Unlike most other supporters of same-sex marriage, Douglas Laycock has spoken out in defense of Americans compelled to bake cakes or arrange flowers for same-sex weddings. This is cause to admire him, and to doubt his arguments. For he presents his own view of religious freedom as uncomplicated and capable of winning wide assent, when in fact this view is shared by very few men.
In his response to my essay on the limits of religious freedom, Laycock correctly notes that America is unlikely to be governed by men who share all my views. But the same point could be pressed against him. His impressively expansive view of religious freedom commands, I would venture, fewer adherents than dogmatic Catholicism.
Further, even if Laycock’s views were widely held, they would be insufficient. In his view, religious freedom may be limited only when it causes “substantial and tangible harm.” This is a gimcrack formulation, superficially appealing, but flimsy.
During the second half of the twentieth century, legal scholars began to champion the so-called “harm principle” derived from the introduction to J. S. Mill’s On Liberty but generally stripped of the careful qualifications Mill attached to it. Their arguments helped to overturn restrictions on obscenity and homosexuality on the ground that these were harmless vices.
In time, though, the harm principle became less useful to the partisans of liberty. Advocates of almost every viewpoint learned to employ it. Feminists explained how obscenity harmed women. Exponents of the broken-window theory detailed the harms caused by ostensibly victimless crimes. Social conservatives cited peer-reviewed studies to show that gay marriage hurt children.
In the debate over gay marriage, states (and religious bodies) that refused to recognize same-sex marriage were said to inflict a “dignitary harm.” Religious freedom advocacy groups such as the Becket Fund warned that recognizing same-sex marriage would harm religious freedom. In United States v. Windsor, Justice Kennedy took the former claim more seriously, declaring that DOMA reflected a “bare congressional desire to harm a politically unpopular group.”
In itself, the harm principle offers no guidance as to which of two conflicting harm claims is the more “substantial and tangible.” In such a situation, described by Bernard Harcourt as “harm decisionism,” invocations of the harm principle may simply obscure the actual principles and interests by which public disputes are decided. Confronted by irreconcilable harm claims, judges must appeal to other criteria. To determine which harm is worse, they must draw on some idea of the good. To determine which laws are rational, they must refer to some idea of the true. Which harms really matter depends on what one thinks about human flourishing.
Mill himself used the seemingly libertarian harm principle to justify restrictions on things that harmed human flourishing as he understood it. He endorsed financial qualifications for marriage, fines for illiteracy, laws against idleness, restrictions on alcohol sales, and laws against public acts in “violation of good manners.” As Harcourt has observed, Mill’s “notions of protected interests and legal rights were inextricably linked to the virtues of individualism and individual growth.” From the beginning, then, the harm principle has been no guarantee of metaphysical neutrality. To this day, it is used to promote a certain idea of individuality that has come down from J. S. Mill to Anthony Kennedy.
Laycock wishes to say that religious freedom need not be tied to any idea of the good, yet his theory requires just that. It succeeds in making deliberations about the good and the true less transparent, while precluding the state’s recognition of an explicitly religious understanding of the good and the true. This is not a brief against government interference in religious matters, but a recipe for the government’s interfering in religious matters covertly on behalf of one side.
Laycock asserts that government has no competence in religious matters. This is a venerable opinion, rooted in James Madison’s Memorial and Remonstrance. John Courtney Murray advocated for it at the Second Vatican Council, arguing that “moral or theological judgments” on the value of religion “exceed the competence of the forces of juridical order.”
But as David Schindler and Nicholas Healy have shown in their important book, Murray’s view was not adopted in Dignitatis Humanae, the conciliar declaration on religious freedom. Early drafts of the document maintained that the state lacked “competence” in matters of religion, and that the “public power completely exceeds its limits if it involves itself in any way in the governing of minds or the care of souls.” Due to objections from the Council fathers, that language was dropped. An early version of one crucial passage read as follows:
Religious acts . . . transcend the temporal and earthly order of things. In performing these acts, therefore, man is not subject to the civil power, whose competence, on account of its end, is restricted to the earthly and temporal order.
After several revisions, the Council fathers approved a rather different formulation:
Religious acts . . . transcend the earthly and temporal order of things. The civil power, therefore, whose proper end is the care of the temporal common good, should in fact acknowledge (agnoscere) and show favor to the religious life of its citizens; but this power must be said to exceed its limits if it presumes either to direct or to impede religious acts.
Instead of declaring the state incompetent in religious matters, the Council fathers concluded that it should “acknowledge and show favor to the religious life of its citizens.” They believed it ought to “provide favorable conditions for fostering religious life.” They approved under certain conditions religious establishments in which “special civil recognition is granted to one religious community in the juridical order of the state.”
Despite the language of the First Amendment, the United States long had a religious establishment, albeit an informal and non-sectarian one. It was supported by school prayer and classroom Bible-reading. It can be seen today in the Pledge of Allegiance and the presidential refrain “God bless America.” Laycock has fought against what remains of these practices. In Town of Greece v. Galloway, he argued before the Supreme Court against opening public meetings with prayer.
Now, I am no great fan of public prayer as it has been practiced in the United States. In my view, it could do with more Latin and litanies. Yet despite the fact that America’s religious establishment has (often deliberately) excluded Catholics, I would prefer a revival of it to a naked public square. Here, I follow John Henry Newman, who after his conversion to Catholicism discouraged frontal attacks on the Anglican establishment. Though he would have preferred to live in a Catholic England, he understood that Catholics were in no position to direct the nation’s life—and that some creed, formally or informally, must do so. “I wish to suffer the Church of England,” he wrote. “The Establishment has ever been a breakwater against Unitarianism, fanaticism, and infidelity.” Like Newman, I would prefer an imperfect religious establishment to the likely alternative, even as I hope that the Catholic faith will one day be shared by all my countrymen.
Here, I think, lies the real difference between Laycock and me. He prefers a system in which a purportedly neutral state adjudicates among conflicting rights in a process that requires further denuding the public square. I prefer a revival of America’s informal religious establishment, which started out solidly Protestant and later became Judeo-Christian, all the while enjoying various types of state support. Such an establishment would be open to criticism on countless grounds. It would fall far short of the Catholic ideal. But it would be friendlier to religious believers of all stripes than is the progressive ascendancy.
Matthew Schmitz is senior editor of First Things.
An earlier version of this article incorrectly stated that the Becket Fund had warned against restricting (rather than recognizing) same-sex marriage. The author regrets the error.