Bradford Littlejohn

Against “Religious Liberty”

Conservative Christians, however, got it in their heads for decades that politics was about property rights and school vouchers; and now that we have wholly lost the public sphere, we frantically hide behind the protective sheet of “religious liberty,” now reconceived as a sphere of private self-expression, not realizing that this protective sheet turns out to be a white flag.

When I told people that I was preparing for this debate on religious liberty, the most common response was, “Wait, which of you is arguing against religious liberty?” In modern America, saying you’re against religious liberty is a bit like saying you’re against kittens.
Now, I love kittens in fact, but just because I’m in favor of kittens doesn’t mean that I don’t think there’s something amiss in a culture where people refer to their cats as their “children.” And just because I am unabashedly pro-kitten, that does not mean I cannot support reasonable restrictions on kitten rights for the sake of the common good. I am glad to see, for instance, that none of you have brought kittens to this debate. If you had, we might have had to ask you to leave them outside. Finally, I refuse to hold my ancestors in contempt just because they did not value kittens as highly as we do.
At this point I will leave the kitten metaphor behind, lest it should become strained to the breaking point. But, tongue-in-cheek though it is, it does gesture in the direction of three main points I want to make tonight. I have three main concerns about religious liberty discourse:

In contemporary usage, it has left the door wide open to relativism and anarchy. The more we invest in it without interrogating it, the more we will undermine our own cause as Christians committed to the conservation of our society and human nature.
A one-sided emphasis on religious liberty—at least as currently conceived—blinds us to the inescapably moral and religious character of government, and the proper God-given task of the government to promote right religion.
By valorizing expansive religious liberty rights as self-evident universal human rights, we encourage the very chronological snobbery that is destroying the foundations of the church and our civilization. We will not be able to resist thinking of our ancestors as benighted bigots who persecuted people for kicks. The myth of American exceptionalism plays in here, as we have often told ourselves the tale that our forefathers came to this country fleeing religious persecution in Europe and set up a new nation dedicated to liberty for the first time in history. The truth, of course, is much more complicated, and although I cannot elaborate on this history here, the mere fact that it is more complicated suffices to rebuke our casual haughtiness towards past ages.

In what follows I will focus on elaborating the first two points and then offer a brief positive exposition of the historic magisterial Protestant view of the relation between politics and religion.
Avoiding the Relativism of Religious Liberty Run Amok
My first main point then is that unless properly defined, “religious liberty” opens the door to relativism and anarchy. Consider the case of Guy Fawkes, whom our British cousins commemorate every fifth of November with a bonfire and fireworks, celebrating his failure to carry out his deeply-held religious conviction: a determination to blow up Parliament, the King, and all the lords and notables of England in one fell swoop. Such religious terrorism, of course, is hardly out-of-date; the 9/11 bombers were similarly motivated by deep religious commitment. Why should they not have liberty to follow through on it?
People will quickly object, “Well sure, but there’s never a religious right to harm others.” Oh sure, that’ll solve the problem. What about spanking then? Should Christian believers who consider corporal punishment to be part of God’s prescription for parenting be permitted to spank? Or should they be restrained on grounds that they are harming their children? What about “conversion therapy” for gays and lesbians? In some countries, this has already been banned on grounds of harm. What about simply preaching the Bible’s unpopular truths about homosexuality? Won’t this inflict incalculable psychological harms, and maybe lead to suicide? Countries like Canada and Australia have already begun to infringe such baseline religious liberty on the grounds—to them eminently plausible—that it inflicts harm on others.
Ultimately, at stake in such debates are disagreements about what is actually harmful in the final analysis. There is no religiously neutral ground for making these determinations.
On the other end of the spectrum, consider the case, discussed by John Perry in his excellent 2007 study of religious liberty, Pretenses of Loyalty, of the man who appeared in court in a chicken suit, and insisted to the judge that he did so out of religious conviction. People will quickly object, “Yeah, but he just made that up.” So? Says who? How do you know what is and isn’t a sincere religious conviction? Does a religious conviction have to be widely held to be considered genuine?
In any case, even if it is genuinely held, can it be automatically accommodated? In between these extremes of the terrifying and the ridiculous lie all kinds of concrete religious liberty issues that have troubled judges over the centuries. John Locke was well aware of this problem, warning of the danger that citizens would evade legitimate civil obligations out of “pretenses of loyalty” to divine authority (thus the title of Perry’s book). In his own time, Quakers were a prominent example, refusing to take oaths that were prerequisites to serving on juries or to holding civil office, and refusing to serve in the military. The question of military service has been a particular sticking point for religious liberty objections over the past few centuries, since it does indeed represent a deeply-held conviction for some, but it is also easily abused—if we allowed everyone claiming to be a pacifist to evade the draft, wouldn’t every draft-dodger claim such protections? Then there are those willing to serve in the military whose religious convictions conflict with various standard obligations, such as Sikhs’ insistence on wearing beards or those requesting exemptions from certain vaccination requirements.
Do we accommodate such requests? Maybe, maybe not. Our jurisprudence has evolved a number of rules to try and answer these questions, based on some of the criteria noted above: how great a harm might be inflicted? How widely held or historically attested is this conscience demand? etc. But the point is that it is a matter of prudence. Claims of religious liberty are not automatic trump cards or blank checks; they may or may not be accommodated, but it will take some hard work and hard decisions about what the common good demands. Living in society simply means accepting constraints on the ability to live out our religious convictions—at least, unless we are fortunate enough to be the majority religious group in a society. If you are a worshiper of Ishtar and think that she should be honored with temple prostitution, you can be free to believe that, but sorry, you can’t practice that.
This becomes more urgent to the extent that we blur the lines between “religion” and “conscience,” as we increasingly have in the modern West.
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Honoring God as a Nation?

There are many “mild and suitable means” to privilege right worship without coercing it, and to discourage false worship without trying to do away with all difference. The early statesmen of America, informed by guides such as Vattel, sought to pursue just such a prudent and Protestant middle way. Although changed circumstances may require different methods today, the same principles—and the same commitment to the ideal of national faithfulness—should continue to guide us.

Public Religion and Freedom of Conscience
“If all men are bound to honor God,” mused one of the greatest of Protestant political theorists, “the entire nation, in her national capacity, is doubtless obliged to serve and honour him.”
Thus expressed, the sentiment appears almost incontestable; and until a couple of centuries ago, it was. Today, it is liable to seem laughable. In its place another principle has taken pride of place: “liberty of conscience is a natural and inviolable right.” Both quotations, however, come from the same source: Emer de Vattel and his magisterial The Law of Nations (1757). By meditating on this paradox, with Vattel as our guide, perhaps we can recover anew a synthesis that used to be central to Protestant political thought: the shared commitment to public religion and private conscience.
Although little known today, Vattel was a giant of eighteenth-century thought. Often classed among Enlightenment thinkers, Vattel was in fact still deeply embedded in the long tradition of magisterial Protestantism, indulging in a delightful screed against papal supremacy in the midst of his great treatise. Born in Neuchatel, Switzerland, a stone’s throw from Geneva, Vattel was nurtured in the Swiss Reformed faith before training in law and working as a scholar and a diplomat on behalf of the elector of Saxony and the King of Prussia (technically the sovereign of Neuchatel). The Law of Nations would exert a remarkable influence on the thought-world of western Europe and the Atlantic world over the next few decades. George Washington studied it closely, and one of the greatest early debates of early American foreign policy—between Jefferson and Hamilton, of course—was waged by way of rival quotations from Vattel’s masterpiece.
Emer de Vattel’s Defense of Public Religion
The basic thesis of his book was straightforward. The natural law, of which classical and Christian thinkers had written for two millenia, applied in its moral demands not merely to individuals, but to nations as corporate entities. Each nation, like each individual, must chart its course in relation to three overarching sets of duties: duties to self, duties to God, and duties to others. Indeed, God had so arranged the moral universe that a nation, like an individual, flourished best (and thus fulfilled its duties to self) when it honored God and honored its obligations to others. Unlike an individual, however, a nation had no higher authority on earth to tell it how to balance its various obligations; it must in the final analysis make its own decisions and bear the consequences before God.
Within this framework, Vattel constructed his argument for public religion on firm and ancient foundations. The first was the Aristotelian idea that the telos or goal for all human beings is happiness, conceived in the fullest and richest possible terms; everything we do strives toward this end. The second was the idea that humans live in and through communities or collectives larger than themselves—above all, to Vattel’s mind, the nation. Therefore, it followed that the task of the good ruler was to promote national happiness. And just as individual happiness depended upon the cultivation of virtue, so national happiness depended upon national virtue: “in order to conduct it [the nation] to happiness, it is still more necessary to inspire the people with the love of virtue, and the abhorrence of vice” (§115). Finally, since “Nothing is so proper as piety to strengthen virtue, and give it its due extent,” it followed that to be happy, “a nation ought then to be pious” (§125).
Thus far, the argument seems impeccable. And yet it has reached an impasse: what are we to do about freedom of conscience?
As a Protestant, Vattel can hardly be oblivious to this concern. If true piety depends on faith, and faith is an act of understanding and will, you cannot simply compel people into piety; that would defeat the very purpose. And yet is not compulsion central to the practice of politics and the exercise of sovereignty?
At the same time, the ruler must worry not merely about the demands of public piety and private conscience, but also, above all, about civil peace. “To live well, it is necessary first to live,” Richard Hooker remarks in this context, so any public policy regarding religion has to consider the chances of provoking violence and disorder—whether from legislating too little or too much.
Vattel, equally attentive to all three concerns, seeks to balance them delicately over the course of his lengthy chapter “Of Piety and Religion.” A close look at this remarkable text affords us a window into the forgotten world of Protestant political prudence.
Distinguishing Internal and External Religion
Vattel begins by making a fundamental distinction, one which goes all the way back to Martin Luther and his “two kingdoms.” Religion has both an internal and an external dimension. “So far as it is seated in the heart, it is an affair of conscience, in which every one ought to be directed by his own understanding: but so far as it is external, and publicly established, it is an affair of state” (§127). We might balk at the last phrase, but if the nation has duties toward God—and if religion can generate conflict—how can religion not be an affair of state?
Internally, the conscience is free for two reasons: first as a simple matter of fact (no one can compel me to believe something, however much they try), and second because the honor God desires is that which proceeds from true love and conviction. And since the conscience feels bound to honor God through worship, “there can then be no worship proper for any man, which he does not believe suitable to that end” (§128). If you force me to sacrifice animals to honor God, and I am convinced he desires no such thing, you are compelling me to sin against my conscience.
But worship is an external action, and hasn’t Vattel just said that external religion is an affair of state? Ah, yes, but another distinction is in order. Vattel notes that there is a great difference between being forced to do something and being forcibly prevented from doing something: “In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases, without regard to the consequences it may produce on society” (§129).
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