One of the hallmarks of religious liberty protections is that they protect people of all faiths, even if their beliefs seem unfounded, flawed, implausible, or downright silly. Recognition of a right to religious freedom does not, however, depend on religious skepticism, relativism, or indifferentism. Rather, it rests on the intelligible value of the religious quest—the activities of seeking to understand the truth about ultimate questions and conforming one’s life accordingly with authenticity and integrity.
The Catholic Church committed itself to precisely this understanding of religious freedom in the Declaration on Religious Liberty of the Second Vatican Council, Dignitatis Humanae. In doing so, it did not embrace the idea that “error has rights.” Rather, it recognized that people have rights—including the right to pursue religious truth and, within the limits of justice and the common good, to act on their judgments of what truth demands. All people possess these fundamental rights, even when they are, in some respects, in error. Kevin Seamus Hasson, the founder of the Becket Fund, captured this in the title of his book The Right to Be Wrong. Hasson rightly argues that religious liberty is for A to Z, Anglicans to Zoroastrians.
This basic view of religious liberty has also found a place in our civil law. James Madison’s Memorial and Remonstrance puts the point well: “The Religion then of every man must be left to the conviction and conscience of every man.” It is an “arrogant pretension” to believe that “the Civil Magistrate is a competent Judge of Religious Truth.” The First Amendment has been understood to embody this vision of religious liberty for much of our history, even as other aspects of religious free-exercise case law have changed.
The Religious Freedom Restoration Act (RFRA) reflects the same vision. Passed two decades ago with a unanimous voice vote in the House and by a 97-3 vote in the Senate, RFRA was signed into law by President Clinton. RFRA provides a reasonable balance between religious liberty and the requirements of public order. It says that government can substantially burden a sincere religious belief only when it is pursuing a compelling government interest in the least restrictive means available.
In a series of articles this summer at First Things, The Catholic Thing, and the Liberty Law Blog, Hadley Arkes has tried to recast the argument for religious liberty, not in terms of the sincerity of the religiously held belief and the competing concerns about public order, but in terms of its content, particularly in terms of its truth. Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. It is critical that we be clear on the foundation and the scope of religious liberty.
I. Some Practical Considerations on Religious Liberty in Court
Before getting to the fundamental questions about the nature and scope of religious liberty, consider some more mundane issues of religious liberty in court. Arkes aims his critique at judges and lawyers who make what he sees as the wrong sorts of arguments. He writes,
No one, of course, takes seriously the notion that the law would refrain from judgment when it comes to the sacrifice of widows on a funeral pyre, or the withholding of blood transfusions from a child, even if it were claimed, as a matter of “belief,” that these lives had spiritually ended. These words of the Court, disclaiming judgment, seem part of a Brigadoon-like world: they seem to flare into existence in the magic of the moment—only to evaporate when sedate reflection comes crashing in again. . . .
If we are really testing sincerity, some of these cases could be determined with truth serum or a lie detector test. But who would take any of that as a “justification” for releasing people from the obligation to obey any law we regarded as defensible . . . ?
Missing in these paragraphs is any consideration of the second half of RFRA: a compelling government interest being pursued by the least restrictive means. Preventing human sacrifice and ensuring the physical health of legal minors are certainly compelling government interests, and protecting everyone from such assaults seems to be the least restrictive way of serving those interests.
Arkes might think that the content of the beliefs makes all the difference. After all, true religious beliefs would never require anyone to act in a way that violated the demands of justice or the common good. But even if it’s never socially harmful to protect true beliefs, we can’t infer that a false belief is never worth protecting. Sometimes it is. It’s not disqualified by being false, because even acting on a sincerely held false belief can realize the good of religion. Sometimes, we can manage to respect that good while still securing the overall common good. When we can do this, we should. That was the lesson of Vatican II and RFRA.
Yet even true religious beliefs may be thought to be at odds with justice and the common good. After all, we aren’t governed by philosopher-kings with perfect clarity about moral truth. In the real world, government officials make mistakes. Indeed, at issue in the Hobby Lobby case were true beliefs about the morality of killing unborn life. Yet officials in the Obama administration (by issuing the HHS mandate) and various federal judges (by siding against the plaintiffs) concluded that these beliefs were at odds with the demands of the common good.
The Language of “Beliefs”
Arkes is particularly concerned that the language of “beliefs” detaches belief from truth, reason, and evidence. He pleads with lawyers and judges to stop “engaging in the gratuitous move of reducing ‘religion’ to ‘beliefs’ held ‘sincerely,’ quite detached from the canons of reason and claims of truth.” And he faults the plaintiffs in the HHS mandate case as well: “the Green family professed its ‘sincere belief’ that life begins at conception. To which some of us said: Belief? That proposition has been an anchoring axiom in the textbooks on embryology and obstetric gynecology.” Here I think Arkes is too narrowly construing both the requirements of RFRA and ordinary linguistic usage.
The Green family and their lawyers framed their case in the way that the law required—and one can hardly fault them for arguing their case so as to win. Moreover, Arkes’s description of their position is incomplete. The Greens relied not only on their belief that life begins at conception but also on their belief that it is wrong to do anything that might kill that life. Should they have really made the truth of their beliefs the core of their legal argument—especially when we live in a regime that has declared a constitutional right to abortion and when the drugs and devices in question are FDA-approved?
Arkes would have the Greens and their lawyers make the foundation of their case the truth that abortifacients are morally wrong. No doubt it is a worthy project to defend the truths of the natural law. But that is primarily a battle for the public square and legislative arena, not the courts. And disagreement about this moral truth need not prevent us from seeking religious freedom—the Greens were asking, after all, for an exemption from mandated coverage of FDA-approved items with which many Americans, if not a majority, have no moral qualms.
Apart from the unlikely success of such a litigation strategy, consider its broader implications. Does an Orthodox Jewish butcher in a case about serving pork have to prove that eating pork is immoral? Or, for that matter, what about an Orthodox Jewish prison inmate: to succeed in a suit requiring the prison to serve him kosher meals, does he have to prove the righteousness of kosher dietary rules? And how about the Little Sisters of the Poor: will that case hinge on their proving that they have the right moral beliefs about all twenty FDA-approved contraceptives? Do we really want to discard Madison’s advice and empower the government to adjudicate religious truth?
Arkes falters when he criticizes the language of belief because, when someone says, “I believe murder is wrong,” it does not imply that he believes it without rational justification or denies that it is objectively true. I believe murder is wrong because I believe in human dignity. Likewise, when Thomas Aquinas said, “I believe in God” every Sunday as he recited the Credo, he certainly hadn’t forgotten about his five philosophical proofs for God’s existence. The word “believe” in both sentences is being used synonymously with “judge” or “conclude.” (For that matter, I believe that dogs are mammals and that Bismarck is the capital of North Dakota.) There is no reason to assume, as Arkes does, that “belief” implies a lack of justification or objectivity.
But look at where Arkes would leave the serious Divine Command Theorist. Arkes’s protections for religious liberty have little room for those who do not share his embrace of natural law—those who cannot offer a rational defense of their beliefs because they believe none exists. And how about religious believers whose religion demands more than what the natural law demands—say, the obligation to go to Mass on Sundays or to avoid meat on Fridays? These certainly are not derived solely from the natural law—do they not deserve protection? Just as Arkes conflated “belief” with “unjustified belief,” so too he has conflated “justification” with “purely natural justification.” RFRA rightly protects religious groups that don’t believe in natural law and religious obligations that go beyond natural law.
II. The Foundation and Scope of the Religious Liberty Right
At one point, Arkes turns his sights on me. Quoting me, Arkes writes:
But in these moments when magic words about “beliefs” are given a new loft, we find serious people backing into constructions that would on other occasions embarrass them. And so, getting with the program, one of my favorite commentators remarked about the Hobby Lobby case that:
The Court did not second-guess any of these beliefs [of the Greens or Hahns], nor did the Court judge whether these beliefs are right or wrong, true or false. The Court merely determined that the beliefs were sincere. In fact, the Court refused to render judgment, as the Obama Administration and Justice Ginsburg seem to have done, on whether the Hahns and the Greens had the “right” beliefs. Justice Alito notes that “HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.” But religious liberty, after all, is about “the right to be wrong” even in the pursuit of religious truth.
But as Aquinas and Lincoln both taught us, there cannot be a coherent claim of a “right to do a wrong.” It is one of those self-refuting propositions, which may be explained quickly in this way: People claim a “right to do a wrong” only when others are pressing on them, threatening to impose a policy they find objectionable. By saying that they have a “right” nevertheless to hold to their position, they are saying that people “ought not” impose their policy on them—which is to say, that it would be “wrong” of them to do it. But their adversaries now turn upon the complainers and point out that they too have this “right to do a wrong.”
When we find polished, accomplished people invoking now a “right to be wrong,” a line that cannot form a coherent ground of argument on any matter, we may see the signs of an argument soaring with metaphor, but now untethered.
Unfortunately, Professor Arkes—out of a spirit of generosity, no doubt—did not name me or link to my essay, making it harder (though certainly not by design) for readers to discover that my argument isn’t the one he perceives in my writing. Note that I write about “the right to be wrong” and Arkes responds with a critique of “the right to do wrong”—only then to return to a “right to be wrong” and conclude that it “cannot form a coherent ground of argument on any matter” and is the sign “of an argument soaring with metaphor, but now untethered.” This misreads my argument and misrepresents the underlying issues.
Arkes and I agree that there is no natural right to do moral wrong. But having the wrong (i.e., mistaken) religious beliefs need not entail doing any moral wrong at all. Thus, religious liberty, understood as the right to act according to even false religion, need not involve a right to do a moral wrong. Indeed, understanding the nature of the religious good and our duties to seek it provides “coherent grounds of argument” fully “tethered” to human flourishing, the basis of natural rights and natural law.
The Natural Law Foundation of a Right to Religious Liberty
The natural law defense of a right to religious liberty is based on the moral truth that sincere religious activity, freely undertaken, is valuable in itself and deserves the space to flourish.
Sound philosophical reflection identifies religion as a basic aspect of human well-being. As a reason for human action, religion corresponds to the search for, adherence to, and relationship with any more-than-merely-human source(s) of ultimate value and meaning. That religion is an intelligible end of human nature explains the intelligibility of the behavior of Muslims, Jews, and Christians just as much as it explains the behavior of agnostics, atheists, and anti-theists. While all six groups come to different conclusions, all are propelled in their religion-related activities by a basic (if only implicit) awareness that humans really are better off—intrinsically so—when they sincerely seek the truth about ultimate questions and then live accordingly.
In other words, people realize the good of religion even if they make (good-faith) theoretical mistakes about the truth. Assuming that their religious act is sincere (and not an attempt merely to satisfy social expectations), even imperfect expressions of religion are humanly valuable. That is, if one makes a sincere attempt at discovering religious truth and adhering to what one finds, even if one makes an intellectual mistake, one’s religious act is of real value.
And it is this value that gives governments a reason to protect (within the limits of justice and the common good) the ability to search for truth and live by one’s best judgments about it. For acts of adherence and divine-human relationships can have their distinctive human value—can be genuine religious acts and relationships—only if they are freely chosen. Precisely because of the good at stake in religious actions and the nature of the act that realizes this good, religious acts of searching (exploration and conversion), adherence (doctrine on faith and morals), and relationship (worship and conscientious action) must be free from all coercion.
The right to religious liberty has its primary force precisely because of a prior duty to pursue the good of religion by seeking out the truth about God and the cosmos. Indeed, as Madison explained:
What is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.
The government protects the space for citizens to fulfill this duty according to their own best judgments. Indeed, Stanford Law Professor Michael McConnell makes just this point in an essay for the Yale Law Journal:
In the liberal tradition, the government’s role is not to make theological judgments but to protect the right of the people to pursue their own understanding of the truth, within the limits of the common good. That is the difference between “the full and free exercise of religion” (Madison’s formulation) and mere “toleration.” Toleration presupposes a “dominant group” with a particular opinion about religion (that it is “false,” or at least “unwarranted”), who decide not to “eradicate” beliefs they regard as “wrong, mistaken, or undesirable.”
The natural law right to religious liberty is not unlimited. It is bound by the natural limits of justice and due regard for the common good. Thus, the state can rightly limit religious liberty when justice and the common good require it. In such cases, the limitation of religious liberty is an incidental but unavoidable (and thus justified) side effect of the government’s action to secure justice. In our legal tradition, this nuance is reflected in RFRA’s requirement that regulations curbing religious expression serve a compelling government interest pursued by the least restrictive means possible. (For more on the natural law case for religious liberty, see my review of Brian Leiter’s Why Tolerate Religion?)
III. Concluding Thoughts on the Right to Do Wrong vs. the Right to Be Wrong
I said earlier that Arkes and I agree that there is no natural right to do moral wrong. But there are positive law (constitutional and statutory) rights to do moral wrongs—and they exist for good reason. Unfortunately, Arkes conflates natural rights and positive rights.
For example, our constitutional rights to free speech, freedom of the press, and freedom of assembly give us positive rights to do some moral wrongs. Government may not prevent us from being rude at home, even though being rude is wrong. It may not prevent us from publishing trashy romance novels, even though a case can be made that such literature is wrong. It may not prevent us from assembling to rally for abortion rights, even though advocating the wrong of abortion is itself also wrong.
Of course, freedoms of speech, press, and assembly do not provide unlimited protections for every moral wrong, however harmful to the common good: they do not protect incitement to violence, malicious libel, or group trespassing, for instance. But we and other political communities do protect political rights to do some wrongs precisely out of concern for human flourishing and the common good. By limiting the jurisdiction of government, we prevent flawed, fallen, weak, error-prone human beings from deploying the force of government in oppressive ways. By reducing the range of judgments the government can make, we reduce the risk that it misjudges. So, we can coherently speak of a constitutional right to do wrong. We need to combine Aquinas’s account of natural law with Augustine’s account of the libido dominandi.
That said, religious freedom is not a right to do wrong, though it does protect a right to be wrong. Human imperfection ensures that all of us are wrong about some things. Yet it is unjust, a violation of human dignity, for the coercive power of law to be used to punish mere errors of thought or—so long as there is no injustice or other violation of the common good—of honest religious practice. If we are to fulfill our moral duties to seek the truth about God and live conscientiously in line with our judgments, then the law must honor and protect our right to religious freedom—even when we are, at least partially, in error. The right to religious freedom is for everyone, not just for those with the “right” beliefs.