What freedom of religion is not

So, what is freedom of religion! Since the meaning of‘freedom of religion’ has been so misunderstood, it is important for us to see first just what it does not mean, and how this misunderstanding affects both those who are for ‘religion’, those who are against it and those who are indifferent to it. Only then can we better understand

what freedom of religion does mean, so that it can be intelligently argued for, even argued against, or even be consciously ignored, especially in the important church/ state debates over the proper role of‘religion’ in public life.

Freedom of religion in our democratic, pluralistic polities is not what in premodern times was called libertas ecclesiae or ‘the liberty of the Church’. There are two reasons for not identifying modern freedom of religion with mediaeval liberty of the Church. First, in pre-modern European polities (that is, in ‘Christendom’), the Church and the State were the two interrelated institutions (‘Two Swords’) that jointly governed society. But, as the state was taken to be ‘secular’ or ‘temporal’, and the Church was taken to be ‘eternal’ (as ‘the body of Christ’), the Church was supposed to be the senior partner in this political relationship, while the state was supposed to be the junior partner. Thus the state was to take its warrant from the Church, not vice versa. (Of course, as evidenced in the throne/altar conflicts of the Middle Ages, the powers-that-be of the State like King Henry II of England in his struggle with Archbishop Thomas à Becket, had other ideas about the balance of power between the State and the Church.) Second, the Church was monolithic just as the State was monolithic. As for groups of un-orthodox Christians, designated as heretics by the Church, they were most often persecuted by the Church with excommunication and by the State with imprisonment, banishment, or execution. As for non-Christian ‘infidels’ like the Jews, they were at best tolerated (usually a matter of contract between the monarch and the Jewish community in their realm), or at worst denied the right of domicile altogether or expelled, even if this had been their right previously (most famously from Spain before 1492). There was no pluralism then at all. Furthermore, after the 1555 Peace of Augsburg, when it was decided that ‘the religion of one’s prince is one’s religion’ {cuius regio eius religio), which divided Europe into Catholic or Protestant states depending on the religion of those having political power, the balance of power in the church-state relationship shifted in favor of the State. Nevertheless, the monolithic role of the Church (whether Catholic or Protestant) remained unchanged. There was still but one official religion just as there was but one official state.

All of that changed dramatically with the introduction of the Constitution of the United States of America in 1789, and the ratification two years later of the first ten amendments to it (the ‘Bill of Rights’). As we have seen, the first amendment to the Constitution prohibits ‘respecting an establishment of religion’. The meaning of these five words has been hotly debated ever since they were published more than two hundred years ago.

Some more radical secularists, no doubt inspired by the French notion of laïcité, have interpreted this to mean that any public role for any and all religions is to be prohibited; and that includes any mention of God as the state’s ultimate authority. Religious affiliation, which means allegiance to some god, is to be


For my critique of this kind of radical secularism in the context of the Kulturkampf between secularists and 'religionists’ about the character of their society in the State of Israel, see Zionism and Judaism: A New Theory (Cambridge University Press 2015), 153-171.

a purely private matter, not to have any public influence, let alone any public authority. These secularists point out that this is consistent with the preamble to the Constitution that begins, ‘We the people of the United States of America.’ That seems to immediately indicate just where the state’s ultimate authority lies.[1] And, when it is pointed out that the document that made the adoption of the Constitution of the fully independent United States of America possible, namely, the Declaration of Independence of 1776, speaks of‘all men ... being ... endowed by their Creator with certain unalienable rights’, they argue that this was only a sop to a predominantly Christian populace by the non-believer, non-Christian Thomas Jefferson. It is also argued that the Declaration has no official status in the United States, irrespective of its undoubtedly great historical importance. Freedom »/religion is thus reduced to freedom from religion. Moreover, it could be said that the religion secularists want to be free from is for them a phantom. So, in fact, what they want to be free from is not any religion, but rather from the power and influence of those people who believe the religion they profess is true because the God it proclaims is truth, and thus it ought to be heard in public. (There are radical secularists who even regard the private exercise of religion to be delusional, which like witchcraft, for example, is something the state should be suspicious of when citizens indulge in it and expose their children to its irrationality.)

The radical secularist interpretation of the First Amendment would be more convincing, however, if the clause had read, ‘Congress shall make no law respecting religion.’ But not respecting ‘an establishment of religion’ more likely means that there is to be no established or official religion in the United States as there is an established Church in Great Britain, against whom the United States had so successfully revolted and then became a fully independent polity of both Britain’s State and its Church. The mistake, both historical and philosophical, of this secularist reading of the first clause of the First Amendment, though, is to assume that the only connection to God is through revealed religions (plural). But, if churches (that is, any established religious community) look to historical theophanies or manifestations of a commanding God for their warrant, and if this is the only coherent relation to God (a point many disciples of Karl Barth would readily accept, though for very different reasons), it follows that proscribing public authority to any religious establishment means proscribing public recognition of the sovereignty of God their respective revelations proclaim. In other words, God’s existence can only be affirmed via historical revelation, so that when one is denied the other goes down with it ipso facto.

Enter the Canadian Charter of Rights and Freedoms, whose preamble (it will be recalled) begins, ‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.’ Now it is reasonable to read ‘the supremacy of God and the rule of law’, not as two separate assertions, but rather as two phrases in apposition, so that God’s supremacy underlies the rule of law, and the rule of law actively expresses God’s supremacy. Indeed, one could argue that this is consistent with the assertion of the U.S. Declaration of Independence that human rights and natural rights are made by ‘Nature’s God’ for humans, who are thus ‘endowed’ with them ‘by their Creator’.[2] This God is taken to be the Supreme Lawgiver.

Even though the Declaration does not speak of ‘laws’, but rather of ‘rights’, laws command duties, which are acts that enforce rights as appropriate or rightful responses to them. So, if rights are the prior public claims made by both individual persons and corporate persons, law then subsequently sanctions these rights as justifiable claims made by one party upon another. Thus a polity that fully and consistently enforces this legal correlation of rights and duties can be truly called a Rechtstaat, that is, a ‘constitutional polity’. So, for example, if I have a right to life (as the Declaration proclaims), then all others (whether individual or corporate persons) have a minimal duty not to impede my exercise of that right. (This is what Oxford professor Isaiah Berlin famously called ‘negative freedom’.) But who makes the law? For if laws are essentially commandments, and since ‘command’ is a transitive verb, it therefore requires a subject in order to be expressed in a coherent sentence. (As the late French-Jewish philosopher, Emmanuel Levinas, emphasized, le dit, i.e., ‘what is said’ presupposes le dire, i.e., ‘who said it’.) Clearly, the answer to this question, for both the U.S. Declaration and the Canadian Charter, is that it is the Creator God, who alone could build these rights-enforcing-laws into created human nature. Furthermore, the Charter has the advantage of speaking of‘God’, and ‘law’, and rights’, not in two separate documents - one official and the other unofficial - as is the case with the U.S. Constitution and the Declaration of Independence, but in one coherent constitution. What the Declaration adds to this mix is the idea that the God who endows rights is ‘Nature’s God’. Indeed, it could be said that Nature’s God endorses secularity - as distinct from ‘secularism’ - insofar as God as Creator of worldly nature (especially human political nature) does not confine the revelation of His will to a strictly ‘religious’ context.

To speak of ‘Nature’s God’ is not to equate God and Nature as did Baruch Spinoza (deus sive natura).xi Rather, ‘Nature’s God’ is the God who creates nature, and who thereby transcends nature as the Creator transcends the creature. This is not to say that this God is different from the God of biblical revelation, for the God of biblical revelation reveals Godself as the One who is more, but not less, than the Creator of nature. In fact, revealed law would lose its ultimate authority if it did not come from the God who creates the universe. Nevertheless, there are two kinds of revelation of this same God. This is a fundamental point emphasized by the Calvinist theology that so influenced the mostly Protestant Americans and Canadians who founded their respective countries.

There is ‘special’ revelation through which God constitutes a relationship with a particular historical community whom God has elected for a mutual relationship the Bible calls ‘the covenant’ (ha-brit in Hebrew). On the other hand, there is ‘general revelation’.[3] This revelation is the ready evidence of the intelligible orderliness or nature of the world in which humans have to live, and from which rational humans can infer the existence of a supremely intelligent or wise cosmic Orderer. The meaning of this general revelation has been formulated in what is called ‘natural theology’.

Law is the way humans, according to their own nature, order their own lives together as ‘living political beings’ (Aristotle’s politikon zd’ori)) ‘Natural law’ (lex naturalis) is taken to be the way God has ordered human life beneficently, and which humans can imitate so that their own subsequent law-making can have cosmic significance. So, what distinguishes general revelation from special revelation is that special revelation is an historical event in which God directly commands a particular community for the sake of an interrelationship between God and them. On the other hand, general revelation is available to all humans everywhere and at every time, because it is not an historical event, but rather a naturally universal (or universally natural) manifestation. From this ubiquitous manifestation, God’s commandments are not directly heard, but only indirectly inferred. Outside of this historical context, God’s existence as Creator of the cosmos (that is, the supremely ordered universe) is not directly experienced, but is only assumed. That is how natural law presupposes natural theology', and natural theology entails natural law. Nevertheless, as we shall see later, natural law can be affirmed, and is affirmed by some, without any connection to natural theology at all.

While proponents of natural theology’ and natural law can, arguably, also be proponents of revealed theology and revealed commandments, this connection of the two commitments is not necessary - at least philosophically' speaking. In other words, one can be a ‘naturalist’ in theory’ and praxis without being a

What is religious freedom ? 15 committed adherent of a revelation that contains both theory {qua theology) and praxis {qua law). Indeed, such could be said about Thomas Jefferson, the author of the Declaration of Independence, and James Madison, the author of the Bill of Rights appended to the U.S. Constitution. Moreover, the notion that universalis-tic natural law must be derived from revelation is something that can be rejected (arguably to be sure) by adherents of revelation-based traditions and their communities. That is because there are Jewish, Christian—and Islamic—thinkers who argue that their respective traditions do not claim to be the original promulgators or inventors of natural law (or even natural theology).[4] Instead, they argue that their respective traditions assume that natural law has already been known and practiced in the world before the revelatory events these traditions base themselves on occurred in the world. Thus their respective traditions have built upon this natural normativity (what in rabbinic theology is called sidrei beresheet or ‘orders of creation’) rather than vice versa.

This provides a needed clarification of what is often called the ‘Judaeo-Christian ethic’, both for those who argue for it and for those who argue against it. Let us say that this ethic consists of the moral norms Judaism and Christianity teach, which is due to their common acceptance of the moral teachings of the Hebrew Bible or Old Testament, despite the considerable theological differences between the two separate religions. Since Judaism and Christianity are revealed religions, doesn’t saying this united ethic is the foundation of our secular law (as was famously proclaimed in 2003 by the Chief Justice of the Supreme Court of Alabama, Roy Moore, about the core of that ethic, the Ten Commandments) fly in the face of the First Amendment’s proscription of ‘an establishment of religion’? However, the most that can be said in favor of the public value of this kind of‘Judaeo-Christian ethic’ is that these two, closely related traditions historically have been the most consistent and effective proponents of natural law morality. That is, they help promote natural law quite effectively, though natural law’s intelligibility is not strictly required by this promotion. Indeed, it could be said that Jewish ethics and Christian ethics (and now we realize the same for Islamic ethics) are only original when they offer norms for the God-human relationship rather than norms for the inter-human relationship, most of which are already known long before Moses, Jesus, or Muhammad arrived in the world with their special revelations. What the great prophets did was to incorporate intact interhuman norms up unto the divine-human covenantal relationship. That means their content remains the same, only their ultimate form is transfigured.

Finally, in this very long discussion of what freedom of religion is not, I would say that because many opponents of religions having any public authority are also

positivists who oppose natural law, they have nothing to offer those looking for the moral warrants of American or Canadian law, moral warrants that inevitably need a metaphysical constitution or foundation of the nature of the very humans and their societies to obey law that is consistent with human nature and to disobey law that is inconsistent with that nature. As such, they have no real alternative to offer those who refuse to repress what might be called the ‘metaphysical needs’ of rational human persons, needs that can be no more repressed than can our bodily needs or our social needs be repressed. And, while an affirmation of natural law does not fully satisfy our metaphysical need to be related to the transcendent God, at least it offers an alternative to those who would see the state functioning as a religion claiming to satisfy that metaphysical need by grounding public morality. Moreover, a commitment to natural law could, in fact, bolster the desire of secularists to be free from religion, but without a descent into the moral chaos of relativism. Indeed, the integrity of the secular realm is best protected when the proponents of a secular realm do not claim religion-like authority for it; and the integrity of religions is best protected when the adherents of religions do not claim secular-like authority for their religions.

  • [1] See Alan Dershowitz, America Declares Independence (John Wiley and Sons 2003), 98-103. 2 See Richard Dawkins, The God Delusion (Houghton Mifflin 2006), 325-344. 3 See Karl Barth: Church Dogmatics, selected by H. Gollwitzer, trans., G.W. Bromiley, ed. (T. & T. Clark 1961), 49-65. Barth’s rejection of any non-revealed connection to God is shared by many Jewish and Muslim theologians; his rejection is only the most famous and most influential.
  • [2] See John Courtney Murray, S.J., We Hold These Truths: Catholic Reflections on the American Proposition (Sheed and Ward 1960), 295-336. 2 See David Novak, Covenantal Rights: A Study in Jewish Political Theory (Princeton University Press 2000), 3-25. 3 Isaiah Berlin, ‘Two Concepts of Liberty’, in Four Essays on Liberty (Oxford University Press 1969), 122-131. 4 Emmanuel Levinas, Otherwise than Being, A. Lingis, trans. (Duquesne University' Press 1998), 23.
  • [3] Baruch Spinoza, Ethics, IV, preface. 2 John Calvin, Institutes of the Christian Religion, 1.1-9. 3 Aristotle, Politics, l.l/1253al-5; 3.5/1278b2O-25. 4 Thomas Aquinas, Summa Theologiae, 2/1, q. 91, a. 1; q. 93, a. 3; q. 96, a. 4.
  • [4] See Anver Emon, Matthew Levering, and David Novak, Natural Law: A Jewish, Christian, and Islamic Trialogue (Oxford University Press 2014). 2 Babylonian Talmud: Shabbat 53b. 3 Speech by Judge Roy Moore at Monument Dedication, 19 December 2002, WFSA12 News, https://bit.ly/3g6a0Ty/.
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