The tortuous course of religious freedom.

• Author: Smith, Steven D.
• Position: Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

ABSTRACT

This Essay, written for a conference at Notre Dame on Dignitatis Humanae, considers new challenges to and issues for religious freedom that have arisen recently in a world significantly changed from that of the 1960s, when the Declaration was first issued.

INTRODUCTION

Religious freedom is an ideal, understood in terms of what proponents take to be vital, timeless truths. Religious freedom is also a messy, ad hoc compromise worked out under conditions of prevalent error and potential oppression.

Thus, a religious believer presumably would wish that all of humanity would come to embrace the saving truth. If the believer is a Christian, she might fervently pray that "every knee should bow, ... and every tongue confess that Jesus Christ is Lord." (1) But even someone who has no idea what the saving truth is might still wish that, if there is such a truth, everyone might come to know and accept it. If all of us converged on a single blessed truth, though, religious freedom would lose its importance: we might or might not have it, but we wouldn't really need it. Or at least we wouldn't need to talk about it, argue about it, fight for it, develop legal protections for it.

We worry about religious freedom when and because people do not agree: they believe different and seemingly incompatible things. Some of these incompatible beliefs may be true; many (and perhaps all) of them are, it seems, less than the pure truth. And disagreement--and especially disagreement resulting from and reflecting the fact of widespread error--falls far short of being an ideal state of affairs.

Those are the conditions under which religious freedom becomes relevant. Religious freedom seeks to make room to believe and live by higher truth in a world containing, and very likely dominated by, lower falsehoods; and it seeks to appeal to people who do not agree about what the truth is. As a result, religious freedom has--and probably always has had, and always will have--both a universalist but also a compromised, ad hoc, faintly grubby feel about it. That humans have intrinsic dignity, and that saving faith must be voluntary and genuine: these majestic propositions may perhaps be true in all times and places. But what mundane legal doctrine should declare, or how courts or legislatures should act: these are matters that may vary with the context. They may depend on, among other things, what sorts of errors happen to prevail and what sorts of injustices happen to threaten, and hence on what sorts of adjustments or compromises are needed to try to make room for truth to be believed, proclaimed, and lived.

Dignitatis Humanae (2) reflects both the universalist and the local or contingent quality of religious freedom. Much of the Declaration has a categorical or universalist tone to it. When the Declaration asserts that people are "bound to adhere to the truth ... and to order their whole lives in accord with the demands of truth," (3) or when it declares that "[t]he act of faith is of its very nature a free act," (4) the Declaration seems to be asserting propositions that would presumably be as valid a thousand years ago or a thousand years hence as they were in 1965. But the Declaration also conveys a sense of trying to be in accordance with opinions or developments of its own period.

Thus, the very first sentence in the document observes that "[a] sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man." (5) Later, the Declaration observes that "men of the present day want to be able freely to profess their religion in private and in public," and it goes on to reference the acceptance of religious freedom in "international documents," including, presumably, the Universal Declaration of Human Rights. (6) In these respects, the Declaration has a sense of trying to be in tune with the times. And it gently acknowledges that its emphatic endorsement of religious freedom reflects a change--or perhaps a development, at least in articulation--from church teachings or at least practices in earlier times. "In the life of the People of God, as it has made its pilgrim way through the vicissitudes of human history," the Declaration quietly confesses, "there has at times appeared a way of acting that was hardly in accord with the spirit of the Gospel or even opposed to it." (7) Although no elaboration is given, readers may perceive an allusion to the medieval inquisitions, or perhaps--I'm not sure--to the nineteenth-century Syllabus of Errors. But then the document immediately returns to the universal. "Nevertheless, the doctrine of the Church that no one is to be coerced into faith has always stood firm." (8)

On the whole, Dignitatis Humanae seems to me to have done a laudable job of adjusting the universal to the contingencies of the mid-twentieth century world. I speak lightly as an outsider, though; others, especially Catholics, will have more intensely formed views. (9)

In at least one important respect, though, the world has changed in the past half-century--and not, I am afraid, for the better. Thus, the Declaration perceived among the "signs of the times" (10) a tendency towards greater unity. "Men of different cultures and religions are being brought together in closer relationships." (11) Whether or not that perception was correct in (1965), it seems inapt today, at least in this country. On the contrary, the dominant perception today is of growing and increasingly acrimonious polarization among people of different religiosities (or of none). This polarization is often described as the "culture wars," and it sucks more and more of the previously moderate or complacent into its vicious vortex--including Justices of the Supreme Court. (12) What I view as the Court's tragically misguided and divisive same-sex marriage decisions--not only Obergefell v. Hodges (13) but also United States v. Windsor (14)--and the reactions thereto are just one vivid bit of evidence of such divisiveness.

This polarization has serious potential consequences for religious freedom. At least in the United States, one side of the culture wars is associated with "religion"; the other side is typically viewed as mainly "secular." This is a crude and simplistic description, to be sure, and I want to try to amend it later in this Essay. But for the moment we might acknowledge that despite its crudity, the description obliquely conveys a good deal of truth. For example, in the Proposition 8 case, District Judge Vaughn Walker cited data indicating that an overwhelming majority of California voters who attend church weekly (eighty-four percent) had cast their ballots for the proposition, while a virtually identical proportion of citizens who never attend church (eighty-three percent) had voted against it. (15) On same-sex marriage, therefore, the hot-button button issue of recent years, active traditional religiosity seems to have marked a cultural and political divide of Grand Canyon proportions.

But if religion comes to mark such a divide, then it seems utterly predictable that the consensus that once existed in favor of religious freedom--the unity observed in Dignitatis Humanae--would disappear. And that is what has happened. Douglas Laycock observes that in the past, when nearly everyone was a religious believer of one kind or another, religious freedom could be seen as "a sort of mutual non-aggression pact" that was beneficial to all. (16) Today, by contrast, "[m]uch of the nonbelieving minority sees religious liberty as a protection only for believers. On that view, a universal natural right morphs into a special interest demand." (17) As a consequence, Laycock explains, "[f] or the first time in nearly (300) years, important forces in American society are questioning the free exercise of religion in principle--suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized." (18)

This is a general description of our situation today, and of the challenge that faces proponents of religious freedom. But I want to be a bit more specific. So in the remainder of this talk, I want to discuss three more specific challenges or problems that should occupy proponents of religious freedom today.

1. THE PROBLEM OF FREE EXERCISE EXEMPTIONS

   For much of American history, a central strategy--arguably the central strategy--for protecting religious freedom has made use of what we might call the exemptions approach. The idea is to create exemptions or exceptions from general laws for people for whom compliance would constitute a violation of their religion. These exemptions or exceptions have not been categorical; usually they have been qualified by some kind of balancing test, applied either in formulating the exemption or on a case-by-case basis under the exemption. Probably the best known examples have been draft exemptions: people who are religiously opposed to warfare--Quakers would be the classic example--have often been excused from military service, though they might be required to perform some sort of alternative community service instead.

   It is sometimes suggested that the exemptions strategy was a creation of the Warren Court era, beginning with the well-known case of Sherbert v. Vearner. (19) But I think the admirable casebook of which our keynote speaker, John Garvey, is a coauthor, amply demonstrates that this suggestion is mistaken. From the Founding period onward, advocates and courts have considered and sometimes approved exemptions for religious dissenters. (20) To be sure, whether and in what circumstances religious objectors should be exempted have always been contested questions. But support for such exemptions goes back to the beginnings of the American republic. And of course a presumptive requirement of exemptions was officially adopted in constitutional doctrine from the (1960) s through 1990, and then in statutes such as the Religious...