Thomas Storck

Thomas Storck is a member of the editorial board at Ethika Politika, and writes regularly on the intersection of Catholic social teaching and contemporary culture.

The Revenge of Religious Liberty

By | May 8, 2013

Now that several states in the United States have declared that a man may legally marry another man and a woman another woman, anyone whose occupation is concerned in some way with weddings and who is in principle opposed to such unions has reason to fear.  As many know, already a florist in Washington State is in legal trouble for refusing to provide floral services to a same-sex ceremony, and florists, caterers, musicians and others—perhaps eventually even clergymen—have reason to fear the same eventuality, since the probability is that more and more jurisdictions will enact similar laws and become more and more intolerant in enforcing them.

Along the same lines of interference with freedom of conscience, not only institutions sponsored by the Church, but individual Catholic employers are facing the HHS mandate, regulations based on President Obama’s health care legislation which mandate insurance coverage for contraception.  And just since I began writing this article, in Columbus, Ohio, a Catholic high school, and possibly the Diocese of Columbus, is in legal trouble for firing a long-time physical education teacher whose status as a partnered lesbian recently came to light.

What is the Church, what are individual Catholics, to do in the face of all this?  The answer is obvious, or so it seems.  Simply protect our freedom of religion.  Enact at the federal level strong protections for freedom of conscience and then, even if we deplore the oxymoron of same-sex marriage or the use of contraceptives, at least Catholics and other objectors will not be required to cooperate with or facilitate such practices.

But, unfortunately, I fear that this is not the simple solution that many imagine.  In fact, it is really no solution at all, at least no long-term solution, although it might buy us a little time in the short run.  For every society has certain basic principles and rarely do societies grant sizable minorities the right to exempt themselves from obedience to these principles.  As long as American society was permeated by a vague Protestant ethos, Catholics did not understand very well the absolutist claims that a society based upon a Lockean understanding of religion made with regard to behavior, including behavior motivated by religious ideals.  But now that that Protestant ethos is fast waning, we are equally fast finding out the truth about our place in the American polity.

John Locke

What am I getting at by calling the United States a Lockean polity?  John Locke, in his (first) Letter Concerning Toleration of 1689, sets forth the position that governments exist “only for the procuring, preserving, and advancing…civil interests.”  And what are these civil interests?  “Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.”  The state’s duty, therefore, is “by the impartial execution of equal laws, to secure unto all the people…the just possession of these things belonging to this life” and “neither can nor ought in any manner to be extended to the salvation of souls….”

But is not this simply common sense, many Catholics will object.  Surely the salvation of souls is the business of the Church, not the state.  Directly, yes, of course.  But for millennia men believed that their uniting into earthly communities was for something better and nobler than “money, lands, houses, furniture, and the like,” and that therefore even civil governments could not avoid a concern with ultimate questions, even if such questions were the more direct business of the Church.  Thus in Catholic thought we have the tradition of the state’s duties toward God.  One could easily cite numerous passages from modern ecclesiastical documents to prove this point, but I will content myself with two.

Justice therefore forbids, and reason itself forbids, the State to be godless; or to adopt a line of action which would end in godlessness—namely, to treat the various religions (as they call them) alike, and to bestow upon them promiscuously equal rights and privileges.  Since, then, the profession of one religion is necessary in the State, that religion must be professed which alone is true…. (Leo XIII, Libertas Praestantissimum, no. 21)

The duty of offering God genuine worship concerns man both individually and socially.  This is “the traditional Catholic teaching on the moral duty of individuals and societies toward the true religion and the one Church of Christ.”  By constantly evangelizing men, the Church works toward enabling them “to infuse the Christian spirit into the mentality and mores, laws and structures of the communities in which [they] live.”  The social duty of Christians is to respect and awaken in each man the love of the true and the good.  It requires them to make known the worship of the one true religion which subsists in the Catholic and apostolic Church.  Christians are called to be the light of the world.  Thus, the Church shows forth the kingship of Christ over all creation and in particular over human societies. (Catechism of the Catholic Church, no. 2105.)

Of course this acknowledgment of the true religion on the part of the state presupposes a Catholic citizenry. But I am not suggesting a campaign for the immediate establishment of a Catholic political regime in the United States.  My point here is simply that there ought to be no unnatural separation between our conduct as individuals and our conduct as citizens or as government officials.  Questions of ultimate truth are as important for the body politic as they are for individual persons.

The doctrine of Locke which restricted the government’s sphere of concern to things purely of this world was adopted and continued in the American political and legal tradition.  Indeed, the First Amendment enshrined this view of religion as essentially a private matter.  What follows from this?  Since religious beliefs are now merely private opinions, from the state’s point of view they are important only as providing personal psychological solace or support for personal or social morality.  But their truth or falsity is no concern of society at large, society as organized into a political community.  Since someone’s religious opinions would seem to have nothing to do with how well he will obey the law, they are necessarily relegated to the purely private and are of no concern to his neighbor.  As Locke put it,

If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen.  The power of the magistrate and the estates of the people may be equally secure whether any man believe these things or no.

For “the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth and of every particular man’s goods and person.”  At the most, religious beliefs are valued for their effect on social stability and public morality, as in the famous passage from George Washington’s Farewell Address which argues that to preserve “political prosperity, religion and morality are indispensable supports [and that] reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.”  But there is no concern for religious truth here, only for using religion as a political prop.

If “the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth,” one might think that therefore freedom of religion would be amply respected in such a society.  But in fact, given the Lockean presuppositions, we arrive at a curious and perhaps unexpected result.  This is that when laws are made infringing upon the (now necessarily private) religious opinions of citizens, these opinions are considered as of little weight as compared with laws respecting persons and property.  Since religion is a purely private matter, and only this-worldly concerns are of importance for the state, then obviously religious principles are of no or little importance when weighed against such weighty matters as “money, lands, houses, furniture, and the like.”  And despite the First Amendment, this has been the stance in the United States from the beginning.  Justice Antonin Scalia summarized the tradition of constitutional jurisprudence in the 1990 case of Employment Division v. Smith:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.

* * *

“The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”

* * *

Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual’s religion was United States v. Lee….  There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited  participation in governmental support programs.  We rejected the claim that an exemption was constitutionally required.

In what seems to have been the first free exercise case, the 1878 case of Reynolds v. United States, which upheld the law criminalizing the Mormon practice of polygamy, the Supreme Court stated that there was no reason why government could not restrict religious conduct by general and neutral laws.  The Court in Reynolds said, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order,” and “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”

And to go back even further, the 1779 Virginia Statute for Religious Freedom, written by Thomas Jefferson, gave entire freedom only to what it called “religious opinion.”  It says nothing about religiously-motivated conduct, except to note that “when principles break out into overt acts against peace and good order” then the “civil government [and] its officers [may] interfere.”  It should be clear that the constitutional tradition of First Amendment freedom cannot be invoked in the sweeping manner which so many did prior to the November 2012 election, and that to do so is to mislead the mass of Catholic voters who have little knowledge of what exactly the Supreme Court has said or not said.  Note, moreover, the manner in which both the Reynolds Court and the Virginia legislature speak of “mere religious belief and opinions” or “religious opinion.”  Opinion, something that is simply a private belief, supported by whatever private reasons one finds persuasive, is hardly the way that a Catholic should regard the divine revelation which the Church safeguards as a treasure for all mankind.  Divine revelation is not a mere opinion nor is it something which is of no importance to the political community.

It is clear, then, that U.S. jurisprudence cares not a whit about the truth or falsity of any or all religions; it is concerned only with conduct, and it relegates religious truth to simply a private concern.  As a result of this, while the federal government has often sought to accommodate the religious beliefs of the citizenry, sometimes applying the rule that only a “compelling governmental interest” should be held to override religiously motivated conduct, this is done not because of a concern that the religiously motivated conduct might be based upon revealed truth, that its infringement might bring God’s disfavor upon the nation, but merely in a respectful acknowledgement of deeply held private beliefs, regardless of the religion in question.  This, however, is simply an application of the fundamental principle that the political community as such has no interest in whether any particular religion might be true or false.  But by basing our objections to the HHS mandate or to forced compliance with same-sex “marriage” ceremonies merely upon religious liberty we are unwittingly latching on to the principle that brought our difficulties upon us in the first place.

How so?  When society considers itself officially agnostic on religious questions, how is it to regulate itself?  Simply on the basis of its own reasonings about how best to obtain and protect “money, lands, houses, furniture, and the like.”  And nowadays, about how to obtain and protect other this-worldly goods, such as personal pleasure and self-fulfillment.  And naturally enough, such a society will make laws to attain these ends.  Every society necessarily has common norms, and in fact no society can do without them.  A society can tolerate dissent from those norms only when the particular norms in question are not important or when the dissenters are a small and insignificant group.  Thus, for example, U.S. society can tolerate the peculiarity of Jehovah’s Witness opposition to blood transfusions, or the Christian Scientist opposition to all medicine, or Quaker opposition to military service, only because these are small and unimportant groups.  But if there were numerous Christian Scientist employers who claimed that it violated their religious liberty to provide any health insurance to their employees, or if a large group such as Catholics claimed the right to be selective conscientious objectors in the case of unjust wars, then American society might not be so lenient.  In fact, the U.S. courts have always rejected claims by Catholics or others who invoke the principle that it is wrong to participate in an unjust war.  On the positive side, several decades ago the federal government prohibited private businesses from discriminating on the basis of race, so that, for example, it would presumably be illegal for a florist to refuse to provide flowers to a wedding between persons of European and African descent.

A society cannot exist without common norms and standards, and always enforces at least the more important of these, and to permit an endless series of exceptions is probably not workable.  In any case, no society is particularly interested in trying to see if it can successfully accommodate various sizable minorities of dissenters.  Current U.S. society has its own goals and naturally will seek to enact them into law.  So does that mean that I think Catholics and others should be forced to provide services for the pretended wedding of two men or two women?  Hardly.  What I mean is that by arguing, as we are doing most forcibly in the case of the HHS mandate and probably will begin to do in the case of same-sex “marriages,” arguing from simply a private individualist claim of exemption from society’s norms is not the correct way to proceed.  It is impossible to escape from the reality of social norms, and from social norms that are enforced, at least on occasion, by law.  What we should desire are social norms which rest upon truth, which respect human nature, which are not an offense to God.  That is the way out of the situation which our unthinking acceptance of the idea that religion is merely a private affair has got us into.  For the most part Catholics in the U.S. were content to allow our polity to base itself on the principles of liberalism under which ultimate truths about man were rendered into merely private opinions.  The vague Protestant character of our social norms prevented them from being too much of a threat to us, or at least we thought.  So long as our private opinions did not seem to differ too much from those of the majority society, or as long as we were willing not to protest too much—such as during Prohibition when the government prohibited one of mankind’s most natural and ancient of activities—we could get along well enough with American society.  But now that American society no longer is informed by a vague Protestant morality, we suddenly find that we are not comfortable here anymore.  All I can say to that is, it’s about time we learned the truth.  Catholics were never at home in a society that at its essence stands for the things that Catholic social philosophy condemns.  We cannot in the long run be at ease in a culture that privatizes religion, for the Church cannot be reduced to simply another pressure group, another private organization that exists under the benign smile of the regime, which is happy to tolerate us as long as we do not challenge its foundations.

What then is to be done?  Should we preach loudly and clearly the undoubted truth that “the profession of one religion is necessary in the State [and] that religion must be professed which alone is true,” and that therefore the Catholic faith must be publicly professed by the state?  Obviously this would be an absurd method to employ at present, though on the other hand we must not hide this truth or pretend that it does not exist.  No, we must simply say that same-sex unions are wrong, that contraception is wrong, that we refuse to participate in such actions because “We must obey God rather than men” (Acts 5:29).  That was the commandment that the Apostles relied upon, not an appeal to the principle of religious liberty.

The apparent harmony between the goals and practices of American culture and those of a Catholic culture was merely a surface harmony.  From the beginning the secular principles upon which the country was founded and run were threats to the Church, and all along her freedom was restricted, but in ways that were considered so minor as to call forth little notice or concern.  But now the differences between the two ideals of life are obvious.  It will no doubt be exceedingly difficult to pursue the path I recommend here, and much easier to base ourselves upon the familiar catchwords of religious freedom and the Constitution.  But there is no better time to make a real stand than now.  It will not get any easier.  Should we manage to obtain religious exemptions from the current abominations that threaten us, eventually another one will arise, and then another one and another one.  At some point society will say No to us and all our pleas for First Amendment rights will be in vain.  It is better now to preach the Faith in its fullness then to hide behind an implicit acceptance of the idea that religion is a merely private affair.  No doubt, as I already said, it is proper to seek refuge for the time being in whatever protections the First Amendment may offer.  But it is not right to maintain that that is all we seek, that religious liberty is our highest goal and neglect to declare to our fellow citizens the “whole counsel of God” (Acts 20:27).

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  • Gian

    I fully agree with you. Either the State would be informed by the Church or it would be informed by Satan.

    This view recalls the debate presented in the begining of Karamazov Brothers, in which Ivan Karamazov argued for the concept of a State whose soul is formed by the Church.
    But certainly, this view of the inadequacy of 1st Amendment is particularly unpalatable to the religious conservatives.

  • Thaddeus Kozinski

    Superb article. Tom has been saying this for years, but perhaps now, as the SHTF, as it were, people will begin to listen.

  • Anthony Klosterman

    Thank you for this article. The Protestant (usually more tolerable) method of ordering society has been replaced by something else entirely, something claiming to be relativist but with materialism at its core.

    What needs consideration is the basic American debate over federalism. Could the Catholic expression find fullness within American states free from strict federal control? It’s hard to say if this would provide an enduring solution or merely another Augsburg compromise. At any rate freedom from nationwide or even global pressure will not be easy to attain. The process must go up hill wherever one turns.

  • http://www.thomasstorck.org Thomas Storck

    Mr. Kosterman wrote, “The Protestant (usually more tolerable) method of ordering society has been replaced by something else entirely, something claiming to be relativist but with materialism at its core.”

    The point I was trying to convey is that the political and legal structures of the Lockean state were always inimical to Catholic faith and practice. It’s true that at one time they were informed by a vaguely Protestant religious ethos, but the juridical structures have not changed, it’s only that now the ethos informing them has changed. The hostility was always implicit, but now it has become much more clear and explicitly so.

  • http://www.thomasstorck.org Thomas Storck

    On Facebook someone has made the criticisms below of this article, and since I am not on Facebook I’ll reply here instead.

    First he wrote, “It’s based on a narrow reading of Locke. Locke does indeed state that the civil government is concerned solely with the affairs of this life, but he nowhere implies (and indeed many of his arguments elsewhere seem to contradict) that the state’s laws are created in a moral vacuum or should restrict themselves to legislative limits like those John Stuart Mills recommended. A Lockean commonwealth could legislate on, for instance, something as “harmless” and “personal” as homosexuality because of arguments about natural law and the common good.”

    No doubt Locke would have agreed that the state could “legislate on…homosexuality” – in view of the inherited Christian morality of the time this would be expected. Just as I’m sure Jefferson and the other Founders would have seen nothing wrong with such legislative action. But once the inherited Protestant culture began to wither away, there was nothing to stand in the way of complete acceptance of homosexuality as simply an alternative and natural way of life. It’s precisely part of my point that laws are not enacted “in a moral vacuum,” and I said explicitly that so long as Protestantism held sway in our culture, certain things would continue to be prohibited. But what a weak and uncertain (not to say false) prop for a good society that was and is!

    Secondly, “There’s a very strong Catholic and classical tradition that has pointed out the limits of Locke’s influences on the Founding of the Republic. I’m thinking of the work of Kendall, Carey, Strauss, Wills, etc. This article vastly oversimplifies the connection between Locke and America and takes them to be virtually synonymous.”

    It’s hard to respond to a vague reference to
    “Kendall, Carey, Strauss, Wills,” but I’d simply point out that the language of U.S. Supreme Court decisions apes Locke’s language quite astonishingly. This is especially apparent in Reynolds v. U.S.

    Lastly he wrote, “The author seems to concede the point that from 1787 on there was an understanding that American civil government would concern itself with areligious matters. Anyone who has read early commentaries on the Constitution (Tucker, Story, etc.), the ratification debates, Tocqueville, will come away with a quite different story. Moreover, the states were explicitly allowed to have established religions. It was the Federal government, for jurisdictional reasons, that was forbidden from establishing religion – and even here, presidents continued to issue non-sectarian calls to public prayer and fasting.”

    This is unclear to me. I think he meant to include a “not” in his first sentence. In any case, he again makes a point I not only conceded, but asserted, namely that the Protestant culture of the U.S. did inform legislative and judicial activity for a long time, but still, the Supreme Court always refused to deal with religious beliefs as matters that might be true or false. Locke’s notion of the supremacy of merely civil interests always won out. The fact that the Court stated this most clearly back in 1878 makes my point even stronger. This was not some recent trend, something done under the influence of 20th century secularism.

    With regard to the state establishments of religion, these were fast dying away, and more importantly, if the people of that era, the early 1800s, understood the United States to be one country, then it was illogical that in one state God would be held up as the ruler of human affairs while other states would be officially agnostic on that point. I deal with that more fully in an article, “Government, Society and the Human Good” at anamnesisjournal.com.

  • Christopher Lanciotti

    I find these reflections profoundly illuminating and an accurate depiction of the dangers of the current political-cultural situation that we as American Catholics find ourselves in. They also seem to resonate in a very powerful way Cardinal James Francis Stafford´s words in his speech to Catholic University in November 2008, where similarly reflects on the relationship between Church and State. Overall, I am completely in agreement with your claim but somehow a bit confused as to how we proceed in this fight. I too am tired of the whole “religious liberty” battle and feel as if it only feeds antagonism and not real dialogue. With so much inherent antagonism in the bi-partisan political scheme, how do you see the reality of the Truth and politics reconciling themselves? In my opinion, many Catholics tend to either “politicize” their Catholicism and fight for religious freedoms on political grounds, or “avoid” politics altogether and kind of set up “Catholic ghettos” that seek to protect their communities from unnecessary involvement in American socio-political life (or a mix of these two extremes). I guess my question is, how do you see the evangelization of culture unfolding itself in the United States? Is it possible to preserve First Amendment values or does there need to be a complete renovation of Constitutional ideals? What can be rescued? I hope that is not too much, probably could write a book on that, but maybe you can give me a push in the right direction.

  • alaanile

    Now that several states in the United States have declared that a man may legally marry another man and a woman another woman, anyone whose occupation is concerned in some way with weddings and who is in principle opposed to such unions has reason to fear. As many know, already a florist in Washington State is in legal trouble for refusing to provide floral services to a same-sex ceremony, and florists, caterers, musicians and others—perhaps eventually even clergymen—have reason to fear the same eventuality, since the probability is that more and more jurisdictions will enact similar laws and become more and more intolerant in enforcing them.
    here

    here

  • alaanile

    Now that several states in the United States have declared that a man may legally marry another man and a woman another woman, anyone whose occupation is concerned in some way with weddings and who is in principle opposed to such unions has reason to fear. As many know, already a florist in Washington State is in legal trouble for refusing to provide floral services to a same-sex ceremony, and florists, caterers, musicians and others—perhaps eventually even clergymen—have reason to fear the same eventuality, since the probability is that more and more jurisdictions will enact similar laws and become more and more intolerant in enforcing them.

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