In Defense of Religious Liberty

By David Novak

ISI, 250 pages, $18

William James once quipped that “in this age of toleration,” no one “will ever try actively to interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it.” The Supreme Court of the United States has often and similarly observed that religion is and must be a “wholly private matter.”

No, as Rabbi David Novak explains, it isn’t. Of course, no one would disagree with the claim that “religion is private,” if that is taken to refer to an appropriate respect on the government’s part for the liberty of conscience and the freedom of churches: Public authority should neither coerce professions of faith nor meddle in church polity.

It is not the case, however, that religious expression and witness have no place in civil society or that religious faith has nothing to say to questions of public policy and the common good. Sometimes, believers are called precisely to “make a public nuisance.” Indeed, as Justice Clarence Thomas has put it, it would be “most bizarre,” given our constitutional commitment to religious freedom, if our laws or public philosophy expressed any “hostility for those who take their religion seriously.”

Of course, to mount a serious defense of religious liberty, one must understand what that liberty is and why it is worth protecting. But reaching such an understanding has proved, for more than a few contemporary scholars, harder than it sounds. One senses in current academic conversations a desire, perhaps just a vestigial one, to protect religious liberty in and through law, but also a reluctance or inability to explain why we should. One of Novak’s important and timely tasks is to do just that.

“To speak of religious liberty,” he observes in his book In Defense of Religious Liberty , “is to speak of three surprisingly different things.” First, there is the “liberty one gains from being a part of a religious ­community and its tradition.” The late John Paul II, of course, would have agreed. At a time when religion is widely regarded as an anachronistic, self-hobbling constraint, Novak reminds us that there are different, deeper ways of thinking about “freedom””ways that do not reduce freedom to license but point instead to becoming what we were made and ought to be in relationships, in communion, and in public.

A familiar notion of religious liberty is the liberty that religious believers and communities claim from and against the world: the “freedom from subordination to the political powers that be.” Lawyers are probably most comfortable with this version, as it involves the regular stuff of First Amendment cases and decisions: the permissibility of exemptions for religious believers and institutions, for instance, from otherwise generally applicable laws. Novak insists, however, that religious liberty in this sense is not merely a collection of carve-outs from the state’s otherwise comprehensive power. Indeed, he contends, the “political autonomy of religious communities,” which the “secular world looks upon . . . jealously,” is “prior to the state, both historically and ontologically.”

Novak’s focus, in his Defense, is on a different version of religious liberty: the “freedom of a religious community to bring its moral wisdom to the world””to “sing the Lord’s song on strange ground.” It is a freedom that is “exercised for the world, even though many in the world may resist it.” So often, discussions and debates about law, religion, and policy are animated by a concern about keeping religion in its place and cataloging the circumstances in which religion is to be permitted to make its claims and present its vision. Always lurking, it is thought, is the danger that religion will be “imposed” on the civic, the political, or the secular. Novak’s case, though, is again consonant with John Paul II’s: “The Church proposes; she imposes nothing.”

“Make no mistake,” Novak warns, “religious liberty is being seriously threatened today.” Religious liberty, “the claim that a historically continuous ethical community makes upon a secular polity,” is vulnerable and this vulnerability is easy to miss because we so often think of religious liberty exclusively in terms of privacy and individual exemptions. We imagine that, so long as we are permitted to be “personally spiritual,” liberty is alive and well. But as Novak insists, “Becket was not martyred because he was ‘spiritual.’” Religion makes claims, and religious liberty necessarily includes the liberty to make them.

Of particular interest to Novak is the debate over same-sex marriage and the increasing pressure on religious believers to censor their reservations about it, particularly in Canada, where Novak lives and teaches. He notes that this debate implicates religious liberty not because the legal recognition of same-sex unions is itself a burden on that liberty but because religious communities are increasingly being told that they may not make their case. To “deprive a religious community of the right to make moral claims,” he contends, is both antireligious and undemocratic. What’s more, he observes, religious freedom”the freedom to make moral claims from out of a religious tradition”is not only a claim on democratic society, it is a “gift for it as well.”

Perhaps the most striking and distinctive aspect of In Defense of Religious Liberty is Novak’s consistent, almost dogged, insistence that religion is not private, personal, or individual. It is, necessarily, relational, communal, traditional, and public. “Faith,” as he puts it, “is not so much a leap from the rational into the super-rational as it is one’s acceptance of a communal narrative by including oneself within the narrating community.” A legal regime that recognizes and protects a right to accept this narrative will also, necessarily, acknowledge the authority of that community to govern itself and those who have accepted it.

In Defense of Religious Liberty includes, among other things, a fascinating discussion of the morality of human rights in the Jewish tradition and from a “Biblical-Talmudic” perspective. (Here, it is worth noting that Novak’s book complements nicely another recent work, Nicholas Wolterstorff’s Justice: Rights and Wrongs , reviewed in the October 2008 issue of FIRST THINGS .)

Novak’s final chapter is a jurisprudential reflection on the connection between God and the law. This connection, Novak suggests, is a close and crucial one. Indeed, the connection underscores the grossness of the error of excluding religious claims from the conversation about the common good.

“Ironically,” he concludes, “those who cannot affirm either the cosmic order or the orderer of the cosmos have their human rights protected for them by the democratic commitments of those who have a moral religion or a religious morality.

“But how, then,” he asks, “can our doctrinaire secularists attempt to exclude?.?.?.?their very protectors from the conversation any democracy needs to justify its own life and future?” How, indeed.

David Novak’s work is a powerful and provocative defense of what Thomas Jefferson called our nation’s bold experiment in religious liberty”an experiment his friend James Madison confidently hoped “promised a lustre to our country.” That experiment, our Constitution, certainly protects the right to keep one’s faith, or lack of it, private. It does not, however, require us to privatize our faith”to disintegrate our lives”before entering into the public square or taking up the responsibilities of citizenship.

As Novak shows, it would be highly presumptuous for government to instruct religious believers and communities as to the limited scope of religion’s concerns. Judge Janice Rogers Brown, now a federal judge sitting on the United States Court of Appeals, put the matter well when she questioned the often asserted “sharp divide between the Church and the world, the spiritual and the temporal, or religion and politics.” An appropriately rich and well-worth-defending understanding of religious liberty will include an appreciation for the fact that, in her words, “the internal spiritual life of [believers] and institutions must always move outward as a sign and instrument for the transformation of the larger society.”

Richard W. Garnett is professor of law at the University of Notre Dame.