Patrick Mckinley Brennan, the "right" of Religious Liberty of the Child: Its Meaning, Measure, and Justification

• Citation: Vol. 20 No. 1
• Publication year: 2006

THE "RIGHT" OF RELIGIOUS LIBERTY OF THE CHILD: ITS MEANING, MEASURE, AND JUSTIFICATION

Patrick McKinley Brennan^*

The true source of rights is duty.

Gandhi¹

INTRODUCTION: "RIGHTS," DECLARATIONS, PERSUASION

The question I wish to raise concerns religious liberty for the child and specifically what it means to say, as people sometimes do, that the child has a human or natural²right to religious liberty. Such an inquiry may seem otiose. After all, to question human rights is retrograde; to oppose liberty, unenlightened; to slight children, downright despicable. Add to this the widening embrace of children's rights as declared in international instruments and there results the risk that little becoming remains to be said here.

There is, however, a wildcard in the mix, and its name is religion. All "human rights" are not, it seems, created equal. The right of religious liberty, though "the oldest of the internationally recognized human rights," has retrogressed into the "'neglected grandparent' of human rights."³In the nation that first assayed to give its citizens and the world a living experiment in true religious liberty, genuine religious liberty is arguably further from realization than ever.⁴Not only are violations of religious liberty frequent in the United States, they occur with the secular blessing of the Supreme Court, and are systematic-not sporadic. "The U.S. Supreme Court has ensnared the First Amendment religion clauses in a network of antinomies," according to one of the nation's leading scholars of law and religion.⁵Charting the Supreme

Court's course with respect to religious liberty, another leading scholar warns against renouncing our constitutionally enshrined rights when they fall out of favor.⁶By the reckoning of almost anyone who takes the right to religious liberty seriously, we behold a dispiriting state of affairs, a case in John T. Noonan, Jr.'s point that "declarations are not deeds, that a form of words by itself secures nothing, and that the same words pregnant with meaning in one cultural context may be entirely barren in another."⁷

The "free exercise" language of the First Amendment, much like Socrates says in the Phaedrus with respect to writing in general, just lies there; the little black marks on the page are powerless to raise themselves up and make progress in human minds.⁸When words contribute to the creation of positive liberty, it is because they issue from and receive the intelligent attention of the minds of the individuals and communities charged with living under and administering those words. No one is converted by a syllogism, and a commitment to creating the conditions precedent to the exercise of religious liberty requires more than a nod in its direction. If true liberty of religion is to be possible, the men and women who control the institutions that are necessary for realizing the conditions necessary to that liberty must themselves appropriate the meaning of religious liberty-fathom its implications, its costs, its complications-and proceed to their deeds prepared persuasively to identify the conditions necessary for true liberty for religion. For unless they can persuade, the only tools to their hands will be chance and force. Chance is a force that is not ours to administer, and what force we can forge is, at least in the long run, the enemy of liberty. As one scholar mused: "Is everyone to use force against everyone to convince everyone that force is beside the point?"⁹

This Essay's insistence upon persuasion may strike a dissonant chord. To some philosophical minds, it suffices to declare that our human rights just are our human rights. This simplistic strain of thought has a past. Though the notion of a "right" has a history older than the Reformation, a history discussed below, it is fair to say (paraphrasing John Rawls) that "rights" in the sense we ordinarily speak of them today emerged in the post-Reformation as a response to pluralism-religious pluralism in particular.¹⁰Among people who had failed to persuade one another of the details of the good life and of what God asks of his intelligent creatures, rights took on a life of their own, ostensibly self-sufficient points of agreement in a universe of disagreement.¹¹As the rudiments from which "liberal democracy" is constructed, rights are said to precede-and to survive any political implementation of-comprehensive conceptions of the good. The agreement betokened by talk of such rights is as consequential as the disagreement it masks, as Richard McKeon observed in

1947:

The conception of natural rights, sacred and inherent in man, was written into the constitutions of the eighteenth, nineteenth and twentieth centuries, not because men had agreed on a philosophy, but because they had agreed, despite philosophic differences, on the formulation of a solution to a series of moral and political problems.¹²

In the context of the United Nations Educational, Scientific and Cultural Organization's (UNESCO) drafting of the prototype of such documents, the Universal Declaration of Human Rights (Declaration),¹³Jacques Maritain did not shrink from acknowledging the poverty and pregnancy of the situation:

How . . . can we imagine an agreement of minds between men who are gathered together precisely in order to accomplish a common intellectual task, men who come from the four corners of the globe and who not only belong to different cultures and civilisations, but are antagonistic spiritual associations and schools of thought . . . ? Because . . . the goal of UNESCO is a practical goal, agreement between minds can be reached spontaneously, not on the basis of common speculative ideas, but on common practical ideas, not on the affirmation of one and the same conception of the world, of man and of knowledge, but upon the affirmation of a single body of beliefs for guidance in action. No doubt, this is little enough, but it is the last resort to intellectual agreement. It is, nevertheless, enough to enable a great task to be undertaken . . . .¹⁴

Is it enough to bring the Declaration to fruition? Of course not. Maritain knew as well as anyone that declarations are not deeds.¹⁵But Maritain, McKeon, UNESCO, and the United Nations spoke in the context of leaders and a world broadly eager to do deeds and already fairly clear about which deeds to do first. Having recently been led down a via negativa rendering palpable the horrors of not making certain egregious behaviors simple "don'ts,"¹⁶there was an urge for action, for which blunt language manifesting wide agreement would be a great rhetorical help. And in point of fact, the

Declaration and its progeny have done yeoman's service in the work of securing liberty and justice for all people. Michael Novak, no stranger to this subject, stated the following when celebrating the Declaration's fiftieth anniversary:

A small band of intrepid thinkers and doers succeeded, fifty years ago, in doing what many thought impossible, formulating a document to which all nations on earth might repair, and a document that was as responsible as anything for the "Helsinki process," which many credit with undermining the legitimacy of Communist governments in Eastern Europe. For here were official documents, signed by their own government officials and proudly published (at first) in official Communist newspapers, that informed dissidents of rights they didn't know they had. Waving these newspaper clippings, they embarrassed their leaders and put them on the defensive.¹⁷

Declarations are not deeds; pregnant language may yet become barren. It is not enough to "stand for" religious liberty, to declare its choice worthy. People, both leaders and citizens, must be persuaded to act.

Documents do not entail deeds nor do they specify the particular deeds to be done by those poised to act. Action is called for, and actions are always particular, performed in the present, in a world that has not been beheld before. The purposefully anemic language of the declarations leaves for future identification the particulars of the deeds to be done. Again McKeon, writing in the late 1940s, catches the conflict, the danger of reposing upon language, including the language of rights:

The fundamental problem is not found in compiling a list of human rights: the declarations of human rights that have been prepared by committees and group who have undertaken the study of the problem and the declarations that have been submitted to the Commission on Human Rights are surprisingly similar, and little difficulty is encountered in the mere statement of the rights that ought to be included in the list. The differences are found rather in what is meant by these rights, and these differences of meanings depend on divergent basic assumptions, which, in turn, lend plausibility to and are justified by contradictory interpretations of the economic and social situation, and, finally, lead to opposed recommendations concerning the implementation required for a world declaration of human rights.

These three sources of differences concerning the meanings of human rights render nugatory any agreement concerning the list of human rights, and indeed, once they are raised, make even agreement concerning the bare enumeration impossible. The faith 'in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women' which is re-affirmed in the Charter of the United Nations stands in need, if it is to be significant, of some resolution of these differences. . . . Opposed philosophies lead to opposed interpretations of history and the present. . . . The debates concerning a modern declaration of rights will turn, not on questions concerning what the rights are, but on questions of basic assumptions, actual fact, and appropriate implementation. ¹⁸

Declarations are not deeds.

I. FROM NATURAL RIGHTS TO NATURAL DUTY

Declarations are not deeds, and non-accidental correct deeds will proceed from correct...