Does freedom of conscience lead to a naked public square? When religious people try to protect their own rights of conscience, does this undermine their ability to advance their convictions publicly? In responding to the recent HHS mandate for religious employers to provide contraception and abortifacients, religious groups and individuals have argued that their rights of conscience trump any potential desire of their employees for these medications. Their private religious convictions about contraception and abortion prevent them from taking these actions, and under the First Amendment they cannot be coerced to violate those convictions.
However, these religious people are not trying to be only privately religious. They have convictions about abortion and contraception—and immigration, economic justice, and war, for that matter—that they want to argue in public and legislate. And they ground these convictions not only in their own religious teachings, but in the natural law and public reason. They seek to live their religion privately and to advance and act on its claims publicly. But, in the HHS case, if they frame the debate not about the rightness or wrongness of abortion and contraception, but of private religious convictions, doesn’t that knock the public foundation out from under those claims? Doesn’t it make religious teaching about abortion and contraception—or, in another case, any other issue of public import—just a matter of private religious conviction, like dietary laws or smoking peyote?
Recently, Patrick Deneen made such an argument:
By these appeals to the “rights” of religious organizations to hold certain religious beliefs—whatever those may be—and by an appeal to “conscience” informing that belief—no matter what it may hold—critics of the HHS policy have framed their response in the dominant privatistic language of liberalism. Their defense rests on the inscrutability and sanctity of private religious belief. It borrows strongly from sources of private religious devotion that lays no claim to public witness, in keeping with liberalism’s dominant mode of allowing acceptable religious practice so long as it remains outside the public square.
The wider problem, as Deneen sees it, is with liberalism itself, which cordons off religious convictions from the public square. According to liberalism, religion is fine, so long as it is private, and its arguments about final ends and goods are permitted as long as they are not forced on others. But, Deneen notes,
The Catholic faith is, by definition, not “private”; it involves a conception of the human Good that in turn requires efforts to instantiate that understanding in the world. As such, Catholics represent a threat to the liberal order, which demands that people check their faith at the door and acknowledge only one sovereign in the realm of proscribing public behavior—the State.
Framing the argument over the HHS mandate in these liberal terms of religious freedom, Deneen concludes, gives the argument a chance of being heard. However, “it should be acknowledged (as the response to the ‘Compromise’ reveals) that the Church will ultimately lose the argument simply due to the fact that the way it is framed already represents a capitulation to liberal premises.” This is so because “the real debate is not over religious freedom, in fact: it is over the very nature of humanity and the way in which we order our polities and societies.”
In so arguing, Deneen accepts the current administration’s definition of liberalism. This concedes more than it needs to. Yes, liberalism makes a distinction between the private, free exercise of religion and the government’s endorsement of a particular faith. But there is a historical difference between toleration and religious liberty, even if we sometimes use the two terms interchangeably today. Toleration puts up with minority religious believers because it is more convenient; religious freedom declares that they are allowed to practice their faith, privately and publicly, not because the government has given them permission, but because the permission is not the government’s to withhold. Liberalism can—and has—endorsed mere toleration. But it need not, and in America it has not.
Furthermore, even before the twentieth century, religious liberty and talk about the rights of conscience had formally entered into the Catholic tradition. This development grew over time, from the scholastics to John Henry Newman and John Courtney Murray, but it flowered in the Second Vatican Council’s declaration “Dignitatis Humanae.” There, in light of Catholic tradition, the Council Fathers made Catholic arguments on Catholic grounds that religious freedom truly is a Catholic and Christian thing. Some have objected to this development—most notably the schismatic Society of St. Pius X—but most have come to see that the freedom to follow the dictates of one’s conscience in matters of religion is not an unfortunate concession to the modern age but a sound development of Christian truth. Today, as George Weigel recently wrote, paraphrasing Fr. Richard John Neuhaus, “the overwhelming majority of Christians believe that it is God’s will that they be tolerant of others who have different notions of God’s will. Religious tolerance, for Christians, is not a mere pragmatic accommodation to the fact of religious difference; it is a virtue, a moral good.”
Furthermore, protecting the freedom of conscience is not simply a concession to the privatizing tendencies of liberalism. Arguing for religious liberty need not entail denuding the public square. Religious liberty strives to protect a minimum standard: The government cannot coerce a person to perform an action that his conscience deems wrong on religious grounds. It shields the private exercise of religion not to keep the exercise of religion private, but rather as a necessary prerequisite for making it public. Moreover, claiming opposition to something on the grounds of private religious conscience need not inhibit separate public arguments against that thing.
For example, consider a young pacifist Quaker during the Vietnam War. The Quaker’s religious convictions prevent him from fighting in the Vietnam War. They also make him believe that all wars, not just the Vietnam War, are wrong, and that part of his duty as a Christian and a citizen is to make public arguments that this is the case. If the government seeks to ignore his conscientious objection and draft him, the Quaker can claim that the government should not violate his conscience and make him fight in the War. But in making that argument, he does not cede the separate argument that Vietnam is an unjust war—or that all wars are unjust—and he does not lose the ability to make such arguments publicly. Indeed, claiming the right not to fight in the War is his first step toward further public advocacy, on public grounds, that the War is unjust and should not be fought at all.
Applying these principles to the present debate, we see that arguing for religious freedom is not a concession of the larger argument about the public good, nor is it a necessary but enfeebling concession to the liberal state. Rather, it serves as the foundation for people of faith to live out their faith and, in doing so, make publicly accessible arguments about their convictions. In other words, it helps win the battle and the war. Of course this requires political savvy and practical wisdom. Religious leaders and advocates must be wise as serpents and innocent as doves. But in arguing for religious liberty they bolster the foundation of a free society. Instead of conceding to the state, they make a claim—and a liberal claim, at that—against it so that they can live out their convictions and all the better argue for the common good.
Nathaniel Peters is a doctoral candidate in theology at Boston College.
Patrick Deneen, Religious Liberty?
George Weigel, What Would Father Richard Say?
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