Two aspects of liberty.

• Author: Garvey, John H.
• Position: Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

Isaiah Berlin was a wonderful writer about political theory, the author of a number of essays we still read. Upon assuming the Chichele Chair at All Souls College in 1958, he gave a lecture entitled Two Concepts of Liberty.

Berlin described the two concepts as "negative" and "positive." The negative concept of liberty (he sometimes called it "freedom from") is a classical liberal ideal, one we associate with Locke and Mill, Constant and Tocqueville. It is simply the "absence of interference." (1) People who are free from all constraints can do as they like--an idea that appealed to Berlin, a great believer in value pluralism. (2)

Berlin's positive concept of liberty (or "freedom to") "derives from the wish on the part of the individual to be his own master." (3) Any number of things might frustrate that desire: an economic system that reduces me to servitude; the waywardness of my own passions; or a dominant social institution (a church, an aristocracy) that propagates false consciousness. Berlin associated this concept of freedom with Rousseau, Hegel, and Marx. Its proponents maintain that a law does not restrict my freedom if I impose it on myself or accept it freely. The important thing is that I should be able to act in accordance with the wishes of my true self.

I'm a big fan of Berlin as an essayist and a writer of intellectual history, but I think his analysis of liberty is muddled. "Freedom from" and "freedom to" are not two different concepts of liberty. They are different parts of the same idea. We can't talk sensibly about liberty without invoking both of them.

Liberty in the constitutional sense is always a right against state interference (a "freedom from"). (4) The First Amendment begins by saying that "Congress shall make no law"; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. (5) Liberty is also, always, a right to do something (a "freedom to"); to speak, to assemble, to practice religion, to get married, etc. So "freedom from" and "freedom to" are always parts of the same idea, just as "flying from" and "flying to" are aspects of the same airplane trip. Freedom is always the right to do some particular act without government restraint.

I mention Berlin's confusion because I think that a focus on these two aspects of liberty (freedom from state interference and freedom to practice religion) can help us understand the battles we are currently having about religious liberty. There have been two phases in this modern fight. In the first phase, opponents of religious freedom have focused on the freedom from state interference. They have argued that although religion is an important social (and theological!) good which deserves our utmost respect, nevertheless in this or that particular case the state should prevail because its concerns are especially weighty--more weighty than the plaintiffs religious concerns.

In the second phase, people have argued that the religion that we should be free to practice is a more limited idea than we might suppose. In this phase, it is not a matter of weighing private concerns against public ones and finding the public ones more weighty. The private concerns simply don't count as religious, so we don't get to the point of balancing them against concerns of state.

1. "FREEDOM FROM"

   Let me begin with the first phase. I have said that freedom has two aspects. It is always a right to act in some way (the "freedom to") and a "freedom from" state interference. But saying that I have a right to freedom is just the beginning, not the end, of a legal argument. Because it is a right to act, people can invoke it in an infinite variety of cases. Someone might falsely shout "fire" in a crowded theater and cause a panic, then defend his behavior as an exercise of free speech. Someone else might argue that freedom of religion excuses him from paying taxes. For this reason, freedom is a defeasible right, as the philosophers say. (6) It is just the first step in a legal argument. It forces the government to justify its interference. But sometimes the government's reasons will be so compelling that the courts will allow it to interfere.

   In constitutional law, we describe this process of making judgments about defeasible rights as one of balancing private rights against public concerns. Of course, the government balances private and public interests whenever it makes a law. But when the private actor has a right, the government must offer an especially good reason for interfering. The right protects us from state interference, at least sometimes. We might describe this handicap as the weight or value of the right. (7)

   For a long time, the custom was to assign a great weight or value to claims of religious freedom, and to rule in favor of the state only if it could show a compelling reason for the prohibition or restriction it wished to impose. Consider the approach the Court took in United States v. Lee. (8) The respondent, a member of the Old Order Amish, refused on religious grounds to withhold and pay social security taxes for his employees. He thought that doing so would violate the injunction in I Timothy 5:8: "But if any provide not ... for those of his own house, he hath denied the faith, and is worse than an infidel." (9) The government responded in two different ways. First, it argued that paying the tax wouldn't really burden Lee's beliefs. To this line of argument the Court gave the standard answer: whether Lee had a religious problem was for him to say. (10) The government (the IRS, the courts) was not in a position to judge about that. (11)

   Second, the government argued that there was a really important reason why Lee had to pay the tax. This proved to be the winning approach. As the Chief Justice put it, the government needed to demonstrate that compliance was "essential to accomplish an overriding governmental interest." (12) As it turned out, it was. If the Court excused Lee from having to pay his taxes, a lot of other people might follow his example, and that would imperil the fiscal solvency of the social security system.

   In 1990, the Court limited considerably the protection it would offer in cases about religious liberty. Employment Division v. Smith (13) allowed a government agency to discharge two members of the Native American Church for ingesting peyote, a controlled substance under Oregon law. The Court was willing to assume that taking peyote was a religious act just like taking wine at a mass or a seder. (14) The Native American Church deserved as much protection as Catholics and Jews.

   But, the Court said, the First Amendment rule against laws "prohibiting the free exercise" of religion refers to laws that single out religion for special bad treatment. (15) Imagine a law saying that Catholics, but not Jehovah's Witnesses, could hold services in public parks. (16) It would take the most compelling reason to justify such a law. Laws that are neutral and generally applicable ("no one may ingest controlled substances") can also have indirect effects on religion. But these effects are unintended, and the state need not offer any special defense of them. We would be "courting anarchy" (17) with a demand like that. And the danger of anarchy "increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them." (18)

2. "FREEDOM TO"

   In the last few years we have entered a new phase in the attack on religious freedom. Our debates center on the very meaning of religion, rather than on state concerns that might outweigh it. Sometimes the focus is on who is a religious actor. The Obama Administration has asserted, for example, that for-profit corporations are not religious actors. (We hear similar arguments about the freedom of the press. Some say it covers only the institutional press; others say it extends to bloggers.) Sometimes the focus is on what activity is religious. Not every kind of action counts. (We hear similar arguments about the freedom of speech. Not every kind of communication is protected by the Free Speech Clause. Flag-waving is "speech." Obscenity is not.)

   1. Who Is Free to ...?

      Let me begin by looking at who is a religious actor. My own university, and yours, sued the Department of Health and Human Services in 2013 to challenge regulations under the Affordable Care Act. The regulations require certain group health plans to cover sterilization procedures and prescription contraceptives, including some that can induce abortions. We think this interferes with our religious freedom because it requires us to help provide services we view as sinful. (19)

      The regulations exempt "religious employers" from the requirement. These institutions don't have to provide coverage, and their employees don't get it. But "religious employer" is defined very narrowly. It includes churches and religious orders, (20) but not Catholic universities or Catholic charities. Nonprofits like us are classified simply as "eligible organizations." (21)...