laws that apply to everybody, on an equal basis—religious and non-religious institutions alike (citing Smith with approval, rather than distinguishing it); that, to be sure, religious institutions possessed equal rights of freedom of association to secular institutions, but not greater ones; that, whatever the possible merit of a “ministerial exception” to anti-discrimination law in extreme cases (such as requiring the Catholic Church to ordain women), the facts at hand, involving a claim of disability discrimination brought by a teacher, not a pastor, did not warrant the Court’s “creating” an exception where Congress’s statute had not done so, and the First Amendment does not of its own force create one.

That, I must confess, is how I feared the case might come out. The fact that Hosanna-Tabor did not turn out that way—and, instead, adopts precisely the opposite of each of those plausible but sinister propositions—is its great achievement.

The achievement is, in significant part, that of Chief Justice John Roberts, a masterful legal craftsman, whose skills as a legal advocate and persuader—forged by years as a leading Supreme Court practitioner, brief writer, and oral advocate—enabled him to build a unanimous Court in support of a dramatic defense of religious liberty, in an important context. He also left a trail of wonderful bread crumbs for future possible decisions. If not picked off by crows, Hosanna-Tabor’s statements of principle may become even more important than its specific holding.

The opinion closes with an important statement, shifting, subtly, the psychological balance of how the Court, and, one hopes, the country, sees these issues: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” With respect to a religious community’s freedom to select its minister, “the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

One could do far worse than that as a statement of religious liberty, and the Court often has. Hosanna-Tabor is truly a shout of praise to first principles of the First Amendment.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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But beyond the very real protections it offers specific people of faith, religious freedom plays another vital role in the life of a free society, a role that helps make possible the liberty of all its members, believers and non-believers alike. Religious freedom is not just a particular type of freedom; it is a critical source of freedom itself.

To understand why this is the case, consider what freedom requires. Most obvious is a healthy dose of negative liberty—the view that we should have the ability to live our lives as far as possible without undue interference by our government or our fellow citizens. This is what individual rights, limited government, and the rule of law aim to provide. They create a zone in which we can be authors of our own lives without being involuntarily subject to the overbearing power of others trying to force us to live or act or think in certain ways.

Of course, religious freedom is often a significant element in this negative understanding of liberty. It protects my right to practice my faith and share its good news with you, just as it protects your right also to embrace that faith, or another, or none at all. Religious freedom’s early champions played a key role in laying the foundations for constitutional democracy, and it is the first of the “shall nots” directed at the government in our Bill of Rights.

At the same time, however, religious freedom’s importance in understandings of negative liberty is not always so secure. As just one of many individual rights, it can get lost in the shuffle and minimized by those more concerned with other ones, as when the secular media, always protective of freedom of the press, show scant concern for freedom of religion issues. And some understandings of negative liberty, focused as they are on external threats to individual freedom, are more concerned with how religious practices might oppress or discriminate against individuals, often making them more sympathetic to religious regulation than religious freedom.

Fortunately, negative liberty is not the whole story. Individual rights and limits on government are necessary to freedom but not sufficient. There is more to freedom than just non-interference by others. If we are to be authors of our own lives, then we each need the ability to decide what kind of person we want to be and what kind of life we want to lead. The mere absence of external obstacles will not make us free unless we also have the internal capacity to be genuinely self-directing persons. This is why even great defenders of negative liberty such as John Locke also argue that an individual’s ability to act on that liberty is “grounded on his having reason.” This is why we don’t consider infants or those with severe mental disabilities to be fully free, or why we often refer to someone with a serious drug or alcohol addiction as being “enslaved” by it.

This internal dimension of freedom certainly requires the ability to reason, but there is more going on as well. It also requires what Charles Taylor calls “strong evaluation.” By this he means the ability to exercise self-control by subjecting our desires and goals to qualitative judgments. Reason alone can calculate how best to achieve our goals, but strong evaluation is how we determine what goals are worth pursuing in the first place. Doing so, however, requires moral standards upon which to base this evaluation—judgments about what is higher or lower, noble or base, laudable or despicable. Moral judgments of this kind are an inescapable part of freedom. Without them we cannot truly live our lives from the inside.

Taylor’s work reveals how human freedom is inseparable from our nature as moral agents. As human beings, we can’t do without some orientation to the good. It may not always be the right orientation, or we may not always live up to its demands, but it is necessary to living as free persons. I can’t decide what kind of person I want to be or what kind of life I want to lead without a moral language that makes sense of such decisions.

Here is where the internal capacity for freedom connects back to the external society around us. If we need moral standards to exercise the kind of self-evaluation, -control, and -direction that freedom requires, where do these standards come from? They don’t appear out of thin air. And while some may claim to live according to nobody’s standards but their own, this is actually impossible, for even this claim itself depends on moral ideas about autonomy and authenticity in the surrounding culture to make any sense. While we can make moral meanings our own, interpreting them, shaping them, combining them in different and sometimes even incoherent ways, we can’t invent them entirely from scratch in our own minds. Instead, we draw them from the particular cultures, communities, and traditions around us. These sources furnish the moral materials we need to construct authentic lives for ourselves as free persons.

The broadest, deepest, richest, and most important sources of these moral materials, both historically and today, are religious traditions. Even in the contemporary United States, religion remains the most significant source of moral reflection and orientation to the good that our society has. And here is the crucial thing: while the religiously devout certainly draw on this source, so too do others. Those with loose religious connections or no connections at all still participate in a social ethos rich in religious meanings. Even avowed atheists inherit a culture deeply informed by religious sources of morality, sources they often wrestle with in defining their own moral orientations. Religion’s abundant tide of moral ideas—on the nature of personhood, the just society, the good life, duties toward others, and so on—spills over for all to draw upon.

In order to perform this critical role in helping to furnish the moral materials necessary for freedom, religion certainly needs believers, but it also needs institutions where those believers are formed in the faith and put into contact with the wider culture. Churches, synagogues, and mosques; schools and universities; hospitals and clinics; newspapers, magazines, and websites; soup kitchens, adoption agencies, and drug treatment centers; youth camps, prayer groups, scripture classes, and social clubs: These are what cultivate and pass down the moral meanings embedded in religious traditions.

This, then, is why religious freedom is so important to freedom itself, including the freedom of those with little or no religious affiliation: It creates and protects a space in which religious voices can flourish, both individual and institutional. When civil society has a robust and vibrant religious dimension—when believers and their organizations can live their faith, worship, evangelize, and develop and communicate their own distinctive moral traditions—the public square is enriched. It becomes the site of religious traditions in moral dialogue with each other and the culture at large, a dialogue that helps create and sustain the moral language that citizens of all kinds require to construct freely meaningful lives for themselves.

So threats to religious liberty do not just harm individual believers. In seeking to corral, marginalize, and privatize religion, they endanger the health of religious institutions more generally, threatening to cut off a critically important source of moral reflection and orientation. This enfeebles rather than enlivens the moral content of our culture, a content that we all, believers and non-believers alike, rely upon to exercise our freedom.

David Carroll Cochran teaches politics and directs the Archbishop Kucera Center for Catholic Intellectual and Spiritual Life at Loras College in Dubuque, Iowa.

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By a vote of 8–1, the Court held that the First Amendment’s Free Speech Clause protects religious speech and association by private speakers and groups, just as it protects speech by any other speakers on any other subject, and that the Establishment Clause does not authorize discriminatory exclusion of religious speech.

This was a signal ruling. The free-speech holding was hardly new to Widmar—many of the Court’s great free-speech cases of the 1930s, 1940s, and 1950s involved religious expression—but the Widmar case framed the issue clearly and stated the rule simply. The decision came at a moment in the Court’s history when the principle of free religious speech had become endangered by the encroachment of overreaching claims of church-state “separation,” claims that many took to suggest that religion must be affirmatively excluded from the public sphere and from public discourse. Certainly UMKC (and its lawyers) thought that religious speech, by private parties, must be kept off university grounds. Separation of church and state required exclusion of religious speech, they supposed. UMKC’s posture was not so much one of hostility to religion as one of ignorance about the First Amendment—though the consequence was much the same.

Widmar marked a decisive turning point. Of course, the disposition to suppress private religious expression—to exclude, to hamper, to discriminate—persists even today. But Widmar (with its many successor cases) stands firmly in the way of the view that such suppression is in any way justified, let alone required, by the Constitution. Widmar repudiated such First Amendment ignorance.

Here is what the Court held in Widmar: Freedom of speech forbids government from prohibiting, punishing, or penalizing speech based on its content. This was already an oft-stated principle. The Free Speech Clause of the First Amendment thus forbids government from excluding religious speakers and groups from forums for expression—or from any other benefit—on account of the religious content of their expression or the religious nature of their views or association. Furthermore, the Court went on to hold, the Establishment Clause of the First Amendment, so often unthinkingly invoked to wall off religion from the public sphere, emphatically does not authorize or justify discriminatory exclusion of private religious speakers and groups from public forums for expression, or from other public benefits.

While there are many important cases in the Supreme Court’s First Amendment oeuvre, none in the last thirty years captures as succinctly and correctly as Widmar so many basic, important principles of the freedom of speech and, by implication, the American freedom of religion generally. Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject: Religious speech, association, or identity can no more serve as the basis of exclusion from a public forum or a public benefit than can any other viewpoint or affiliation. Religious freedom might mean more but cannot mean less than full and equal inclusion in the public sphere and the right to share in First Amendment freedoms of expression and association.

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

Nearly as important as Widmar’s embrace of the affirmative right to religious expression is its rejection of the mischievous notion that the Establishment Clause, which forbids government “establishment of religion,” somehow mandates, or justifies, government discrimination against religion. The Establishment Clause’s original meaning was to forbid official coercion in matters of religion, whether by direct state compulsion or by conditioning benefits or privileges on a citizen’s engaging in religious conduct favored by government. (That is the principle that makes the Court’s decisions of the 1960s striking down public-school official prayer exercises correct: Such practices employ the coercive machinery of the state to get schoolchildren to pray the government’s prayer.)

Unfortunately, a series of cases in the 1970s involving various state government programs of direct aid to private, parochial religious schools led the Court to devise a confusing “three-pronged test” intended to identify improper government sponsorship of religion. Like so many judicial interpolations into the constitutional text, however, the “Lemon test,” named for the 1971 case of Lemon v. Kurtzman that first used it, led the Court far astray. Soon, the Court’s decisions had transformed the Establishment Clause from a rule forbidding government coercion of religious practice into something approaching a rule requiring government exclusion of religion from the public square or from generally available benefits.

Widmar rejected such an understanding. Although the eight-member majority worked within the framework of the ‘70s’ Lemon test, it made clear that a policy of equal inclusion of religion does not violate the Establishment Clause. Equal inclusion has neither the purpose nor the effect of special state promotion of religion. It also avoids church-state tangles: A rule that required government to ferret out and exclude religious expression not only would violate core free-speech principles—Widmar’s free-speech holding—but also would entangle government terribly in matters of religion, in violation of religious freedom principles of church-state separation.

Widmar thus broke the Establishment Clause logjam that had become a barrier to true religious freedom. The former skewed thinking—that separation required discrimination—began to give way. Much as Brown v. Board of Education had broken the back of separate-but-equal state racial segregation a generation earlier, Widmar broke the back of separate-and-unequal official religious discrimination. Within a few years of Widmar, the Court held that tax arrangements providing neutral aid to families choosing private religious schools, rather than direct aid to the schools themselves, posed no special problem under the Establishment Clause (Mueller v. Allen, 1983). Decisions followed rejecting the idea that the Establishment Clause forbade vocational education benefit programs from being used for religious education (Witters v. Washington Department of Services for the Blind, 1986), or that disability services or remedial education could not be provided to children attending religious schools (Zobrest v. Catalina Foothills, 1993; Agostini v. Felton, 1997).

Widmar’s “equal access” rule was enacted by Congress in 1984 as a requirement for public secondary schools receiving federal financial assistance, in the important “Equal Access Act,” and was upheld by the Supreme Court against Establishment Clause challenges (Westside Board of Education v. Mergens, 1990): this means that high-school and middle-school religious student groups may form and meet on public school premises. The Court likewise applied the rule of Widmar to religious groups seeking to use or rent public-school building facilities after hours or on weekends, on an equal basis with other community groups (Lamb’s Chapel v. Center Moriches Union Free School District, 1993), and to after-hours religious clubs for children at elementary schools (Good News Club v. Milford Union Free School District, 2001). Religious worship, religious expression, and even child evangelism programs could take place on public school grounds, under equal-access principles.

In a dramatic and important extension of Widmar, the Court in 1995 held that student religious groups at state universities were entitled to equal access to student-activities funding by the university and that the Establishment Clause posed no barrier to such equal access. Thus, the University of Virginia was forbidden from denying funding to an evangelistic Christian student newspaper simply because of its religious content and viewpoint (Rosenberger v. Rector and Visitors of University of Virginia, 1995). Funding, the Court held, could be every bit as much a “forum,” from which student religious groups could not be excluded based on the content of their expression, as access to use of university buildings for religious meetings, worship, prayer, and Bible study. Given Rosenberger, it became a cinch that school-choice “voucher” plans that allowed parents to choose religious schools would be upheld against Establishment Clause challenge; and they were, in Zelman v. Simmons-Harris, in 2002. Widmar’s principle—that neutral inclusion does not violate the Establishment Clause—controlled.

These are significant results, with hugely positive consequences for religious freedom and equality in American public life. They would have been unthinkable had Widmar gone the other way, thirty years ago.

Of course, there has been some backsliding through isolated decisions in tension with Widmar’s reasoning. For example, Locke v. Davey (2004) held, somewhat bizarrely, that a state scholarship program to help lower-income, high-performing high-school students attend public or private college could exclude students choosing programs in theology. The Court emphasized, consistent with Widmar—and with Witters, Zobrest, and Rosenberger—that such exclusion was in no way constitutionally required.  Yet Locke’s  holding that such exclusion is permitted is hard to square with Widmar and cases following it.  More recently, and even more bizarrely, the Court in Christian Legal Society v. Martinez (2010) held that a state university could insist that student religious groups not have religious-belief requirements for their members and leaders. Taken seriously, Martinez is hard to square with Widmar’s premise that religious groups may not be discriminated against because of their religious nature.

But given Widmar, these isolated decisions ought not have legs. Locke v. Davey now appears to be a blip or a hiccup, limited to its facts and (one hopes) destined to be overruled in a proper case. And CLS v. Martinez may be limited to its oddly hypothetical, unreal stipulated facts (insisting that all student groups allow all people—regardless of whether they share the aims of the group—access to leadership roles).

Despite exceptions and odd departures, Widmar states the bedrock rules: The Free Speech Clause forbids government from excluding or discriminating against private parties’ religious expression because of its religious content. The Establishment Clause does not authorize or justify such discrimination, ever. Where government has provided a program or a benefit on a general basis, it may not exclude religious persons or groups on the basis of their religious expression or identity. It is hard to think of a better, more succinct statement of the essentials of religious freedom.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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Yet judges and legal scholars rarely agree on what was the original meaning, understanding, or intent of controversial clauses of the Constitution. Perhaps no better example of this dispute exists than the slew of literature about the First Amendment’s establishment clause. Since the late 1940s, its ten words—”Congress shall make no law respecting an establishment of religion”—have probably been subjected to more detailed scrutiny and analysis than any other provision of the original ten amendments.

A number of different schools of interpretation have emerged since the 1940s, with the different schools usually more reflective of the differing policy preferences of their members than the kinds of genuine scholarly disputes that arise among philologists or classical scholars when disagreement emerges over the meaning of an ancient text. In the field of constitutional interpretation, ideology-driven conclusions are the norm, not the exception, and this is true even though the dispute under consideration may concern what seems to be the neutral assessment of the historical meaning of a dryly worded legal text. Too much is usually riding on the outcome in terms of current policy controversies for most constitutional scholars to display the disinterested cool and objectivity of, say, a Latin scholar interpreting the provisions of an ancient Roman law.

An exception to this ideology-driven, result-oriented historical scholarship is Donald Drakeman’s newest book, Church, State, and Original Intent. Indeed, this book may be the most honest, most comprehensive, most nuanced, and most illuminating scholarly study now available of what those ten words of the Establishment Clause probably meant to the many different Americans in 1789–1791 who would have read them. Drakeman has no obvious ideological or public policy agenda, and even the most discerning reader will be hard put to tell where he stands on the more controversial issues of the day regarding church-state relations. Drakeman clearly delivers on his promise in the book’s Preface to provide “an as-objective-as-possible analysis” of the history and original meaning of the Establishment Clause.

Drakeman first reviews the three most prominent ways of interpreting the Establishment Clause, most of which developed after the 1947 Everson decision that upheld amidst vigorous dissent state-subsidized bus transportation for parochial school students.

The strict separationist view is the first of these interpretations. Supporters of this view, including most Supreme Court justices, hold up Thomas Jefferson’s metaphor of a “wall of separation” between church and state. Strict separationists generally believe that the First Amendment’s establishment ban prohibits government not only from establishing a church or favoring one religion over another, but from favoring religion over non-religion, conducting prayer exercises or Bible readings in the public schools, sponsoring religious invocations at public-school sporting events, displaying religious symbols such as the Christian cross or nativity scenes on government property, opening legislative sessions with a prayer, giving school vouchers that go to students attending religious schools, or using the “In God We Trust” slogan on our currency or the “under God” declaration in the Pledge of Allegiance recited in public schools. On the strict separationist view, all of these prohibitions carry over to state governments through the Fourteenth Amendment’s Due Process Clause.

The second of these views, and the most forceful challenge to the strict separationists, comes from the non-preferentialists, a group that includes Justices Antonin Scalia and William Rehnquist and legal scholars such as Gerard V. Bradley. Non-preferentialists believe that the Establishment Clause aimed only (1) to prohibit the national government from establishing a single denominational church as the official church of the United States, and (2) to prohibit the favoring of one religion or religious sect over another. But the no-sect-preference principle, non-preferentialists say, was not designed to stop government support of religion over non-religion, or to stop the government from supporting piety, religiosity, and religiously grounded morality among the American people, as long as support was given on a sect-neutral basis. While the original understanding of the no-sect-preference principle was probably meant only to cover Christian sects (i.e., Christianity could be favored over Hinduism, Judaism, or Islam), today’s non-preferentialists generally extend their no-preference principle to all religions, Christian as well as non-Christian. Government can support religion and religious belief over its absence, they say, but not one religion or religious sect over another.

Finally, the jurisdictional or federalism-enhancing view, supported somewhat by Supreme Court Justice Clarence Thomas and legal scholars such as Robert P. George and Steven D. Smith, argues that the Establishment Clause was, in Smith’s words, “simply an assignment of jurisdiction over matters of religion to the states—no more, no less.” At the time of the adoption of the First Amendment, jurisdictionalists point out, several of the states (for example, Connecticut, Massachusetts, and New Hampshire) had state and local church-state arrangements that many would call “establishments of religion.” The Establishment Clause should be understood, then, as an attempt both to (1) prohibit such an establishment at the national level, and (2) offer protection of each state’s right to maintain such an establishment within its own borders. A major purpose of the Establishment Clause, say the jurisdictionalists, was to protect a state’s prerogative to establish a religion or support religion in any way it chose, whether preferentially or non-preferentially.

Drakeman rejects the conclusions of all three interpretations, at least insofar as they claim to explicate the original meaning or intent of the Establishment Clause. The strict separationists, Drakeman says, have tried to read the clause as the result of Madison’s and Jefferson’s efforts to determine the proper church-state relationship for their home state of Virginia under the Articles of Confederation. But their views, Drakeman argues, hardly can be equated with those of the nation as a whole, of the majority of the representatives and senators who passed the first ten amendments, or of the majority of state legislators who voted to ratify the Bill of Rights. Moreover, whatever was considered the proper course for their home state of Virginia, neither Jefferson nor Madison, Drakeman shows, believed that the national government should dictate to the states their proper manner of church-state relationship.

Against non-preferentialism Drakeman’s critique is a bit more restrained. It’s not that non-preferentialists read into the Establishment Clause what clearly isn’t there, or that they take a local state battle to be paradigmatic for a non-existent national dispute, but that they fail to realize that the term “establishment of religion” meant different things to different people and had a wider range of meanings across the American public spectrum than simply an established state church such as the Anglican Church in England.

Against the jurisdictionalists Drakeman offers a partial concession. It is undoubtedly true, he says, that those who passed and ratified the Bill of Rights in the 1789–1791 period would have understood the no-national-religion principle embodied in the First Amendment to be part of the overall constitutional structure of federalism whereby states would be free to set their own policies regarding church-state relationships even if the national government were more restricted in this area. Drakeman calls this “plain vanilla federalism.” He distinguishes this from the “federalism-enhancing federalism” of the jurisdictionalists who see a specific intent on the part of supporters of the Establishment Clause in states such as Connecticut and Massachusetts (which had state establishments) to protect their state establishments from outside national interference. The clause is seen by the jurisdictionalists as deliberately intended to create an extra layer of federalism protection to secure existing state religious establishments against national encroachment.

The major weakness with the jurisdictionalist interpretation, Drakeman says, is that there is no evidence for it. No one in the 1790s thought the national government would interfere with state church-state relationships, he says, so it is not surprising that no one known to us today ever expressed support for the Establishment Clause in the way the jurisdictionalists or federalism-enhancing interpreters of the clause assert.

Drakeman’s own interpretation of the clause is minimalist:

While some aspects of the evidence can be employed to support each of the various conventional interpretations [of the Establishment Clause], the only reading of the clause that is persuasively supported by all of the relevant data shows that its original meaning was to forbid the establishment of a single national religion. It is unclear whether such prohibitions only applied to an entity like the Church of England or whether more ecumenical forms of governmental financial aid might also have been included within the original meaning of the phrase “an establishment of religion.” On this latter point, the record is (and probably always will be) too murky to tell for sure.

Drakeman’s book is indispensable reading for anyone interested in church-state relations in the American constitutional order. It is constitutional analysis at the highest level of informed scholarship and is written with an openness and humanity that jump out from every page. Nevertheless, Drakeman fails to do full justice to those who see a crucial difference between the no-national-religion principle of the First Amendment and the five personal freedoms (speech, press, assembly, petition, and religious worship) guaranteed by that amendment against usurpation by the national government. Drakeman can argue, correctly, that the five personal freedoms enumerated in the First Amendment were intended just as much to be part of the federalism structure of the government created under the Constitution as the Establishment Clause insofar as the prohibition on their restriction was intended to apply only to government action at the national level, not the state level. States under the pre-incorporated First Amendment were just as free, under the confines of their own constitutions, to limit freedoms of speech, press, assembly, petition, and religious worship as they were free to establish a church and tax their inhabitants to support it. Drakeman seems to take this to mean that the difficulties under originalist jurisprudence of incorporating these five First Amendment freedoms under the liberty provision of the Fourteenth Amendment’s Due Process Clause—and applying them to cover government action by the several states as well as the national government—are no less than those of incorporating the Establishment Clause. Since the courts have seen no problem in overriding the original federalism structure in relation to five of the six provisions of the First Amendment, Drakeman’s reasoning seems to be, why not with the sixth as well?

I think there are two problems here. First there is the problem that the non-establishment principle is not what usually would be thought of as a “liberty” under the meaning of the Fourteenth Amendment’s Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). It is a collective non-endorsement principle more than a personal liberty principle. But aside from this difficulty (which some would get around by simply reformulating and restating the non-establishment principle in a personal-liberty-enhancing way), there is the fact that in the 1790s most Americans would have seen the rights of free speech, free assembly, freedom of the press, freedom to petition the government, and freedom of religious worship as universal natural rights—or at least the rights of adult American white males—whereas very few would have understood there being any general or natural right of this kind to live in a state or a nation which did not officially endorse one religion over another or all religions neutrally. Even if it is true that the First Amendment left it up to the states to protect their citizens from serious state and local usurpations of the freedoms of speech, assembly, press, petition, and worship, it was almost universally believed in the 1790s that such usurpations were grievous wrongs and violations of basic rights. There clearly was no such consensus, however, against a state establishing a religion, preferring one religion over another, or subsidizing all religions on a no-sect-preference basis. The latter were not seen by most Americans (with important regional exceptions) as grave usurpations of fundamental personal liberties or natural human rights. Hence they do not fit easily into the Fourteenth Amendment’s understanding of hallowed constitutional liberties that must not be infringed upon by government at any level.

There really do seem to be serious problems, then, even if we read the First Amendment through the lens of “plain vanilla” federalism rather than the more supercharged “enhanced” variety, with incorporating the non-establishment principle under any reasonable reading of the word “liberty” in the Fourteenth Amendment, and this issue touches the one area where Drakeman’s otherwise magnificent work falls short. On “original meaning” grounds, the jurisdictionalists, I believe—even the plain-vanilla variety—have a stronger case than he supposes.

Russell Nieli is a lecturer in Politics at Princeton University.

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Progressives have carried these attitudes to federal, state, and local governments, and the result has been an unprecedented assault on religious values and religious practice. Governmental authorities embrace the view that access to contraception (and abortion) is a fundamental right vital to sexual freedom. Similarly, homosexual conduct must be completely normalized and accepted. The law must prohibit even private preference for heterosexual norms, and if religion teaches such a preference, religion must yield. These attitudes must be taught to children in the public schools in order to affirm, in the state’s view, the full self-realization of every person—and as shown below, parents who object to the assault on their right to bring up their children according to their religious values have discovered that the courts will not protect their rights in this regard.

Churches and other people of faith have relied on the judicial process to protect their First Amendment freedoms. But litigation takes an enormous toll in time and resources. Even worse, as many disappointed litigants have discovered, courts grant extraordinary leeway to government and government schools in advancing so-called neutral, generally applicable laws. The courts will follow the lead of the people in defining the parameters of religious liberty; if the people abdicate, the courts will not intercede to protect that liberty.

The problem lies in a 1990 Supreme Court case, Employment Division v. Smith, in which the Court held that the First Amendment does not relieve a citizen of the obligation to comply with a neutral law of general applicability, simply because the law “proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Applying Smith, lower courts have rejected almost all challenges to laws and government activities that are based on claims of interference with free exercise of religion. Many of these cases arise in the public-school setting. Courts have found that public-school administrators do not interfere with parents’ First Amendment rights by:

• Teaching kindergartners that same-sex relationships are equivalent to heterosexual ones (Parker v. Hurley);
• Administering surveys to children as young as seven, asking about sexual subjects, personal feelings and experiences, and family relationships (CN v. Ridgewood Board of Education, Fields v. Palmdale School District);
• Presenting a vulgar, sexually explicit program to teenagers as part of AIDS-prevention efforts (Brown v. Hot, Sexy & Safer Productions).

Although older Supreme Court authority acknowledged the fundamental right of parents to control the upbringing and education of their children (Meyer v. Nebraska, Pierce v. Society of Sisters, Wisconsin v. Yoder), the post-Smith courts have severely limited those holdings to their unique facts. Now, courts are more likely to hold that parents relinquish, as a practical matter, their First Amendment right to control their children’s education when they choose public schools over private schools or homeschooling. As one court said, parents “have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.”

The denigration of religious freedom extends to areas of purely private, commercial conduct. Governments increasingly apply nondiscrimination statutes to force private individuals and businesses to participate in conduct that violates their religious beliefs. So far, defenses based on the First Amendment have been unavailing. Some examples:

• The New Mexico Human Rights Commission found that a small photography business unlawfully discriminated against a same-sex couple by declining, because of the owners’ religious beliefs, to photograph the couple’s commitment ceremony (Willock v. Elane Photography).
• The California Supreme Court ruled that doctors violated the state nondiscrimination statute by refusing, on religious grounds, to artificially inseminate a woman who was in a lesbian relationship (North Coast Women’s Care Medical Group v. San Diego County Superior Court).
• A federal court in California found that administrators of an Arizona adoption-facilitation website were subject to California’s statute banning discrimination in public accommodations because they refused to post profiles of same-sex couples as potential parents (Butler v. Adoption Media).
• A New Jersey agency found probable cause to believe that a church violated a public-accommodations statute by declining to rent its pavilion for a same-sex wedding (a different agency, enforcing nondiscrimination on the basis of sexual orientation, revoked the tax exemption the church had enjoyed under a statute promoting the use of private property as green space) (Ocean Grove Camp Meeting Ass’n of United Methodist Church v. Vespa-Papaleo).
• A federal appeals court found that an employer’s denial of insurance coverage to an employee’s same-sex partner constituted illegal sex discrimination (In Re Levenson).

In none of these cases did the religious defendants discriminate against homosexuals just because of their orientation—i.e., they did not refuse to serve them in a restaurant or work on their cars or give them standard medical care. Rather, they declined to participate in an endeavor, such as same-sex marriage or adoption, which was inconsistent with their religious beliefs. But the courts and agencies found that nondiscrimination trumps religious values. The courts will not protect a for-profit business that wants to operate according to biblical principles.

Another arena in which principles of nondiscrimination are elevated over free exercise of religion is the area of public benefits. Across the country, faith-based charities or social-service organizations such as the Salvation Army and the Boy Scouts have been denied government grants or other benefits because of their religiously grounded refusal to yield to the demands of “nondiscrimination” (see, for example, Boy Scouts of America v. Wyman, Catholic Charities of Maine, Inc. v. City of Portland). These demands have included providing insurance benefits to employees’ same-sex partners, admitting homosexuals to the organizations’ leadership ranks, and placing children with same-sex adoptive parents. This latter demand has forced Catholic agencies to cease adoption facilitations in Massachusetts, Illinois, and the District of Columbia rather than violate their religious beliefs about marriage and the family.

Other victims of progressive attitudes toward sexuality and “discrimination” have been public employees who express their religiously based concerns about homosexual conduct. A Los Angeles police officer who was also a Protestant minister was demoted and, he says, denied benefits because of a sermon he delivered that quoted biblical passages about prohibited sexual conduct. An African-American college administrator was fired after she published an op-ed objecting to the equating of race discrimination and sexual-orientation discrimination. And most recently, a New Jersey teacher has come under verbal assault—including from Gov. Chris Christie, who also called for an investigation of her classroom behavior—for posting on her Facebook page her moral objections to a high school’s Lesbian Gay Bisexual Transgender History Month display.

The hostility of courts to such claims of First Amendment violations is unlikely to change, especially in light of the governmental officials’ gravitation toward the European attitude about religion—that it is a divisive influence that must be contained and marginalized. As jurists and legal scholars flirt with the idea of consulting foreign law to evaluate claims under our Constitution, this attitude could take deeper root in American soil.

Progressive to the core, the Obama administration is pursuing even more limitations on religious freedom. One such effort is the proposed mandate of the Department of Health and Human Services (HHS) that health plans cover contraceptives and sterilization, with a religious “exemption” so narrow that (as the U.S. Conference of Catholic Bishops has noted) it would not have covered the ministry of Jesus Christ. Another is the Administration’s argument in a case currently before the Supreme Court that the long-established “ministerial exception” to federal employment-discrimination laws be abandoned. This would mean that rather than allow churches to select and control their own ministers, the federal government could dictate results more in keeping with its secular values. Churches have seen this kind of thing before, and it has not ended well.

While religious freedom has been eroding over the last half-century, the faith community has failed to respond effectively—perhaps out of complacency, or fear of being thought dogmatic and uncompassionate, or concern over losing public funding or tax status. Judicial challenges, though necessary, have not stemmed the assault on religious values. In fact, the Smith decision encourages legislative and executive restrictions of free exercise.

So what is to be done? The faith community must awaken to the attacks, insist that state and federal legislatures proactively defend their rights, and resolve to address any problems as soon as they arise. This means defeating proposed legislation and regulations that threaten religious freedom, or at least amending them to include broad and robust religious exemptions and opt-out provisions. It means standing watch over public schools and securing statutes and policies that allow parents’ rights to prevail over progressive values. And it means putting the question to candidates for political office as to whether they will defend religious liberty.

Governmental and cultural progressives preach the “inevitability” of the triumph of their values over religious values. “Get used to the idea of same-sex marriage [or abortion, or whatever the issue is],” they say, “because it’s inevitable.” And if the faithful insist on clinging to their outdated religious precepts, they will be warned to leave their beliefs inside their churches or suffer penalties imposed by the more enlightened.

But if people of faith take a stand, this result is not inevitable. They must remember the place of religious freedom in America. Religion was not a hobby that people were allowed to pursue in private; it was foundational to the American experiment. Protecting the religious beliefs and religiously informed conduct of our citizens is not optional. Religion must not decrease as government increases. To allow that to happen would be to allow the dismantling of the nation as we know it, and as the Founders envisioned it.

Jane Robbins, Esq., is a Senior Fellow with American Principles in Action. Emmett McGroarty, Esq., is Executive Director of the Preserve Innocence Initiative at the American Principles Project.

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Last year I had the good fortune to read Eric Metaxas’s wonderful book, Bonhoeffer. It’s a biography of the great Lutheran theologian, Dietrich Bonhoeffer. I’ve quoted Bonhoeffer’s work many times over the years. The reason is simple. I admire him. He could have been a professor. Instead he chose to be a pastor. He could have had a sterling academic career of lecturing about his ideas and his faith. Instead he chose to put them into action and to immerse himself in people’s lives. He was a man not of “values” in the meager modern sense, but of virtues in the classical and religious sense—the virtues of justice, courage, and love, all grounded in the deep virtue of faith in a loving God.

The Third Reich hanged Bonhoeffer for his resistance activities just a few weeks before the end of the Second World War. Today we see him—rightly—as one of the great moral witnesses of the last century; a man who fought for the good, in the face of very grave evil, at the cost of his life.

Another great moral witness of the twentieth century was the writer Aleksandr Solzhenitsyn, who began as an atheist but ended Russian Orthodox. His history of The Gulag Archipelago, in its indictment of Marx, Lenin, Stalin and the brutality of Soviet repression that grew naturally from their thought, is a masterpiece of modern literature. Like Bonhoeffer, Solzhenitsyn wrote from direct experience of imprisonment and organized inhumanity. Unlike Bonhoeffer, Solzhenitsyn survived the war, survived years in prison camps, and was eventually exiled to the West.

In 1978, four years after Solzhenitsyn left Russia, Harvard University asked him to speak to its graduating students. What Harvard may have expected was praise for Western abundance, freedom, and diversity. What it got was very different.

Solzhenitsyn began by noting that Harvard’s motto is Veritas. This is the Latin word for “truth.” Then he added that “truth is seldom pleasant; it is almost invariably bitter.”

Then he spent the next 6,000 words saying what nobody wanted to hear. He methodically criticized Western cowardice and self-indulgence; the vanity and weakness of America’s intellectual classes; the “tilt of freedom in the direction of evil;” the right of people “not to have their divine souls stuffed with gossip, nonsense [and] vain talk” by the mass media; a pervasive Western atmosphere of legalism and moral mediocrity; and the rise of a destructive individualism that now forces decent people “to defend not so much human rights as human obligations.”

Some of Solzhenitsyn’s hard words came from his suffering. Some flowed from loneliness for his own country. But while Solzhenitsyn was harsh in his comments at Harvard, he also was accurate in at least some of what he said. Speaking of his Russian homeland he said, “After suffering decades of violence and oppression, the human soul longs for things higher, warmer and purer” than anything offered by the practical atheism now common in the West.

The reason for the problems of the West, said Solzhenitsyn, is found “at the root, at the very basis of human thinking in the past [several] centuries.” Our culture has fallen away from our own biblically informed heritage. We’ve lost the foundation for our moral vocabulary. This loss has starved our spirit, debased our sense of any higher purpose to life, and destroyed our ability to defend or even to explain any special dignity we assigned to the human person in the past.

Now I’ve said all of this to give a context for four simple points I’d like to share. I’ll be brief.

Here’s my first point. We remember Bonhoeffer, Solzhenitsyn, and other men and women like them because of their moral witness. But the whole idea of “moral witness” comes from the assumption that good and evil are real, and that certain basic truths about humanity don’t change. These truths are knowable and worth defending. One of these truths is the notion of man’s special dignity as a creature of reason and will. Man is part of nature, but also distinct from it.

The philosopher Hans Jonas said that three things have distinguished human life from other animal experience since early prehistory: the tool, the image, and the grave. The tool imposes man’s knowledge and will onto nature. The image—man’s paintings and other art—projects his imagination. It implies a sense of beauty and memory, and a desire to express them. But the greatest difference between humans and other animals is the grave. Only man buries his dead. Only man knows his own mortality. And knowing that he will die, only man can ask where he came from, what his life means, and what comes after it.

The grave then is an expression of reverence and hope. When Christians and other people of good will talk about “the dignity of the human person” and “the sanctity of human life,” they’re putting into words what we all instinctively know—and have known for a very long time. Something elevated and sacred in men and women demands our special respect. When we violate that human dignity, we do evil. When we serve it, we do good. And therein lies one of many ironies. We live in a society that speaks persuasively about protecting the environment and rescuing species on the brink of extinction. But then it tolerates the killing of unborn children and the abuse of human fetal tissue as lab material.

This leads me to my second point. The University of Pennsylvania is one our country’s premier research universities. That’s a great gift to the Philadelphia community. It’s also a great privilege for all of you as students, especially those specializing in the sciences. Science and technology have expanded human horizons and improved human life in vital ways over the last century. They’ve also, at times, done the opposite.

Part of a good education is learning the skill of appropriate skepticism. And that skepticism, that healthy wariness, should apply even to the methods and claims of science and technology. When a distinguished and thoroughly secular scholar like Neil Postman writes that “the uncontrolled growth of technology destroys the vital sources of our humanity. It creates a culture without a moral foundation. It undermines certain mental processes and social relations that make human life worth living” —then we need to be concerned.

There’s a proverb worth remembering here: “To a man with a hammer, every problem is a nail.” If modern man is scientific man, technology is his hammer. But every problem isn’t a nail. Knowledge without the virtues of wisdom, prudence, and, above all, humility to guide it is not just unhelpful. It’s dangerous. Goethe’s poem, The Sorcerer’s Apprentice—which some of us probably know from the Mickey Mouse cartoon based on it—sticks in our memories for a reason. We’re never as smart as we think we are, and we have a bad track record when it comes to preventing the worst uses of our own best discoveries.

Science involves the study of the material world. But human beings are more than the sum of their material processes. Trying to explain the human person with thinking that excludes the reality of the spiritual, the dignity of the religious, and the possibility of God simply cripples both the scientist and the subject being studied—man himself. To put it another way, we can destroy what we mean by humanity while claiming, and even intending, to serve it.

We might wisely remember one other fact about science. Eric Cohen observed that “From the beginning, science was driven both by democratic pity and aristocratic guile, by the promise to help humanity and the desire to be free from the constraints of the common man, with his many myths and superstitions and taboos.” In other words, scientists too often have a divided heart: a sincere desire to serve man’s knowledge, and a sincere disdain for what they see as the moral and religious delusions of real men and women. If this doesn’t make us just a little bit uneasy, it should. Both faith and science claim to teach with a special kind of authority. One of the differences is this. Most religious believers accept, at least in theory, that they’ll be judged by the God of justice for their actions. For science, God is absent from the courtroom.

This leads to my third point. God also is absent from the U.S. Constitution—but not because he’s unwelcome. In effect, God suffused the whole constitutional enterprise. Nearly all the Founders were religious believers, and some were quite devout. Their writings are heavily influenced by biblical language, morality, and thought.

America could afford to be secular in the best sense, precisely because its people were so religious. The Founders saw religious faith as something separate from government but vital to the nation’s survival. In his Farewell Address, Washington famously stressed that “religion and morality are indispensable supports” for political prosperity. He added that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” For John Adams, John Jay, James Wilson, Alexander Hamilton, Charles Carroll, George Washington, and most of the other Founders—including Thomas Jefferson and Benjamin Franklin—religion created virtuous citizens. And only virtuous citizens could sustain a country as delicately balanced in its institutions, moral instincts, and laws as the United States.

Here’s my purpose in mentioning this. The American Founders presumed the existence of natural law and natural rights. These rights are inalienable and guaranteed by a Creator; by “nature’s God,” to use the words of the Declaration of Independence. Such ideas may be out of fashion in much of legal theory today. But these same ideas are very much alive in the way we actually reason and behave in our daily lives.

Most of us here tonight believe that we have basic rights that come with the special dignity of being human. These rights are inherent to human nature. They’re part of who we are. Nobody can take them away. But if there is no Creator, and nothing fundamental and unchangeable about human nature, and if “nature’s God” is kicked out of the conversation, then our rights become the product of social convention. And social conventions can change. So can the definition of who is and who isn’t “human.”

The irony is that modern liberal democracy needs religion more than religion needs modern liberal democracy. American public life needs a framework friendly to religious belief because it can’t support its moral claims about freedom and rights with secular arguments alone. In fact, to the degree that it encourages a culture of unbelief, liberal democracy undermines its own grounding. It causes its own decline by destroying the public square’s moral coherence.

That leads to my fourth and final point. The pro-life movement needs to be understood and respected for what it is: part of a much larger, consistent, and morally worthy vision of the dignity of the human person. You don’t need to be Christian or even religious to be “pro-life.” Common sense alone is enough to make a reasonable person uneasy about what actually happens in an abortion. The natural reaction, the sane and healthy response, is repugnance.

What makes abortion so grievous is the intimacy of the violence and the innocence of the victim. Dietrich Bonhoeffer—and remember this is the same Lutheran pastor who helped smuggle Jews out of Germany and gave his life trying to overthrow Hitler—wrote that the “destruction of the embryo in the mother’s womb is a violation of the right to live which God has bestowed on this nascent life. To raise the question whether we are here concerned already with a human being or not is merely to confuse the issue. The simple fact is that God certainly intended to create a human being and that this nascent human being has been deliberately deprived of his life. And that is nothing but murder.”

Bonhoeffer’s words embody Christian belief about the sanctity of human life present from the earliest years of the Church. Rejection of abortion and infanticide was one of the key factors that set the early Christians apart from the pagan world. From the Didache in the First Century through the Early Fathers of the Church, down to our own day, Catholics—and until well into the twentieth century all other Christians—have always seen abortion as gravely evil. As Bonhoeffer points out, arguing about whether abortion is homicide or only something close to homicide is irrelevant. In the Christian view of human dignity, intentionally killing a developing human life is always inexcusable and always gravely wrong.

Working against abortion doesn’t license us to ignore the needs of the homeless or the poor, the elderly or the immigrant. It doesn’t absolve us from supporting women who find themselves pregnant or abandoned. All human life, no matter how wounded, flawed, young or old, is sacred because it comes from God. The dignity of a human life and its right to exist are guaranteed by God. Catholic teaching on abortion and sexuality is part of the same integral vision of the human person that fuels Catholic teaching on economic justice, racism, war, and peace.

These issues don’t all have the same content. They don’t all have the same weight. All of them are important, but some are more foundational than others. Without a right to life, all other rights are contingent. The heart of the matter is what Solzhenitsyn implied in his Harvard comments. Society is not just a collection of sovereign individuals with appetites moderated by the state. It’s a community of interdependent persons and communities of persons; persons who have human obligations to one another, along with their human rights. One of those obligations is to not intentionally kill the innocent. The two pillars of Catholic social teaching are respect for the sanctity of the individual and service to the common good. Abortion violates both.

In the American tradition, people have a right to bring their beliefs to bear on every social, economic, and political problem facing their community. For Christians, that’s not just a privilege. It’s not just a right. It’s a demand of the Gospel. Obviously, we have an obligation to respect the dignity of other people. We’re always bound to treat other people with charity and justice. But that good will can never be an excuse for our own silence.

Believers can’t be silent in public life and be faithful to Jesus Christ at the same time. Actively witnessing to our convictions and advancing what we believe about key moral issues in public life is not “coercion.” It’s honesty. It’s an act of truth-telling. It’s vital to the health of every democracy. And again, it’s also a duty—not only of our religious faith, but also of our citizenship.

The University of Pennsylvania’s motto is Leges sine moribus vanae. It means “Laws without morals are useless.” All law has moral content. It’s an expression of what we “ought” to do. Therefore law teaches as well as regulates. Law always involves the imposition of somebody’s judgments about morality on everyone else. That’s the nature of law. But I think the meaning of Penn’s motto goes deeper than just trying to translate beliefs into legislation. Good laws can help make a nation more human; more just; more noble. But ultimately even good laws are useless if they govern a people who, by their choices, make themselves venal and callous, foolish and self-absorbed.

It’s important for our own integrity and the integrity of our country to fight for our pro-life convictions in the public square. Anything less is a kind of cowardice. But it’s even more important to live what it means to be genuinely human and “pro-life” by our actions—fidelity to God; love for spouse and children; loyalty to friends; generosity to the poor; honesty and mercy in dealing with others; trust in the goodness of people; discipline and humility in demanding the most from ourselves.

These things sound like pieties, and that’s all they are—until we try to live them. Then their cost and their difficulty remind us that we create a culture of life to the extent that we give our lives to others. The deepest kind of revolution never comes from violence. Even politics, important as it is, is a poor tool for changing human hearts. Nations change when people change. And people change through the witness of other people—people like each of you reading this. You make the future. You build it stone by stone with the choices you make. So choose life. Defend its dignity and witness its meaning and hope to others. And if you do, you’ll discover in your own life what it means to be fully human.

Charles J. Chaput, O.F.M. Cap., Roman Catholic Archbishop of Philadelphia, is the author of Render Unto Caesar: Serving the Nation by Living our Catholic Beliefs in Political Life. This essay is adapted from a lecture Archbishop Chaput delivered last night at the University of Pennsylvania.

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Both the Civil Rights Act and the Americans with Disabilities Act contain statutory exemptions that allow religious institutions to engage in religious discrimination. A church or religious school may, for example, require all employees to sign a statement of faith or otherwise maintain fidelity to the religious tenets of the organization. But the statutes do not grant exemptions for other forms of prohibited discrimination based on race, sex, ethnicity, national origin, or disability. So what about a religious organization that, say, restricts the priesthood to males or requires rituals to be performed by people of a particular ethnic group?

For this, judges have crafted a First Amendment exception to general anti-discrimination laws, granting religious organizations broad discretion to staff “ministerial” positions based on whatever criteria they choose. The actual language of the First Amendment prohibits congressional legislation “respecting an establishment of religion or prohibiting the free exercise thereof,” and the judicially created “ministerial exception” to anti-discrimination statutes presumes that a law limiting a church’s discretion to hire ministers would be an affront to both sides of the establishment/free exercise coin. Immediately at issue in Hosanna-Tabor Lutheran Church and School v. EEOC is what counts as a “ministerial” position—and who gets to decide.

After Cheryl Perich took a medical leave of absence from her job as a teacher at a Lutheran elementary school in Redford, Michigan, there was a dispute over whether, and on what terms, she would return to work. When she threatened to sue the congregation under the Americans with Disabilities Act, the voting members of the church removed her for failing to follow accepted ecclesiastical procedures for internal dispute resolution. Federal law prohibits retaliatory firing for claims made under the ADA, and Perich insists the law applies to her because she was not employed in a ministerial role. The church claims otherwise, having long categorized Perich as a “commissioned minister.”

If the Supreme Court sides with Perich, it will essentially invite federal review of religious organizations’ own designations of ministerial offices. On what basis, then, might courts decide whether specific offices are sufficiently ministerial? Perich’s attorney suggested during oral arguments that the principal question should be whether a particular employee carries out “important secular functions in addition to her religious duties.” But, as Chief Justice John Roberts pointed out, that test is entirely unworkable. The Pope is a head of state with important secular duties. So, Roberts asked rhetorically, is he not a minister? To limit the exception to employees whose functions are entirely religious would be to make the exception meaningless. Sorting out the religious from the secular duties of church employees would also necessarily embroil courts in theological disputes, since various religious traditions differ in the ways they conceive the religious nature of particular offices and vocations.

Several groups have brought up an additionally thorny question of whether the decision to fire Perich was sufficiently “religious,” and an amicus brief signed by Americans United for Separation of Church and State and the American Civil Liberties Union suggests “courts can and should use their considerable experience in determining whether sincere religious views animated a litigant’s conduct.” If such groups have their way, federal courts will be in the business of weighing the sincerity of the religious motivations for the employment decisions of religious organizations.

An even worse outcome for religious liberty would be for the Court to drop the ministerial exception altogether and hold every employment decision—ministerial or not—subject to federal oversight. This would create an awkward and unprecedented commingling of government and religion, with federal courts essentially mediating ecclesiastical disputes regarding the fitness of individuals for positions of church leadership. While neither Perich nor the church has explicitly advocated abandoning the ministerial exception, other serious voices have.

One of those voices is that of the Obama Administration, whose Department of Justice filed an opposition brief encouraging the Court to reject the ministerial exception outright. During oral arguments, Acting Deputy Solicitor General Leondra Kruger insisted that the “insight of the ministerial exception” is merely that it will sometimes take an “extraordinarily compelling governmental interest” to justify interference with a religious organization. Churches and other religious groups, Kruger conceded, have certain associational rights under the First Amendment, but she provocatively claimed that the “basic contours of the inquiry” in religion cases were no different than in any other case involving associational rights. Kruger’s argument thus minimized the importance of the religion clauses of the First Amendment to the rights of religious organizations, and, as Justice Antonin Scalia maintained, the government’s contention here was “extraordinary.” Right “there, black on white in the text of the Constitution are special protections for religion,” Scalia noted. “And you say it makes no difference?”

The Obama Administration’s position may have been extraordinary, but it was not original. Soon after the Court agreed to hear the case, University of Houston law professors Leslie Griffin and Ronald Turner suggested “[r]eligions should not be authorized to create a zone of employment autonomy outside the review of the courts.” For support, Griffin and Turner appeal to the logic of Scalia’s opinion for the Court in Employment Division v. Smith (1990), a landmark case involving two private drug-rehab counselors who were denied unemployment benefits by the state of Oregon after they were fired for ingesting peyote as part of a religious ritual.

The Smith case would have been uncontroversial had the counselors been recreational drug users. Because their use of peyote was religiously motivated, however, they sought an exception to the generally applicable law. Scalia and the Court balked, arguing that creating a religious exception to every general statute would be tantamount to making “the professed doctrines of religious belief superior to the law of the land, and in effect to allow every citizen to become a law unto himself.” Just as individuals cannot claim a religious right to skirt laws banning polygamy, evade social security taxes, employ children as laborers, or avoid Sunday closing laws, they cannot claim a religious right to use an illicit drug.

Yet religious exceptions to generally applicable criminal laws that do not implicate other constitutional rights are conceptually different from religious exceptions to anti-discrimination statutes. As Scalia pointed out, Smith “had nothing to do” with church employment decisions, and although there may not be a constitutional right to use peyote—even for religious purposes—there is undoubtedly a strong constitutional basis for claiming independence in the matter of staffing a religious organization. If the First Amendment means anything, it means the government should not choose the officers of a church. But consider the following scenario: A local congregation runs a private, sectarian elementary school. The congregation considers some of its teachers to be “commissioned ministers” with religious vocations, and the authority to hire these teachers is given to the voting members of the church. After an internal dispute, the congregation votes to fire one of its teachers. The Equal Employment Opportunity Commission then files a complaint with a federal court, and the church is forced by the government to maintain on its payroll a minister whom it decided to fire.

This is precisely what is at stake in Hosanna-Tabor v. EEOC, and its importance is heightened because it is an issue of first impression for the Supreme Court. Although slippery slope arguments are not always sound, it is easy to see what will happen if the ministerial exception is weakened or abandoned. Religious organizations will become increasingly subject to anti-discrimination laws having to do with a host of categories hitherto unimagined, and the underlying religious motivations for staffing decisions will be subject to judicial interpretation and review.

“It may not be easy,” Madison acknowledged nearly a half-century after the adoption of the First Amendment, “in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points.” The decision to hire or fire clergy, however, is hardly an “unessential” point, and there should be no doubt that the First Amendment takes such decisions away from the civil authority.


Justin Dyer is an assistant professor of political science at the University of Missouri-Columbia and the editor of American Soul: The Contested Legacy of the Declaration of Independence (Rowman & Littlefield).

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The nondenominational program is modeled after a similar program at the Louisiana State Penitentiary, more commonly referred to as Angola. Initiated by warden Burl Cain, the Angola Bible College has received considerable attention from both secular and sacred media outlets since its inception in 1995. The Darrington Project, made possible through private funding from the Heart of Texas Foundation, is an extension of the Fort Worth–based Southwestern Baptist Theological Seminary. Brad Livingston, executive director of the Texas Department of Criminal Justice, hopes that the program will succeed and that new classes will follow each year. There are many reasons why religious people would think this is a good idea, but is there any empirical evidence that such a program might succeed? As it turns outs, there is.

Most of us have heard stories of a drug addict or alcoholic who overcomes his or her addiction as a result of a religious conversion. Likewise, there are many stories of criminals and prisoners who have experienced dramatic turnarounds as a result of a spiritual conversion. Testimonials of conversions have been the subject of books, movies, and documentaries, and they are readily accessible on the internet. From convicted murderers Ted Bundy and Karla Faye Tucker to countless lesser-known people, there are many examples one could mention in a discussion of dramatic religious conversions or experiences of spiritual transformation among those who find themselves incarcerated. Many of the ministries dedicated to working with prisoners, offenders, and drug addicts are based on the notion that a religious conversion is synonymous with reform or rehabilitation. Some of these faith-based groups believe that a conversion experience is not only the first step—it is the only step. If one accepts Jesus, then one’s needs have been met—not only from an eternal perspective, but also from a temporal one.

I do not believe that conversion experiences—no matter how dramatic—are the single answer to prisoner reform or, for that matter, a host of other crime-related problems (e.g., delinquency, violence, substance abuse, prisoner reentry, and aftercare). On the other hand, I do believe that “finding God” or becoming a born-again Christian can play a critically important role as a starting point in the process of long-term change and reform. In other words, religious conversions play an important role, but these conversions, in isolation, are insufficient in reforming offenders and bringing about lasting change. I would argue that the key to authentic behavioral change lies in an ongoing process of spiritual transformation. Further, it is the process of spiritual growth and development that makes it possible to sustain and build upon a conversion experience. Let me explain.

Becoming “born again” does not exempt a prisoner from facing numerous and formidable challenges following release from prison. Most ex-prisoners struggle to find stable employment, acceptable housing, adequate transportation, and supportive family members. Because of these and other reentry difficulties, it is only a matter of time before many ex-prisoners return to prison. My own observations are consistent with what little research is available on this subject: many inmates who experience religious conversions in prison are either unable or unwilling once released from prison to get connected to local congregations. Because reentry to society is so difficult, not connecting to a church is a recipe for disaster, effectively separating former prisoners from the support they need in order to live a law-abiding and productive life in the free world. Without these faith-based connections, ex-prisoners will not have a mentor to hold them accountable, and they will not have access to the vibrant networks of social support that exist in so many congregations. These networks, and the faith-motivated individuals within them, can touch each of the areas that are so problematic during prisoner reentry.

If the only difference between inmates who leave prison is that some are “born again” and others are not, it should come as no surprise that recidivism rates between these two groups would be comparable. In fact, this is exactly what I found when I tracked born-again prisoners and a comparable group of inmates who had not reported having a conversion experience. There was no difference in recidivism rates for these two groups following release from prison. I did not find that the conversion experience protected ex-prisoners from all manner of missteps once they were released from prison. If born-again prisoners are not the beneficiaries of structured instruction, mentoring, and support, they will most likely be rearrested and returned to prison in similar rates as their non-religious counterparts. These born-again ex-prisoners—new creations though they may be—are just as likely to return to prison, except that this time they will bring Jesus with them when they return.

I have interviewed hundreds of inmates over the years and many have served four or five previous prison sentences. When asked about their faith background, many have indicated they became a Christian during their first or second prison commitment. As many inmates have told me with great disappointment, they simply strayed from the truth and abandoned the commitments they made in prison. I am not trying to minimize the work of those who preach the gospel message in prisons, but unless other faith-based ministries on the outside of prisons are willing to do more intentional work with ex-prisoners, it will be difficult for new converts to transition successfully back to society. Consequently, I would argue that conversion experiences represent only the first step in a much longer journey. Religious conversion is not synonymous with spiritual transformation. The latter is an ongoing process that, unfortunately, often tends to stall once inmates leave prison.

Can we argue that religious conversions are therefore meaningless or that “jailhouse” religion is of little value? Let me explain why the answer is “no.” Although I am suggesting that religious conversions do not appear to affect recidivism, I am not arguing that religious conversions in prison are without value or that they will not stick. Here’s why: One of the most well-known delinquency studies of all time was conducted by Sheldon and Eleanor Glueck. The Gluecks published the classic book Unraveling Juvenile Delinquency in 1950, in which they described their findings after studying, among other things, 500 troubled boys raised in Boston who had already been involved in delinquent behavior and had been put into reform school. The Gluecks collected extensive records about the boys and tracked them through adolescence. Many years later, Robert Sampson and John Laub, two leading criminologists, discovered the original files from the Gluecks’ research and followed up with the original respondents to see how they were doing now that they were around 60 years of age. Sampson and Laub found that some of the troubled boys, as one might expect, ended up in trouble with the law for the rest of their lives. Others, however, lived very normal lives and had no legal problems. They found that the troubled kids who had straightened out experienced some sort of turning point or event that was pivotal in bringing them out of a criminal lifestyle or path, and into a more traditional and law-abiding pattern of behavior. These turning points, for example, could be getting a job, marriage, or becoming a parent. In other words, people can and do change. Just because a person starts out on the wrong track does not mean that he is destined to stay on the wrong track for the rest of his life.

Unfortunately, scholars have been reluctant to discuss how changes or turning points within the individual may lead to the formation of important and positive social bonds. In recent years, however, several scholars have acknowledged that changes in the individual must take place before that person is ready to develop ties and connections to social institutions. In other words, the individual must change if the bond is to form. Peggy Giordano and her colleagues call this kind of change “cognitive transformation.” For them, these cognitive transformations are essential if a person is to sustain a new way of life. They suggest that religion can be viewed not only as a source of external control over an individual’s conduct, but also as a catalyst for new definitions and a cognitive blueprint for how one is to proceed as a changed individual. This process of change is facilitated by faith, whether through an affiliation with a religious congregation, personal spiritual experiences, or both. This process makes possible the development of a new and more favorable identity to replace the old one associated with any or all of the following: failure, violence, abuse, addiction, heartbreak, and guilt.

This is why religious conversions are important. Religious experiences can be turning points in the lives of offenders. Becoming a born-again Christian may put into motion a sequence of events that could be essential to changing a person’s behavioral trajectory. The conversion itself can provide a bridge to other faith-motivated individuals and resources that can prove instrumental in having a tipping effect in a person’s life. These religious conversion experiences, if nurtured, can be the catalysts for spiritual transformation that develops over time. It is this process that can help offenders to build a new foundation and to start their lives over again. Stated differently, offenders get a chance to rewrite their own narrative, which can be a powerful and redemptive thing; it can give ex-prisoners the hope and purpose they need to start a new and pro-social life, while also helping them come to terms with the anti-social life they have left behind.

Every year, hundreds of thousands of prisoners participate in religious services and interact with faith-motivated volunteers and mentors. Many of these offenders have had religious conversions. In and of itself, this may not mean a great deal to criminologists, correctional practitioners, or policymakers. However, faith-based prison programs and seminaries like those at Darrington and Angola, especially if they are connected to faith-based reentry and aftercare programs, have the potential to build upon these religious conversions. Religious conversions should not be viewed cynically as “jailhouse religion,” but rather as the opportunity to connect these converts to volunteers and faith-based networks that can facilitate and nurture spiritual transformation.

Let me be clear: Simply relying only on faith-based prison programs to reform prisoners and reduce crime would be a misguided policy recommendation. However, there is a real need for faith-based organizations, governmental agencies, and other social service providers to think strategically about partnerships and mutual accountability in order to produce results that reduce recidivism and protect the public safety. Some secular individuals and groups will not admit or accept that religion has an important role to play in addressing social problems. At the same time, some religious people believe that converting inmates to Christianity is all that is necessary. It is this paradox that contributes to faith-based approaches remaining peripheral rather than central to our crime-fighting strategies.


Byron Johnson is Distinguished Professor of the Social Sciences at Baylor University and author of More God, Less Crime: Why Faith Matters and How it Could Matter More (2011).

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1. Mandate for Abortion and Contraception

The jointly issued “interim final rule” regarding “preventive health services” requires nearly all private health plans to include coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without co-pays or other cost-sharing— no matter whether the insurer, the employer or other plan sponsor, or even the woman herself objects to such coverage on the basis of religious or moral principles. Women may not receive, and insurers, employers and other plan sponsors may not provide, health coverage that is exclusive of such “services.” Never before has the federal government required private health plans to include such coverage.

Among the FDA approved “contraceptive measures” are drugs that, under certain circumstances, terminate the life of a human being at the embryonic stage of development. At least two of the drugs approved by the FDA under the rubric of “contraception” so function in some cases. They are more accurately labeled abortifacients.^[1] As a matter of basic embryology, the life of the human organism begins with the fusion of gametes—egg and sperm. And according to FDA labeling, “Plan B emergency contraception” (levonorgestrel, also known as “the morning-after pill”)—“may inhibit implantation by altering the endometrium.” In other words, Plan B may make it impossible for the newly conceived human being to embed herself into her mother’s uterine lining—a necessary condition of life support for the unborn child. In such cases, the embryo is destroyed prior to implantation.

Another FDA-approved form of “contraception” known as “Ella” (ulipristal, or the “5 day-after pill”), seems to pose an even greater danger to newly-conceived or even newly-implanted embryonic human beings. Ella is a “selective progesterone receptor modulator.” It may function pre-implantation by rendering the endometrium inhospitable to implantation for a newly-conceived embryo (like Plan B); it may also function post-implantation by depriving a living embryo of progesterone or by destroying the maternal component of the placenta. In both of these manners, Ella functions as an early abortifacient. Indeed, the FDA labeling for Ella states that the drug is contraindicated during pregnancy, citing animal studies showing its capacity to terminate a pregnancy. Furthermore, there is nothing to prevent the off-label prescription of Ella (or its purchase, should it become available, like Plan B, for sale over-the-counter) for purposes of terminating a known pregnancy. In short, the new “preventive services” mandate includes coverage for drugs used to kill an unborn child both before and after implantation. Many institutions and individuals (religious and secular) rightly condemn such killing as a grave injustice.

2. The Religious Exemption

The rule includes a very narrow religious exemption. Houses of worship are almost certainly protected, but all other religious ministries and institutions are almost certainly not. The exemption covers only: a “religious employer” that has the “inculcation of religious values” as its purpose; “primarily employs persons who share its religious tenets”; and primarily “serves persons who share its religious tenets.” Further, the employer must qualify as a church organization under two narrow provisions of the tax code. Religious institutions such as colleges and universities, as well as hospitals and charitable institutions that employ and serve the public (versus only co-believers) will be ineligible. Individuals, and religiously affiliated health insurers are also outside of the scope of the exemption.

Others have made the case to HHS that the religious exemption in the proposed regulations is unprecedented in its narrowness. Indeed, it is. Though copied largely from state laws requiring insurance plans to include prescription contraception, the proposed federal mandate is much more sweeping than any comparable state program. When you add to this picture that the new proposal would include “contraceptives” that act as abortifacients, then the radical nature of this looming invasion of religious liberty finally comes into full view.

The U.S. Catholic bishops—sponsors of the nation’s largest private charities—correctly observe that the new mandate “poses an unprecedented threat to individual and institutional religious freedom.” We would add that not even a Catholic parish’s grade school would be exempt from the new mandate to carry insurance that pays for some early abortions. These schools do not always “primarily serve persons who share [the employing religion’s] tenets.” Particularly in urban cores, Catholic schools might enroll a majority of non-Catholic students, often children from the most vulnerable racial and socioeconomic groups. Further, Catholic schools’ “purpose,” as required by the proposed regulation, is not solely “the inculcation of religious values.” That is one purpose of a Catholic school. But the main or “primary” purpose of a Catholic school is the same as that of any other school: providing an education. Other religious institutions, universities in particular, regard it as part of the core of their mission and identity to be and act in the world as a witness and servant to others, all others, regardless of their beliefs, circumstances, or station in life. This almost always results in the employing and serving of persons who do not share the same faith as the institution’s founders. This vision of ministry and identity, under the proposed rule, would disqualify a religious institution from taking advantage of the religious exemption.

Yet throughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause

Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.

The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. This, apparently, is what the authors of the new regulations intended when they adopted the stringent definition of “religious employer,” drafted by the American Civil Liberties Union (ACLU) in connection with California’s contraception mandate. This is the very same ACLU that recently urged HHS to force all Catholic hospitals to perform abortions under the guise of necessary “emergency treatment.” Recent history demonstrates that many religious employers will exit from the marketplace rather than abandon their mission to offer faithful witness in the course of providing service. Those behind the new regulations must be willing to accept this effect, and perhaps even desire it.

This is revolutionary. Never before in American history has any administration—state or federal—been so willing to force religious institutions out of business. In fact, at our founding, and for a long time thereafter, most education, healthcare, and social services were provided by the churches, not by the government. In most cases public authorities assisted the churches by some form of financial or material aid. Even when, after the Civil War, governments began more earnestly to set up their own schools and to provide some other charitable services directly, the norm remained what it had been: a productive partnership between religious and civil providers, with no preference for any religion and with coercion of no one’s conscience, all directed to the achievement of the common good. This was surely the pattern up to and beyond World War II.

In fact, it was not until the 1960s, and then largely under the influence of Supreme Court decisions imbued with a rabid secularism, that this long partnership came in for wholesale criticism. Only then did American elites begin to think of systematically privatizing religion, of shutting up faith within the walls of family, home, and church. Only in the 1960s did significant numbers of people begin to think that everything public—that is, all that is properly in the civil sphere—should be governmental.

With these proposed regulations, the Obama administration would turn back the clock, not only to this discredited intolerance, but beyond, and toward a repudiation of our whole constitutional and political tradition. The administration would restrict the public square to the government to an extent that would be anathema to the founders, and undreamt-of by any important public figure since.

3. Sexual Expression: The Elephant in the Room

It seems more than a little likely that the degree to which this administration is willing to silence or privatize religion is proportionate to its passionate commitment to the population and sexual freedom agendas of one of the administration’s closest allies, the Planned Parenthood Federation of America (“Planned Parenthood”)—the largest single abortion provider in the United States. It is Planned Parenthood that lobbied strenuously for precisely the coercive outcome represented by these proposed regulations. It is Planned Parenthood whose leadership is closely intertwined with the authors of the Institute of Medicine (IOM) report upon which these regulations are based. And it is Planned Parenthood’s former research affiliate, the Guttmacher Institute, that issued several of the studies cited in the IOM report as the basis of its false claims that easier access to birth control has reduced and will reduce our national rates of unintended pregnancies and abortions. It is also Planned Parenthood that—at a time of national economic crisis—has just received new federal dollars to replace the dollars recently taken from them by state legislatures wary of supporting such a prominent abortion provider.

It is well known that the various religious institutions sponsored by the Catholic Church do not provide contraception to their employees or their clients. The Catholic Church in the United States is also the most persistent and powerful voice against the legalization and normalization of abortion in America today. Its witness on these matters earns scorn from those “true believers” who continue to insist that abortion and contraception are the best response to high rates of nonmarital births and abortions, in the teeth of compelling evidence that both policies are associated with even higher rates of nonmarital pregnancies and abortions due to the manner in which they change the “markets” for sex and marriage. (See, Helen M. Alvaré, Abortion, Sexual Markets and the Law, in Stephen Napier, ed., Persons, Moral Worth, and Embryos: A Critical Analysis of Pro-Choice Arguments, 255, 261ff (2011)). Planned Parenthood is preeminent among such “true believers.”

With these new regulations, the administration has placed itself on the side of the Planned Parenthood worldview: an irrational commitment to unrestrained sexual expression, “insured” by easy access to contraception and abortion, no matter the cost to religious freedom or to the well-being of the adults and children involved. These regulations would enclose behind the walls of sanctuaries any and all dissenting religious voices on the matter of sexual restraint and respect for vulnerable human life. Those who today speak common sense on the matter of sexual restraint—backed by current and credible data—are the very persons and groups who would be silenced. Their reasoned arguments, and the witness of their lives, would no longer be available to those who do not already share their faith. Consequently, while religious institutions will suffer should the current “preventive” health care mandate take effect without amendment, there is a group that will arguably suffer even more: those Americans most in need of viewpoints dissenting from this new federal orthodoxy concerning human sexuality and the value of vulnerable human life.


Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. Gerard V. Bradley is professor of law at the University of Notre Dame Law School. O. Carter Snead is professor of law at University of Notre Dame Law School. They write on behalf of the Witherspoon Institute’s Task Force on Conscience Protection.

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Would 9/11 have happened?

There are good reasons to believe that the answer is “no.” Religious freedom, the evidence shows, can be an antidote to religion-related extremism, including terrorism. Despite this, the United States has made little effort to advance international religious freedom as part of either its counter-terrorism strategy or its democracy assistance programs in Egypt and elsewhere in the Middle East. Both the Obama administration and Congress have been unwilling to back a serious religious freedom policy, even though the potential benefits are enormous and the costs would be very low.

The explanation lies in a perfect storm of official inertia, grounded in political correctness, a lack of imagination, and—worst of all—indifference.

First, the evidence. Recall how the 9/11 Commission defined the danger:

The catastrophic threat at this moment in history is … Islamist terrorism—especially the al Qaeda network, its affiliates, and its ideology … [which]  draw on a long tradition of extreme intolerance within one stream of Islam (a minority tradition), from at least Ibn Taimiyyah, through the founders of Wahhabism, through the Muslim Brotherhood, to Sayyid Qutb. That stream is motivated by religion and does not distinguish politics from religion, thus distorting both. … It is not a position with which Americans can bargain or negotiate. With it there is no common ground—not even respect for life—on which to begin a dialogue. It can only be destroyed or utterly isolated.

Religious liberty cannot destroy the terrorists, but it can help isolate them and their ideas. Empirical sociologists Brian Grim and Roger Finke have demonstrated in their work a causal connection between the absence of religious freedom and the incubation of religious terrorism. Where there is a closed religious orthodoxy, as in Saudi Arabia or Pakistan, extremist ideas flourish. But the reverse appears to be true as well: When all religious actors and ideas enjoy equal access to public life, including democratic political life, liberal political theologies emerge and the appeal of extremism diminishes.

Electoral democracy can help undermine extremism and encourage liberalism, but elections alone are not enough. In order to take root, democracy must embrace the fundamental tenets of liberalism, including a bundled commodity of fundamental freedoms that include religious liberty. Several Muslim societies are struggling to establish democracy, and while some are making good progress, particularly Turkey and Indonesia, none has embraced religious freedom in full. Each continues to suppress religious minorities and to silence Islamic reformers, some by prosecuting them for blasphemy. Of course, if the voices calling for liberalization are silenced, the winners are Islamist extremists and, often, terrorists.

Are Grim and Finke right? If so, how does religious liberty help democracy take root and undermine terrorism?

Timothy Samuel Shah, Monica Duffy Toft, and Daniel Philpott, scholars in the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace, & World Affairs, have shown in their book God’s Century that the exclusion of religious actors from politics can encourage a turn to violence and extremism. Seeing no outlet for their ideas and objectives in the democratic public square, some religious individuals and groups—perhaps already inclined toward violence because of the political theologies to which they are attracted—will become fiercely anti-democratic and all the more radical.

For example, the radicalization of Muslim Brother Sayyid Qutb in the 1950s and 1960s can be attributed in part to his experience of the West, to which he applied his extremist understanding of Islam. His writings matured into a blueprint for terrorism, however, during the repressive reign of Egypt’s Gamal Nasser, who banned the Muslim Brotherhood, threw Qutb into prison, and sanctioned his torture. The current head of Al Qaeda, Ayman al-Zawahiri, was imprisoned and tortured by Nasser’s successor, Anwar Sadat.

On the other hand, the active involvement of religious actors in democratic politics can undermine the extremist tendencies already present in their political theologies, and can encourage them to adopt more liberal policies. This de-radicalizing tendency of democracy may result from the need to win votes, which typically requires a more moderate and diverse platform that goes beyond political theologies per se. For example, Turkey’s ruling (and Islamic) Justice and Development Party has won support from skeptics by adopting free-market economic policies.

De-radicalization and liberalization also may result from the limits necessarily imposed by a functioning, healthy democracy, particularly the constraints imposed by the foundational democratic principle of full equality under the law for all religious individuals and groups. For example, if the Muslim Brothers truly want the advantages of a stable democracy (an aspiration that currently remains ambiguous), they will ultimately have to accept the core principle of full equality for other Muslims and non-Muslims, whether in the majority or minority. If they do not, democracy is unlikely ever to flourish in Egypt, and Egyptians will never experience its long-term benefits, including economic growth, security, and social harmony.

Perhaps most important of all, political theologies are more likely to liberalize when they are forced to compete in a marketplace of religious ideas. If religious leaders are required to defend their teachings—for example, their views on the meaning of justice, freedom, equality, and the common good—against competing conceptions (religious or not), their teachings are less likely to remain extremist. A monopoly on thought is not good for any body of ideas, including political theologies.

Given the evidence that religious freedom can contribute to de-radicalization, American foreign policy should be integrating international religious freedom into its governance strategies for the broader Middle East. Unfortunately, it is failing to do so. In his June 2009 Cairo speech, President Obama said that “freedom of religion is central to the ability of peoples to live together.” He’s right; but words do not substitute for policy action. It took the Obama administration two and a half years to get in place its ambassador-at-large for international religious freedom—the senior official who implements American policy on religious freedom—and when the ambassador finally stepped into her office, she found herself working for a lower-ranking official, far removed from the Secretary of State. While other similarly ranked officials, such as the ambassador-at-large for women’s issues, work directly under Secretary Clinton, the ambassador for religious freedom remains isolated and under-resourced.

Meanwhile, minority Christians, disfavored Muslims, and other groups are being persecuted around the globe. In 2009, the Pew Forum reported that 70 percent of the world’s population lives in countries where their religious freedom is severely restricted, often by violent persecution. An August update says that the problem is getting worse. Political upheaval in the Middle East will likely lead to catastrophe unless the religion-state problem is resolved. Yet the administration does not see the urgency. Obama and Clinton have prioritized other foreign policy issues, investing the administration’s energy and resources in projects like climate change research, closing Guantanamo, “engaging Islam,” and internationalizing gay rights.

Of late, Congress also has done little to advance the cause of religious freedom. In 1998, it passed the International Religious Freedom Act, which provided the statutory basis for U.S. policy. Recently, a bipartisan group in the House sponsored a bill with amendments that would force the State Department to prioritize religious freedom—putting the ambassador under the Secretary, allocating democracy funding to religious freedom, and mandating training for American diplomats.

Unfortunately, neither Senate Democrat nor House Republican leaders appear to see the value of passing these amendments. In mid-September, all State Department language was summarily stripped from the bill, leaving only the reauthorization of an advisory panel called the Commission on International Religious Freedom. The Commission is important and should be reauthorized, but it is only an advisory body, unable to drive U.S. policy.

If policy is to have an impact on religious persecution, the emergence of stable democracies in the Middle East, or the defeat of Islamist terrorism, the Department of State must take the lead. At the moment, there is little sign of that happening. The great tragedy is that the proposed bill, if successfully passed in full, could help both reduce the deaths and injuries of young American men and women, and curtail the extraordinary sums we are spending to fight terrorism.

Can religious freedom prevent another 9/11 attack? If Congress passes the State Department’s amendments to the law, we’ll be given a chance to find out.

Thomas F. Farr, a former American diplomat, is Visiting Associate Professor of Religion and World Affairs in the Edmund A. Walsh School of Foreign Service and a Senior Fellow at the Berkley Center for Religion, Peace, & World Affairs at Georgetown University. He also chairs the Witherspoon Institute’s task force on International Religious Freedom.

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We have done better at some of these things than others, and as a consequence, the observance of the tenth anniversary of 9/11 has given rise to a steady stream of small but troubling controversies. Some of them have revolved around the divisive actions of New York City’s mayor, Michael Bloomberg, whose willful decision to exclude all clergy, first responders, and firemen from the memorial ceremony at Ground Zero on September 11^th, on the grounds that the ceremony should be only for the families of 9/11 victims, has needlessly detracted from the occasion.

But Bloomberg’s faulty reasoning was a perfect index of what has gone wrong more generally. The event we now call 9/11 was not only a great and awful event in the lives of those individuals. It was an event in the life of the American nation, and as such, touches the life of every single American citizen. The attack was an attack on America, which is why all of us bear equally the duty of remembrance. That was the spirit in which the memorial service should have been conducted.

The news coverage of the tenth anniversary had a similar defect. Immense attention was paid to the many wrenching human stories of the attack and its aftermath, but there was comparatively little attention paid to what September 11^th means, and should mean, for all Americans. In fact, the finely grained depiction of the event’s wrenching human drama served to divert attention from the disturbing fact that we lack a general consensus about the event’s larger importance to our nation. And that is the deeper problem beneath the surface of the Bloomberg problem.

That we would have arrived at such a confused state of affairs only ten years after the event would have seemed almost as unimaginable as the attacks themselves, for the events of September 11^th were not only dramatic and shocking, but also immediately and powerfully galvanizing. Just as the Japanese bombing of the American naval base at Pearl Harbor in December 1941 swiftly united a nation that had been furiously at odds about entrance into the Second World War, so the assault of September 11^th intruded upon a nation that was bitterly divided and distracted by the contested presidential election of 2000 and by a host of other squabbles and obsessions. For a time, all those internal divisions and distractions were rendered moot.

The wave of patriotic sentiment that emerged was remarkable in its spontaneity and breadth. No one can forget the sudden appearance on American streets of a vast profusion of American flags, or the sudden fondness for the playing of patriotic songs in public places. But the event’s influence rapidly dissipated, and the flags were soon put away. Soon many Americans were feeling a growing level of unease and even defensiveness and guilt about the nation’s alleged Islamophobia, sentiments that increasingly overshadowed any anxiety about the possibility of another attack. More and more Americans have been willing to take seriously the idea, peddled by figures as various as the literary critic Susan Sontag, the Colorado professor Ward Churchill, and the Reverend Jeremiah Wright, that America was somehow to blame for the attacks, and fully deserved them. In addition, there has always been a significant minority of Americans who firmly believe that the attacks themselves were an “inside job,” since an event of such magnitude could not have taken place without the active involvement, or at least complicity, of the Bush-Cheney administration. According to a 2006 Scripps-Howard/Ohio University poll, 36% of Americans thought it likely that government officials had either participated in the attacks or had chosen not to interfere in order to stop them. Even if the actual number of such skeptics was far lower, say 20%, the figure is only slightly less startling, with no less troubling implications. It shows what can happen when national consensus starts to disintegrate. Nature abhors a vacuum, and that includes a vacuum of shared meaning. Hence the flourishing of conspiracy theories under such circumstances.

Given the lack of any generally agreed-upon public meaning of September 11^th, we have naturally found it hard to arrive at a means of commemorating the date properly. The least controversial way to do it is to individualize the commemoration. This was precisely the tack taken by Maya Lin’s highly successful Vietnam Veterans Memorial on the National Mall in Washington, a monument whose very name signaled that the purpose was to honor the individual veterans rather than their cause. Lin’s design was a collective tombstone, upon which were inscribed some 58,000 names of those individuals who lost their lives in Vietnam, but that eschewed any reference to the larger war or the nation. Critics blasted the wall as a “black gash of shame,” but that is not the way that millions of profoundly emotional visitors have seen it. They were willing to accept, and perhaps have been relieved by, the memorial’s bracketing of any question of the war’s meaning, since it offered a means of grieving their loss without having to consider such matters.

Something of the same approach is being taken by the new 9/11 memorial, located on the former site of the World Trade Center, which was finally opened to victims’ families on the tenth anniversary of the attacks and to the public today. It too features the names of victims—nearly 3,000, including those from Pennsylvania and Virginia as well as those who died in the 1993 attack on the World Trade Center—in this case, inscribed on bronze panels, deployed around pools with waterfalls. One sees a similarly individualizing thrust on the website for the memorial and museum, in features such as “9/11: Events of the Day,” “Oral Histories,” and “Make History”—the last of which is to be “a collective telling of the events of 9/11 through the eyes of those who experienced it,” to which one is encouraged to “Add Your Story.” The website has an excellent “9/11 Interactive Timeline,” which describes in considerable detail the sequence of events. But nowhere does it offer an explanation of the motives behind the “terrorist attacks” themselves, or a larger view of the geopolitical struggle of which they were a part.

The title given to the memorial by its architects—“Reflecting Absence”—was also indicative of its low-key, unspecific, somewhat ethereal and non-referential character. I have no doubt that the memorial will be a beautiful place for reflection and grief, in just the way the architects intended, and that such a modest approach will turn out to be appropriate to the setting and to the historical moment, just as the Vietnam Veterans Memorial seems to have been for its own. But it returns us to the questions with which we began: What is being commemorated here? What is the connection between the people being remembered and the larger task that their deaths set before the nation?

Lincoln’s great words at Gettysburg sought to highlight such a connection: it is for us, the living, “to be here dedicated to the great task remaining before us,” the cause for which the fallen ones sacrificed their lives. But the new memorial seeks to obscure any such connection. If one were talking only about the tragically lost lives of some 3,000 individuals and nothing else—as if their lives had been lost in a single giant plane crash or car accident, or as the result of a random psychopathic act—there would be no way of justifying the lavish expense of or the political drama surrounding this memorial. What makes September 11^th worthy of public memorializing is that it was not only an event in the lives of these individuals and their families; it was an event in the life of the American nation, an attack aimed at the American nation. In addition, it was an event that, like all great historical events, cannot be adequately understood only through the eyes of those who experienced it. This is why the Bloomberg view, that the service at Ground Zero should stay focused on the families of the victims, is both sadly myopic and entirely indicative of our historical moment.


Wilfred M. McClay is the SunTrust Chair of Excellence in Humanities at the University of Tennessee Chattanooga. A longer version of this article appears in the Fall 2011 issue of National Affairs.

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We are also grateful to religious institutions for providing services to our most vulnerable citizens, services that government cannot duplicate, because of the thick moral commitments that suffuse them. We understand, too, the role that religion plays in inspiring untold numbers of daily, private interactions that law could neither effectively command nor police, but that are essential for creating a society in which human beings’ intrinsic dignity is both recognized and served. Finally, we recognize the prophetic role that religious institutions and persons have played during our history, when they have identified human rights’ violations and called for both a change of heart and changes in the law.

At the time of our founding, Thomas Jefferson wrote that “Almighty God hath created the mind free. … All attempts to influence it by temporal punishments or burthens … are a departure from the plan of the Holy Author of our religion.” He also wrote that the “moral duties which exist between individual and individual in a state of nature accompany them into a state of society, … their Maker not having released them from those duties on their forming themselves into a nation.” In other words, God has entrusted human beings, alone and in society, with the crucial task of seeking the truth and of living in accordance with it. The state has no authority to interfere with or to direct this pursuit. Our founders’ convictions about religious freedom found their way into our Constitution as the First Amendment of our Bill of Rights.

Over the course of our history, Americans came to understand that the state’s lack of jurisdiction over questions of ultimate meaning entailed not only allowing individuals to believe privately in a transcendent reality, or to worship as they believed, or even to pray privately and perform good works. Rather, it also entailed recognizing that religion is also exercised in the form of associations that provide services to vulnerable citizens of every background in accordance with religious principles. Throughout American history, religious citizens were not only permitted, but even encouraged, to let their religious convictions inform their work, and their contributions to public debates were understood to have important consequences for our understanding of human rights and dignity.

Americans have also historically recognized religious providers’ valuable contributions in the areas of education, healthcare, and general social services. Religious ministries often lead the way in reaching out to the most unpopular or invisible groups, whether persons with AIDS, immigrants, poor single mothers, the severely disabled, or the dying. Ironically today, these ministries are branded as bigoted and misogynistic by interest groups claiming “rights” to sexual expression of any sort, while these same ministries labor daily to piece together the lives of those directly harmed—whether by sexually transmitted disease, non-marital pregnancies, or abortions—by the exercise of such “rights.”

Institutional religious ministries also serve another valuable function, less often noticed. They act as a force for assimilation, through their services to new immigrants and inner-city students, and in their hiring and serving people who do not share their faith affiliation, especially in their healthcare and social service ministries. In their encounters with millions of diverse clients, these ministries bring invaluable wisdom about human needs to the public policy table on many issues such as healthcare, abortion, post-abortion distress, marriage, euthanasia, immigration, poverty, war, and the moral guidelines for scientific research.

Despite this record of accomplishment, religious individuals and institutions are threatened today by various social and legal forces. First, it seems that both citizens and leaders often forget or take for granted the crucial role that religious freedom has played in our nation’s founding and flourishing. We no longer clearly grasp the relationship between our enjoyment of social peace and prosperity and our long tradition of religious freedom.

Second, among elite academic and media voices, there seems to be a particular animus against Christian adherence to classical norms regarding the dignity of the human person in connection with sex, marriage, and the family. Christians have been especially condemned for their staunch refusal to agree that abortion is a “right,” for their insistence that children’s interests—not adults’—should guide marriage law, and for their refusal to accede to the trivialization of sex and the degradation of women implicit in governments’ approach to birth-control distribution and sex education. Leading Supreme Court opinions, as well as federal statutes and regulations, are more inclined than ever to posit the existence of a “right” to any form of sexual expression, on the grounds of either “privacy” or “equality.” This increasingly aggressive stance is often the cause of the most virulent attacks upon religious freedom.

Third, during the passage of the 2010 health care law (the Patient Protection and Affordable Care Act or PPACA), longstanding, bipartisan agreement to shield the religious freedom of healthcare providers—especially where abortion is concerned—broke down. Democrats in the Senate and then in the House either proposed or ultimately acceded to conscience provisions significantly weaker than those available in past federal laws. Very recently, the Obama administration realized religious institutions’ worst fears by mandating all forms of birth control, and some forms of abortifacient drugs, as mandatory “preventive healthcare” services under the PPACA. Under this regulation, religiously affiliated healthcare institutions that attempt to hire or serve people of other faiths are denied conscience protection. It is almost unnecessary to point out the irony, the shortsightedness, even the cruelty, of such a denial.

Fourth, in the struggle over same-sex marriage, some lawmakers are increasingly hostile to moral and practical arguments about the unique goods intrinsic to opposite-sex marriage, and to citizen demands for conscience protections. It appears that lawmakers are responding more to cultural and media elites who express overt hostility to religion, or they are simply confused about the true meaning and purpose of marriage and the family. Some groups and politicians supporting same-sex marriage brand religious ministries to the poor and vulnerable as “bigotry” and threaten the very existence of those ministries, during a time when the government would be hard-pressed to fund additional services itself. Witness the harassment, and in some cases termination, of Catholic adoption agencies that refuse to pair children with same-sex couples.

Fifth, the expansion of state power, combined with a “creeping” notion of human or civil “rights,” also jeopardizes religious freedom today. Government regulation has spread to nearly every sphere of life and thus imposes more constraints upon a wide variety of religious ministries. At the same time, “rights” language is increasingly applied to human “wants” rather than “needs.” It is used to promote individualism and particular ideologies, rather than universally recognized attributes of human life or dignity. This increase in regulation, combined with “rights creep,” leads directly to refusals to grant religious exemptions, on the ground that people have human “rights” to consensual sexual expression with any other person, or to kill an unborn child, and that “rights” do not permit exemptions for the sake of conscience.

All of these forces are combining to threaten religious freedom at a time when we can ill afford to lose the unique voices and contributions of religious citizens and institutions. Objections to religious freedom on the grounds that religious behaviors and services are “eccentric” or “dangerous” or “against human rights” are contradicted by our historical experience with religious freedom. Furthermore, citizens and lawmakers are quite capable of distinguishing between claimed religious messages or behaviors that might threaten human lives or the common good (e.g., human sacrifice) and those that are merely different means to a good end (e.g., exhortations to practice sexual restraint, or to preserve the centrality of children’s well-being in marriage law). On the grounds of preserving peace and prosperity, strong families, and a robust network of private charitable institutions, and on the grounds of resisting the totalizing inclinations of government, federal and state laws protecting religious voices and ministries—in health care, education, and especially family life—must be enacted and enforced today.

The health of religious freedom in the United States is in large part entrusted to the Congress, to the president, and to state governments. In the near term, our lawmakers need to ensure the passage and enforcement of legislation that at the very least:

• Fixes the PPACA to provide conscience protection for all health care providers, sponsors and insurers.
• Enables religious ministries to continue to operate in accordance with their religious conscience to provide the kinds of educational, health care, and other social services to the vulnerable communities they serve.
• Requires all entities receiving government funds to avoid discrimination on the basis of religious conscience.

A more generous disposition toward religion would be even better—better not only for religious citizens and ministries, but better for the most vulnerable Americans, for American families, and for the nation’s future. For a genuinely healthy national future—for a future in which America nurtures healthy children, personal and group initiative, and volunteerism, while avoiding stultifying bureaucracy and governmental totalism—it is imperative that the next president and next Congress have a firm and intelligent grasp on the real blessing that is our tradition of religious freedom.

Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This essay is part of the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond”
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to its Survival”
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery”
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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The late Avery Cardinal Dulles was one of the great American theologians of my lifetime. He grew up in a Protestant family that was very prominent on the national scene, both socially and politically. His conversion to the Catholic faith was viewed by some at the time as rather shocking. But he knew exactly what he was doing, and why. He once wrote that, “The greatest danger facing the Church in our country today is that of an excessive and indiscreet accommodation.” I think he wrote those words with a heavy dose of irony, because he deliberately chose to leave the morally exhausted WASP establishment at the same time so many American Catholics were desperately trying to force their way into it.

My point is this: For all of its greatness, America has a huge capacity to homogenize new immigrants; to bleach out their personality, their character and especially their beliefs. In the decades ahead, being a Catholic will need to be a conscious choice. The day when culture, ethnicity and habit could sustain a Catholic life is gone—and it’s not coming back. Being truly “Catholic” in 2011—whether we trace our roots to Mexico or France or Ireland or Korea—means one thing: It means living a life of sacrificial witness. And the privilege of that witness will fall especially on leaders.

Alexander Hamilton was arguably one of America’s greatest immigrants. Born in the West Indies, and a friend to George Washington, Hamilton helped to draft the Constitution. But his great achievements for our nation, from writing nearly two-thirds of The Federalist Papers to setting the new country on a course to become a world commercial power, make him one of America’s most revered Founding Fathers.

Hamilton embodies a deeply held American idea: that this is a nation that belongs to no single ethnicity, no one “correct” pedigree. It’s a country where a man who comes from nowhere can turn the rudder of history. It’s a nation where a man who never knew his own birthday—Hamilton was born illegitimate—could take part in the birth of a new order. The waves of immigrants who renew our country in every generation carry on his legacy. They breathe new life into what Washington called the “bosom of America.”

Hamilton, like his fellow Founders, had a lot to say about virtue and principle. He is said to have stated, “He who stands for nothing, will fall for anything.”

The Founders knew the importance of cultivating a virtuous citizenry if their experiment in freedom was to last. They also knew that the only reliable way to secure virtue was through religious faith.

Two years before his death, Hamilton wrote a letter to a friend. In it, he spoke of his desire to form a Christian Constitutional Society. The goal, he wrote, would be to support the Christian faith first, and the Constitution second. The two were seen as mutually supportive. At the time, this was obvious to almost everyone. In fact, religion was viewed as the cornerstone of a free and constitutional society.

Hamilton’s idea never bore fruit. But it shows the way most Founders thought. Our rights come from something greater than our own reason. Without a grounding in God, any claim about the “sacredness” of human life or the “uniqueness” of human dignity is just pretty language. Our rights can disappear as quickly as they were written down. In fact, when we lose our faith in the God who created our rights, the whole framework of American public life begins to weaken. The reason is simple. Our country’s laws and institutions come from a moral worldview shaped by Christian belief.

Obviously, when America was founded, its citizens disagreed about which brand of Christianity was the right one. As the historian Paul Johnson once said, America was “born Protestant,” and Catholics were often seen as intruders. They faced bigotry and even occasional violence for nearly 200 years. But Americans did agree on the importance of religious faith—first because they understood that God is real, and loves us, and will hold us accountable for our actions; and second because faith in God forms the kind of people who sustain a free society.

This is why every attempt at exiling religious faith from our debates over law and public policy is so dangerous. Every such effort contradicts our own history. Religion has always played a vital role in shaping American public morality. That’s not an opinion. It’s fact. The only thing new in today’s discussion of religion and politics is the dishonesty of those who try to frame religion as a threat to public discourse.

Democracy depends on people of conviction fighting for their ideas in the public square—peacefully and respectfully, but vigorously and without apologies. That includes people of religious faith. If we really believe that our Catholic faith is true about God, human dignity and the common good, then our faith has consequences for our private lives and our public behavior—including our political reasoning.

We can’t claim to be a faithful husband or wife and then cheat on our spouse. And we can’t claim to love God and be a “good Catholic,” but then ignore what it means to be Catholic in our business dealings, our social policies and in our political choices. Christian faith is always personal but never private. It either guides our behavior all the time, both in public and in private, or it’s phony. And if it’s phony, we should stop trying to fool ourselves. We need to be faithful Catholics first. If we’re good at that, then every other quality of fruitful citizenship will follow.

We need to remember that America is more than simply “one nation under God.” In the case of the United States—in the light of our history and the founding ideas that shaped us as a people—we are one nation because of our belief in God.

Blessed Pope John XXIII often spoke of the Catholic Church as the soul of the world, the pillar and ground of the truth. What that means is this: One of the duties the Church and her people freely bear is to serve the nation by helping it to nourish its soul. That’s what the Church always seeks in her public service and in her public witness. Politics is the struggle for the soul of the world. This is why Catholics always will be, and always should be, politically engaged.

Now having said all this, I have a few thoughts that Latino leaders may want to consider in a special way. And I need to thank my friend, Dr. Jonathan Reyes, for his help with my reflections here. Jonathan is the CEO of our archdiocesan Catholic Charities in Denver, but he’s also an historian. And being Hispanic himself, he has spent quite a lot of time thinking about the role of Hispanics in America and the future of our country.

Here’s the first thought. Politics is not the heart of what it means to be “Catholic.” The central goal in every Catholic life is knowing and loving Jesus Christ—and then bringing other people to do the same. Political issues are important. We need to address them in the light of the Gospel. But the main work of a Catholic life is evangelization—in other words, the conversion of the world, beginning with our own hearts and then spreading outward to the culture around us.

Here’s the second thought. Precisely because of America’s homogenizing power, Latinos need to protect those qualities—like the importance of family, faith and community—that make up so much of the Hispanic experience. But the Catholic faith is not a subset of ethnicity. Faith, not ethnicity, is the fundamental category of life, which is why Archbishop Jose Gomez so often warns us against a purely “cultural Catholicism.”

Dr. Reyes puts it this way: “Faith, and only faith, is what holds the People of God together. Even during the brutal fights between Irish and German Catholics over public schools, Americanization and similar issues in the late 19^th century, they still saw their disputes as being an argument within the Catholic family. If we make ethnicity our defining issue, then a shared worldview is impossible. What we get instead is an illusion of unity built around some form of liberal multiculturalism. And that isn’t a real worldview at all, but just a rhetorical strategy to justify either particular political goals or the cult of the imperial self.”

Here’s the final thought. Again, in the words of Dr. Reyes, “there’s an irreconcilable difference between America’s radical individualism and the Hispanic commitment to community. American Catholic life, as it stands today, has already been undermined by the cult of the self. We see it in every distorted appeal to personal conscience. We see it in the kind of ‘cafeteria Catholicism’ that throws out the inconvenient parts of Catholic belief but tries to keep the Catholic label. Any project of Hispanic integration with American life needs to expose this problem. Hispanics need to protect their own natural sense of community, but they also need to attack the spirit of self-absorption, practical atheism and consumer vanity that has turned so much of American Catholic witness into just another toothless, religious version of secular culture.”

In a few weeks, I’ll be leaving Denver to become Archbishop of Philadelphia. I’ll say goodbye to a great many people that I love very deeply. This is a personal sadness, but I also look forward to the new family I will love in Philadelphia. And CALL will continue as one of my priorities because it needs to be present and fruitful everywhere in our country. That includes our nation’s birthplace. The United States was born in Philadelphia, and if together we can bring a new and zealous Catholic witness to the home of the American experiment, then we can honestly call ourselves disciples.

The man who founded the city of Philadelphia and the future Commonwealth of Pennsylvania, the great Quaker leader William Penn, once wrote, “If [you] would rule well, [you] must rule for God, and to do that, [you] must be ruled by him . . . Those who will not be governed by God will be ruled by tyrants.” Three centuries later, the American Jesuit scholar, John Courtney Murray, meant something very similar when he said, “Those who deny the sovereignty of God over human society are the most dangerous enemies of human liberty.”

America, from its beginnings, has been a nation of faith and a nation of immigrants. Its laws and institutions depend not on where her people came from, but on what they are willing to sacrifice to keep the experiment alive. CALL is an organization built on leaders. Your witness matters. The most important gift you can give to our country is to lead with a courage, wisdom and character rooted in your Catholic faith. If you do that, the experiment will continue, and thrive—and succeed.


Charles J. Chaput, O.F.M. Cap., Roman Catholic Archbishop-designate of Philadelphia, is the former Archbishop of Denver and the author of Render Unto Caesar: Serving the Nation by Living our Catholic Beliefs in Political Life. This essay is adapted from the keynote address Archbishop Chaput delivered this past weekend at the CALL (Catholic Association of Latino Leaders) national gathering.

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