Read any mainstream editorial on same-sex marriage or the ACA’s contraception mandate, and chances are that any time religious freedom is mentioned, it’s either put in quotation marks or labeled “so-called.” This demonstrates an utter ignorance on the part of many when it comes to the nature and importance of safeguarding religious liberty.
Attempts to demean lawmakers, jurists, and charitable organizations who are fighting to protect this freedom underscore the fact that its opponents not only don’t value the free exercise of religion, but that they do not even believe it’s an actual and basic right. I would quickly point such people to the first amendment of the US Constitution, which explicitly protects the free exercise of religion. Perhaps more importantly, the Bill of Rights’ protection of religious freedom belongs to the longstanding philosophical and common law tradition that undergirds Anglo-American liberal democracy. So no, religious freedom is not “so-called,” nor did conservatives simply pluck it out of thin air.
The past decade or so has witnessed an increasingly prevalent tendency to treat religion as just “one other thing” that constitutes one’s identity. Indeed, in his highly influential book Why Tolerate Religion?, Brian Leiter argues, “there is no compelling moral or legal reason to provide special protection to religion as such.” According to his reasoning, if matters of religious conscience deserve toleration, it is because they involve matters of conscience, but not religion per se. The driving force behind such an attitude, I believe, is an inherent misunderstanding of the essence of religious belief.
As has been argued by many others before me, the distinguishing feature of religion in any secular legal system is its suprarationality. Now, this doesn’t mean that religious moral claims are exempt from reason. Rather, the suprarational nature of religious beliefs implies that they aren’t beholden to rationality alone. In other words, religion simultaneously accepts and goes beyond the claims of reason.
This is precisely what legitimates the legal justification for protecting religious freedom, because suprarationality restrains the jurisdiction of human law, which is and ought to be guided by reason alone. The right to religion sets constitutional limits on the state by protecting human persons and institutions from external political coercion. It is therefore self-evidently wrong for the law to go beyond its power by either commanding or forbidding beliefs that transcend the scope of reason. This is and has always been the foundation for the legal protection of religious liberty, and makes those who assert its “so-called-ness” all the more ignorant.
At this point, the misinformed may contend that the protection of religious exercise should be curtailed when it violates the principle of separation of church and state. This critique, however, is based on a historically flawed conception of the doctrine itself. The establishment and free exercise clauses were never meant to suggest that the state could not recognize, or even actively nurture, the social merits of religion. As Alexis de Tocqueville observed long ago, religious liberty has the power to foster economic prosperity, cultivate a democratic spirit amongst the public, and strengthen local communities and the family. The state, therefore, has a prerogative to vigorously defend religious freedom.
Attempts by “oppressed minorities” to disparage religious freedom points to a troubling tactic among those on the Left who seek to secure a tyranny of the majority. One need not look further than pro-abortion groups and large segments of the LGBT community that are demanding small businesses and charities to violate their deeply-held religious beliefs. They insist upon a distorted version of “tolerance” that turns the actual meaning of the word on its head, accusing those who protect religious freedom of hate crimes. The veneer of tolerance seems to apply only to those views with which Leftists already agree. I fear that if our nation continues down this course, the liberty to conscientiously dissent against any majority opinion may very well be relegated to the realm of sardonic quotation marks.