Ryan Anderson and our own Greg Forster and have lately called our attention to an important trend governing debates over religious freedom. Ryan’s review of Bryan Leiter’s book on the matter gives us a good summary of one position: “there is no reason that religion should be protected above and beyond any claim of conscience.” Leiter is not alone in his argument, unfortunately. Noah Feldman at Harvard has a similar position; we don’t need freedom of religion, just freedom of individuals’ consciences. (An excellent debate on this matter between Feldman and Stanford’s Michael McConnell can be found here.) A few years ago, Winnifred Sullivan wrote in The Impossibility of Religious Freedom that “Without an explicit protection for religion, guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society.”

Yikes. Greg and Ryan agree that this position—viz., that no explicit protection for religious freedom is desirable or necessary—is wrong, but they articulate the point differently: Greg points to the fact that “religion has an institutional dimension that conscience lacks,” and reminds us that “Christianity cannot be what it is if the total primacy of God’s claim on our lives and the mission he has given us in the world is not permitted to achieve institutional expression in all areas of life, rather than simply in churches narrowly defined.” Ryan, likewise, seems to hold that the state can wrongly interfere with religious liberty even when it directs its acts against “the inner workings of religious organizations, their hiring decisions, their determinations of ministers and doctrine, and so on.”

Combined, I think these positions provide one possible—and very persuasive—answer to Feldman, Sullivan, Leiter et al.: Religion needs to be preserved over and above conscience because religions’ institutional dimensions elicit expressions—and even demands—on people’s lives that may or may not overlap with expressions and demands of individuals’ conscience. Maybe an individual Catholic doesn’t personally have a problem with providing contraception to her employees, but she does have a problem with disobeying the teachings of the Church. It’s not only her conscience but also the institution’s ‘conscience’ that matters.

The question of why we must have freedom of religion rather than just freedom of conscience has another possible answer, though, one grounded in man’s nature. There’s an old and oft-neglected doctrine of St. Augustine referred to as the capax dei, the capacity for God. As an implication of our status as creatures made in God’s image, we have a natural capacity to receive God, which has a corresponding desire for Him. Brother André Marie explains the doctrine well:

Man’s being capax Dei. In placing man’s desire for God in the intellect, St. Thomas has given us the faculty in man which is ordered to God… “‘The natural desire is an inclination: the ordering of potency [in this case, the intellect] to its act, to its object, a tendency.’ Every potency has a natural desire of its act.” It should be noted that this is not an appetitive motion or an “act” of the intellect. The intellect “desires” heavenly beatitude as a rock “desires” the ground when lifted above it.”

This is important for the question at hand, because a natural capacity and desire for God means that we as humans must be free to pursue not only our consciences’ demands, but God Himself. This is a subtle but very important distinction, for if we need only obey our own consciences, we can probably stop with philosophy, which helps us understand the nature of the good. But if we have natural desires and capacities to know God, we must also have religion — and, consequently, freedom of religion. (Unless the state is prepared to either a) take on Augustine, or b) argue that knowing God has nothing to do with institutional religion. In either case, well…good luck?)

I’m not sure which of these approaches is better, or if there is a different approach altogether, for protecting the freedom of religion over and above that of conscience (which, I hope it goes without saying, we must also protect – and as I wrote in an earlier blog, that can get tricky when we’re balancing libertas personae with libertas ecclesiae). But it’s an important question, and I’d be grateful for anyone’s thoughts on the matter.

*Corrigendum: In the original post, I had quoted Ryan Anderson as saying “Christianity cannot be what it is if the total primacy of God’s claim on our lives and the mission he has given us in the world is not permitted to achieve institutional expression in all areas of life, rather than simply in churches narrowly defined.” It was in fact Greg’s quote, and the post has been corrected to reflect this.