Domestic Challenges to Religious Liberty—From Left and Right

Religious freedom in America is caught between opponents on the left and the right. The second in a two-part series.

In yesterday’s essay, I described the threat of both religious and secular totalitarianism, which threaten religious liberty on a global scale. Today, I focus on threats that are closer to home.

The Challenge from the Left

I will start with the challenge from the left because I think it’s more obvious and better known. In the big picture, there is some good news: important religious liberty cases have come up nine to nothing in the Supreme Court. Admittedly, many of the cases on the most sensitive social issues have been five to four. Other political and legal trends are worrying, such as the failure of the original Religious Freedom Restoration Act in Indiana and similar problems elsewhere, not to mention many actions by the Obama administration.

More worrying still are the sociological trends. It is a cliché by now that the fastest growing religious group in America is the “nones”—not religious sisters in habits, but those who check “none” on surveys of religious affiliation. People who do not value religion are unlikely to value religious freedom. When religious freedom is accused of being nothing more than camouflage for bigotry, we must do more than simply assert that we have the right, under the First Amendment, to be bigots. We must make an affirmative case for the value of religion and therefore of religious freedom. Otherwise, we will soon see legislatures, courts, and agencies redefining the right of religious freedom and narrowing the scope of its protection. If Americans do not appreciate the importance of religion, then religious freedom will fall to claims of discrimination.

Underlying the identity politics of sex and the current attacks on religious freedom as discrimination is a postmodern—or rather hypermodern—denial of human nature that amounts to a rejection of all reason and all authority. This movement, in essence, rejects anything that stands in the way of the radical personal autonomy to choose, unrestrained, not only what we do, but even what we are.

One central consequence of this denial of human nature is that it leads ineluctably to a denial of human rights. Without a firm view of human nature, we cannot construct a coherent account of human rights. I am aware, of course, that the people I have in mind here claim all sorts of things in the name of human rights. But the new menu of human rights is selective, subjective, and, finally, indefensible.

Indeed, the contradiction of inventing some new rights while disparaging others proves the precise point I wish to make: that many on the left have sufficiently confused the concept of rights as to make it useless. The inconsistency is built into their thinking because, without reason and nature, there’s no longer a sound philosophical basis for discovering what is a right and what isn’t. Having abandoned the proper grounds for human rights in order to make room for their ever-expanding list of demands, they have left the concept of rights stretched so thin that the very idea is endangered. It’s not just that the right of religious freedom is under attack because traditional beliefs are a threat to radical autonomy; the notion of rights itself is under attack.

So that’s the view looking to the left. Now on to the right.

Challenges from the Right 

I want to discuss two separate strands on the right, and I want to be very clear that I’m distinguishing them.

The first strand I have in mind is the alt-right, a term that lately seems to have disappeared from our national vocabulary as suddenly as it appeared. Nevertheless, the phenomenon bears addressing, if briefly. In a way, the alt-right is like those I’ve described on the left in that it represents another kind of identity politics and rejects the inherent dignity and equality of all human beings captured so memorably in the Declaration of Independence. Insofar as the alt-right is on the right at all, it is right wing in a way that is mostly alien to American conservatism, which is a version of classical liberalism. This fundamental divide between the alt-right’s nationalistic and racial identity politics and classical liberalism is partly why the antagonism between the Republican party’s uneasiest of bedfellows is so bitter.

Yet there is another challenge to classical liberalism from the right, and it is a significant one. In the realm of ideas, these critics are much more consequential than the alt-right, and they may have more long-term political sway because they dwell among the elite opinion-makers. Let me note that this includes some people I like and respect, even as we disagree.

I mentioned earlier that we need to safeguard the cultural and then the political and legal conditions that make religious freedom possible. As I see it, those conditions arose from the confluence of Greco-Roman and Judeo-Christian ideas and civilizations. Yet, even among those who acknowledge the Christian roots of the American system specifically, some argue that the fusion of Christianity and Enlightenment thinking drew too much on the latter—put crudely, that America is too much John Locke. For these critics, the problem with classical liberalism isn’t that we’re doing the American experiment wrong, that we’ve lost our way or forgotten the vision of the Founders, but that the American experiment was fatally flawed and bound to fail from the beginning. They reject classical liberalism in principle and especially its emphasis on individual rights.

I accept that the individualist tendencies of classical liberalism need to be balanced with other values, such as community and authority, but not because classical liberalism is itself poison. Indeed, I think all conservatives agree that individual rights are not enough, but the question is whether they are actually the problem. Though it would be overstating things to say that these thinkers constitute a group or a school of thought, there is a constellation of figures on the right who, in different ways and for different reasons, variously question political liberty, economic liberty, and religious liberty.

One of the most famous critics on the right of our current state of affairs is the blogger Rod Dreher, author of The Benedict Option. First, a disclaimer: I know Rod Dreher, and I know his book, and he is not arguing for many of the things that have come to be associated with the phrase “Benedict Option.” But, because of what that phrase has come to mean for so many, it is a handy term. In defining the Benedict Option, Dreher sometimes uses the phrase “strategic retreat,” which is more modest. But, for others, the Benedict Option means “heading to the hills” or “circling the wagons.”

Whatever Dreher himself means, those others are the folks I’m concerned with. For those who see the ills of our society and accept that some reaction is necessary, which includes me, the debate over what to do really matters and is quite revealing. The question for Benedict-option advocates of all stripes is: What exactly do you intend in your retreat? Is the plan to escape classical liberalism altogether or to batten down the hatches and ride out the storm until classical liberalism comes back to its senses? Do these people want their Benedict-option communities to be oases of classical liberalism in a world gone mad, or will their communities be refuges from classical liberalism?

I joked with Dreher that his book ought to have been titled Live Like Orthodox Jews, but there is an important division between Modern Orthodox and Ultraorthodox Jews. Modern Orthodox Jews like myself cluster in small, walkable neighborhoods, insist on sending their children to Jewish schools, emphasize regular prayer—all things Dreher recommends. Ultraorthodox Jews do all of that and more, but they do it in the context of an in-principle rejection of Western culture and values.

Again, leaving aside what Dreher himself wants, let’s ask what the related critics of classical liberalism envision: Is their goal to build a newer, better, likely smaller Christendom, or is the goal to create just enough space to rebuild a Christian culture within a classical liberal order? Do they wish to reground individual rights on a true and sound basis, or do they want to instrumentalize, minimize, and relativize individual rights, which they see as inimical to the common good in the long run? Do they believe in political, economic, and religious liberty not just in prudence but in principle? Do they believe it was wrong for the pope to kidnap Edgardo Mortara or just poor judgment about the consequences? In the end, do they see classical liberalism and Christianity as compatible or incompatible?

Let me repeat my earlier concession. The critics may say that I am naïve about classical liberalism, but, if so, my naiveté only goes so far. I am not here to contend that religious freedom and individual rights are enough on their own. That was not the Founders’ view, and it is not mine. As John Adams said, “Liberty can no more exist without virtue and independence than the body can live and move without a soul.” When I talk about preserving the conditions that nourish the best features of the American order, I recognize that liberty alone is insufficient. Virtue, which requires religion, is also necessary. To be sure, classical liberals and the critics acknowledge that virtue and religion are necessary for a flourishing society. But the critics contend that classical liberalism itself necessarily, inevitably undermines the very conditions that make its own existence possible—in other words, that classical liberalism is cannibalistic. They argue, or at least imply, that individual rights rot a free society from the inside.

If they’re right, then it is futile to try to foster a Christian culture within a classically liberal order for the long term. This is why we hear more and more talk today about integralism, about un-separating church and state, about Christian monarchists. At risk of oversimplifying, I will say that those conversations don’t sound like they’re about restoring a Christian culture but about restoring Christendom.

A Counter-Movement

So let me counter one Catholic intellectual movement with another: namely, the movement that culminated in the Second Vatican Council and specifically the Council’s declaration on religious freedom, Dignitatis Humanae. The critics are correct to worry about rights when “rights” come to mean the freedom to do whatever you feel like doing. But the best versions of classical liberalism have never accepted that.

The correct view is embodied in the old distinction in our language between liberty and license. License is the freedom to do whatever you want. Liberty is the freedom to pursue the good. What is so important about Dignitatis Humanae is that it points us to a proper understanding of rights by grounding the right of religious freedom in the good of religion. Rights are justified in virtue of the goods they allow us to pursue. That is, we cannot understand what rights are until we understand what rights are for. To recover a proper account of rights, we must start with a proper account of goods—and the good. Once we know what is truly good for our nature, what is truly part of human flourishing, then we can know which rights are real and which aren’t. Free speech, for example, is essential to the good of truth because true knowledge must be held in light of all available evidence and arguments. And religious freedom is essential to the good of religion because in order to be genuine it must be freely chosen. The rights protect the goods.

Let me quote one passage along those lines from Dignitatis Humanae:

It is in accordance with their dignity as persons—that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility—that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature.

Underpinning the right is a good—even a duty—toward which the right points and that it safeguards.

Recovering the Foundation of Human Rights

Now let us turn back to international religious freedom for a moment. In many places, as you can imagine, we are not asking whether religious freedom will be preserved but whether it will emerge. And it will matter in these places not just whether the idea of individual rights gains hold but what notion of individual rights. Insofar as liberalism does spread—and it may not, but insofar as it does—will it be the kind that cherishes and nurtures religious freedom, or will it be the kind that despises and dismisses it?

What Islam, for example, needs, I think, is a ressourcement in the spirit of Dignitatis Humanae. The caliphate has no room for individual rights, as we have seen, and no version of faithful Islam will want to make room for a form of liberalism that shreds religion, nor should it. In contrast to the worst excesses of radical individualism today, Dignitatis Humanae makes it possible to explain why religious freedom is good because it starts with why religion is good. This is the kind of foundation rights need.

Religious freedom today is caught between opponents on the left and the right. On the left, some who fight in the name of individual rights distort and weaken the concept so much as to make it meaningless and indefensible. Sometimes they explicitly attack religious freedom head on, in the name of more legitimate or more pressing so-called rights. On the right, witnessing the havoc in our society wreaked in the name of liberty, some have concluded that liberty is the problem. In these circumstances, we need to discover—or recover—a proper account of rights. That begins with a proper grasp of the good of religion and, finally, all the goods that constitute human flourishing.

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