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.

It’s been a week with very little time to sit down so until now I hadn’t yet responded to Greg’s very persuasive post concerning the religiosity of the religious nones. He writes:

“If our goal is to figure out how moral consensus could be rebuilt among people of diverse religious belief and practice in our society, it seems to me we would be well advised to adopt a definition of “religion” that tracks with what our society would treat as a religion. The practical problem before us is that the nones are treated as having a right to live as nones – to live in accordance with what Karen calls their “ideology.” And I do not see how we can maintain religious freedom without granting that right. So isn’t their ideology a religion at least for our practical purposes, even if it might not be one for other purposes?”

Two things here. First of all, as I mentioned in the post Greg is responding to, the question of what is or is not religion is, I think, probably not the most important. Greg would like to include what I would term “ideology” as religion, and I’m quite happy to go along with what he suggests – to treat ideology as a religion for some purposes, even if it might not be for other purposes. Again, I don’t claim any sort of access to the Form of Religion (and I don’t think anyone is trying to claim such knowledge, if it exists), and in any case I think none of us wants to get caught up on semantics, which I’m in danger of leading us straight into.

Second, as concerns Greg’s question of whether the religious nones should be treated as having a right to live as nones: Absolutely yes. Religious freedom must grant the right to those who practice was I was calling ideology to live according to whatever religion or non-religion one believes (within limits that, as far as I’m concerned, the Supreme Court has so far been quite good at identifying, though in upcoming years that could change). I would simply call that “secularism” or “atheism” or “agnosticism,” but here, too, I think the semantics are probably not the central issue.

But where the semantic distinction does matter, I think, becomes clearer when we examine our understanding of religious liberty. It has historically comprehended both “libertas personae” and “libertas ecclesiae”, or the freedom of both the individual and the freedom of the church. The distinction has been lost in our very individual-belief-oriented religious culture, but as religion is increasingly being called into question, I think we are starting to see that religion has perhaps always been more than a matter of just what one person believes; he or she is always standing on the shoulders of giants who have, very often, worked as members of a body (ecclesia). With or without formal members of the clergy, churches and other religious institutions have established some sorts of structures and corporate identities that bear on but are not synonymous with the religious identities of their members. And I think it is important that we grant religious institutions the freedom – the libertas ecclesiae – to continue to do so. (Thankfully, the Supreme Court unanimously upheld this right in last year’s Hosanna Tabor case.)

Granting libertas ecclesiae to religious institutions does not in any way lessen the libertas personae of those whose religion or ideology is less formal. In other words, on the individual level, both a Mormon and the Savoyard Vicar are equally religious in the sense that they both are protected by the right to religious freedom qua individuals. But corporately, they are quite different. Mormonism has a unifying structure in its church – which is not to say that all Mormons agree on what it both does say and should say, but rather that that is a matter internal to the Mormon church as  a matter of libertas ecclesiae. (This is why I included “unifying figure” in my very rough operative definition of “religion”: there is something, not necessarily a god but something sharing in divine characteristics, which an institution most certainly can be thought to do, that unifies its members more tangibly than shared sentiment.)

This, incidentally, is something that has at times gotten lost in the furor over the HHS contraception mandate. The mandate to provide contraceptives and abortion services is so offensive to us not only because it would require individual employers to act against their individual consciences – which is bad enough – but also because it requires members of a religious body, or ecclesia, that officially forbids the use of contraception – minimally, the Catholic Church – to choose the state over the church.

I’m not sure that Romanticism merits the same type of corporate protections as do the Mormon or Catholic churches. But maybe it does, so I’ll stop here and hope Greg will bite!

Disclaimer: I recognize that it is easier to be a cynic than to argue – well – that there is cause for hope. I’ve perhaps too taken the former path in posts while Greg has bravely forged (oh dear) “forward” with “hope” for renewed moral consensus in America. (Greg, I promise those words were coincidental.) So I must apologize for yet again playing the moral consensus Scrooge.

After rereading Greg’s response to my post on whether religion has any “added value” (which Dan wisely revised to “added value that can be shared”), I’m beginning to think that we might be responding to questions that are significantly, though subtly, different. That difference has to do with the distinction between Greg and me on what the term “religion” denotes. I’m getting ahead of myself, because I’ve assumed without verification that Greg does indeed mean to use the minimalist definition of ‘religion’ as a combination of reason and experience, while acknowledging that to many people, it is much more than that (though even for them, it is at least that). But for argument’s sake, let’s assume that either he (or someone else) does want to use that idea of religion.

My own position is that religion is necessarily more than that, and while it would take a book to lay out a good workable definition, suffice it to say that I take religion to mean not only reason and reasoning about experience, which to me seems like ideology, but also some sort of worship of a unified figure that adherents recognizes as somehow divine. This needs explanation, refinement, defense, etc. But the definition of religion isn’t the point here, so I’ll risk sloppiness so as to raise the question I’d actually like to ask, which is, in brief, “Do we need religious renewal in order to have renewed moral consensus?”

When Greg is talking about the religious “nones” (i.e., those who respond “none” in surveys about their religious affiliation), he is talking about people who may have what I would term “ideological” commitments and what he would call “religious” commitments in the forms of Romanticism, Marxism, perhaps Utilitarianism, etc. He asks whether “we should think of the nones as potential recruits to religious movements”, with the implicit hope that with some religion, the ‘nones’ might become those we ally ourselves with on issues of public morality rather than those whose positions we must oppose.

Why this is different from what I thought we were talking about, then, is because I rarely think of religious (as I understand it) conversion as a prerequisite for renewed moral consensus in America. I tend to think like Hadley Arkes (no surprise there, I know) in the article Greg cited; i.e., I think that we can appeal to a standard of justice knowable by natural reason without explicit (note bene! explicit!) appeal to religion or religious doctrine. So that’s my hopeful side – we can still reason with each other in the public square once that public square has lost religion. (But only to a degree, and here we need to talk about the effects of the obliteration of religion on one’s ability to reason.)

A whole slew of qualifications have to follow. One, I don’t think that one’s ability and willingness to accept such standards of justice are the most important; the salvation of souls matters infinitely more, and that certainly can’t be done by natural reason alone. Two, it would be way better, certainly for souls and almost certainly for moral consensus, if we did actually experience a religious (ok, I’m partisan, Christian) renewal in this country, which is what I take Greg to be hinting at in his comment on the religious nones becoming part of broader religious movements (please correct me if I’m wrong, Greg!). And three, none of what I’ve said or am going to say should be taken as reason to spend any less efforts on evangelizing, and that for the aforementioned reason – no matter how low public morality gets in this country, souls matter more.

But here I put my Scrooge hat back on, because it seems to me that the ‘religious’ people who are, in my terms, only ideological, are not so easily swayed. And that is because, as Greg certainly holds by his including Marxism and Romanticism in the category of “religion,” they also hold beliefs deeply. Yes, if, as Greg suggests, they convert to Christianity, we’ll have more grounds for moral consensus. But at the moment, they are religious nones who have instead ideologies. And that, it seems, puts us back into our own camps, that is, IF we are to rely on the “shared added value” of religion as our grounds of moral consensus. It would be nice – really, really, really nice – if we could in fact rely on that shared added value of religion on which to base a moral consensus, but right now, I’m inclined to think that we need instead to sharpen our “reason and experience” articulation skills, to pry open the door to moral reasoning in the public square.

As we can expect, Greg asked a fantastically thought-provoking question in his post the other day: “How can we take equally seriously [as reason and experience] the role of religion itself as a formative anthropological influence” in forming a basis of moral consensus in a liberal society? What we’re after here seems to be both a deep sense of religious freedom as well as the commitment to human dignity that pushes us to actually respect that freedom. Greg recounted Peter Berger’s argument for experience as a basis for a shared sense of human dignity, using the “primal experience” of Huck Finn’s conscience. He also quoted Hadley Arkes’ article that, in part, came out in favor of reason and natural law even (at least sometimes) over religion, as a basis for protecting human dignity.

Presumably we want all three of these factors – reason, experience, and religion – to play a role in defending human dignity. Each of these three factors can and, I think, should help us in our effort to figure out how we know that “every human individual has a claim to moral significance”, which Greg aptly described as the sine qua non of modern liberal society.

But here’s what I’m wondering. Can it be said that of these three, only reason can really aspire to the status of “universal”? Here I’m sympathetic to Hadley, because religion – just religion qua religion – is no longer something that can be assumed. Berger’s candidate, experience, does give rise to some universality; at some level, we do just all know that certain behaviors are cruel or wrong and just shouldn’t be done. But the shared ground there seems to be coincidental, rather than essential. That is, it’s good that Huck Finn’s experience of conscience won the day in keeping him from turning in a slave, but “primal experience” seems simply not that operationalizable when we’re talking about public issues instead of recounting individual tales.

But this brings us back to Greg’s question: how can we use religion itself as a basis for knowing that we have the rights that we believe we do have? I think – and Greg will, I hope, correct me if I’m wrong – that another way of asking the question is, what does religion add to the picture over and above what reason and experience get us?And here, I simply don’t know what to do about pluralism, because the answer, it seems to me, will be very different coming from the Qur’an than from the Bhagavad Gita. (Et al., not just religious texts but religious traditions.)

Can, then, religion actually serve “as a formative anthropological influence” for articulating a basis of moral consensus in a pluralistic society, if that society is (as I think we are, by defending religious freedom) attempting to preserve the right to freedom that entails that very pluralism? Or are we restricted to reason and experience?