As the loud opposition to Indiana’s religious freedom law subsides, plenty of confusion needs to be cleared up. We need to explain to our friends what religious liberty is, why it matters, and what the consequences are of undermining it or, as is the case with the “fix” enacted in Indiana, restricting its protections.
Now is a good time to take a step back. As Americans approach Passover and Easter, it’s worth remembering why religious liberty matters in the first place. For that, we can turn to our Founding Fathers. After all, they were the ones who established a political society unlike any other in all of human history—meant to not merely “tolerate” the religious practice of minorities, but to protect the natural right of all Americans to liberty of conscience and the free exercise of religion.
George Washington, in his Letter to the Hebrew Congregation of Newport, R.I., perhaps said it best:
The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy—a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
One of the hallmarks of conscience and religious liberty protections is that they protect people of all faiths, even if their beliefs seem unfounded, flawed, implausible or downright silly.
Recognition of a right to religious freedom does not, however, depend on religious skepticism or relativism. Rather, it rests on the intelligible value of the religious quest—the activities of seeking to understand the truth about ultimate questions and then conforming one’s life accordingly, with authenticity and integrity.
People have rights—including the right to pursue religious truth and, within the limits of justice and the common good, to act on their judgments of what truth demands. That’s what Religious Freedom Restoration Acts do. They prohibit the government from placing substantial burdens on religious exercise unless the government can show a compelling interest in burdening religious liberty and do so through the least restrictive means.
All people possess these fundamental rights, even when they are, in some respects, in error. Kevin Seamus Hasson, the founder of the Becket Fund, captured this in the title of his book “The Right to Be Wrong.” Hasson rightly argues that religious liberty is for A to Z, Anglicans to Zoroastrians.
This basic view of religious liberty has found a place in our civil law. James Madison’s “Memorial and Remonstrance” puts the point well: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” Madison argued that it is an “arrogant pretension” to believe that “the Civil Magistrate is a competent Judge of Religious Truth.”
The right to religious liberty has its primary force precisely because of a prior duty to pursue the good of religion by seeking out the truth about God and the cosmos. As Madison explained:
What is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.
The government protects the space for citizens to fulfill this duty according to their own best judgments. Stanford law professor Michael McConnell makes just this point in an essay for the Yale Law Journal:
In the liberal tradition, the government’s role is not to make theological judgments but to protect the right of the people to pursue their own understanding of the truth, within the limits of the common good. That is the difference between “the full and free exercise of religion” (Madison’s formulation) and mere “toleration.” Toleration presupposes a “dominant group” with a particular opinion about religion (that it is “false,” or at least “unwarranted”), who decide not to “eradicate” beliefs they regard as “wrong, mistaken, or undesirable.”
The Founders got it right. Religious liberty isn’t about mere “toleration” from a dominant group that graciously opts not to coerce others. No, it’s a natural right, which all must respect within the context of justice and the common good—compelling state interests pursued in least restrictive ways. Indiana’s Religious Freedom Restoration Act would protect just that.
