by R.R. Reno
A recent book by University of Chicago professor of philosophy and law Brian Leiter outlines what I believe will become the theoretical consensus that does away with religious liberty in spirit if not in letter. “There is no principled reason,” he writes, “for legal or constitutional regimes to single out religion for protection.” Leiter describes religious belief as a uniquely bad combination of moral fervor and mental blindness, serving no public good that justifies special protection. More significantly—and this is Leiter’s main thesis—it is patently unfair to afford religion such protection. Why should a Catholic or a Baptist have a special right while Peter Singer, a com- mitted utilitarian, does not? Evoking the principle of fairness, Leiter argues that everybody’s conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary “liberty of conscience.”
Leiter’s argument is libertarian. He wants to get the government out of the business of deciding whose conscience is worth protecting. This mentality seems to expand freedom, but that’s an illusion. In practice it will lead to diminished freedom, as is always the case with any thoroughgoing libertarianism.
Let me give an example. The urban high school my son attended strictly prohibits hats and headgear. It does so in order to keep gang-related symbols and regalia out of the school. However, the school recognizes a special right of religious freedom, and my son, whose mother is Jewish and who was raised as a Jew, was permitted to wear a yarmulke. Leiter’s argument prohibits this special right, but his alternative is unworkable. The gang members could claim that their deep commitments of loyalty to each other create a conscientious duty to wear gang regalia. If everybody’s conscience must be respected, then nobody’s will be, for order and safety must be preserved.
The Arabic word dhimmi means non-Muslim. Under Muslim rule, non-Muslims were allowed to survive only insofar as they accepted Muslim dominance. Our times are not those times, and the secularism of the Nones is not Islam. Nevertheless, I think many powerful forces in America would like to impose a soft but real dhimmitude. The liberal and libertarian Nones will quarrel, as do the Shi’a and Sunni, but they will, I think, largely unify against the public influence of religion.
What can be done to prevent them from succeeding? First and most obvious—defend religious liberty in the courts. Although I have depicted deep cultural pressures that work against religious liberty, we live in a society governed by the rule of law. Precedent matters and good lawyering can make a substantive difference.
Second—fight against the emerging legal theories that threaten to under- mine religious liberty. This is a battle to be carried out in the law schools and among political theorists. For decades, legal activists on the Left have been subsidized by legal clinics and special programs run in law schools. Defenders of religious liberty need to push back.
Third—fight the cultural battle. Legal theory flexes and bends in accord with the dominant consensus. This Brian Leiter knows, which is why he does not much worry about the current state of constitutional law. He goes directly to the underlying issues, which concern the role of religion in public life.
We must meet the challenge by showing that religion is indeed special. Religious people are the most likely Americans to be involved in civic life, and the most generous in their charitable contributions. This needs to be highlighted again and again. Moreover, we need to draw a contrast with the Nones, who tend to outsource their civic responsibilities and charitable obligations to government in the form of expanded government programs and higher taxes.
There is another, deeper argument that must be made in defense of religion: It is the most secure guarantee of freedom. America’s Founders, some of them Christian and others not, agreed as a matter of principle that the law of God trumps the law of men. This has obvious political implications: The Declaration of continued on back page continued from previous page Independence appeals to the unalienable rights given by our Creator that cannot be overridden or taken away. In this sense, religion is especially beneficial. As Popes John Paul II and Benedict XVI both emphasized, it gives transcendent substance to the rights of man that limit government. Put some- what differently, religion gives us a place to stand outside politics, and without it we’re vulnerable to a system in which the state defines everything, which is the essence of tyranny. This is why gay marriage, which is sold as an expansion of freedom, is in fact a profound threat to liberty.
Finally, we must not accept a mentality of dhimmitude. The church, synagogue, and mosque have a tremendous solidity born of a communion of wills fused together in obedience to God. This gives people of faith the ability to fight with white fury for what they perceive to be a divine cause, which is of course a great force for righteousness—but also a dangerous threat to social peace, as early modern Europe knew only too well.
In conclusion, I want to focus not on fury but on the remarkable capacity for com- munities of faith to endure. My wife’s ancestors lived for generations in the contested borderlands of Poland and Russia. As Jews they were tremendously vulnerable, and yet through their children and their children’s children they endured in spite of discrimination, violence, and attempted genocide.
Where now, I ask, are the Russian and Polish aristocrats who dominated them for centuries? Where now is the Thousand Year Reich? Where now is the Soviet worker’s paradise? They have gone to dust. The Torah is still read in the synagogue. The same holds for Christianity. The Church did not need constitutional protections in order to take root in a hostile pagan culture two thousand years ago.
Right now the Nones seem to have the upper hand in America. But what seems powerful is not always so. If I had to bet on Harvard or the Catholic Church, Yale or the Mennonites in Goshen, Indiana, the New York Times or yeshivas in Brooklyn, I wouldn’t hesitate. Over the long haul, religious faith has proven itself the most powerful and enduring force in human history.
R. Reno is the editor of First Things, a journal of religion in public life. He received his B.A. from Haverford College and his Ph.D. in religious studies from Yale University, and taught theology and ethics at Creighton University in Omaha, Nebraska, for 20 years. He is the author of Fighting the Noonday Devil, Sanctified Vision, and a commentary on the Book of Genesis, as well as a number of other books and essays.
‘Reprinted by Permission from Imprimis, a publications of Hillsdale College’