On March 9, as part of the Herbert W. Vaughan lecture series at Harvard Law School, a panel of experts discussed the role of religious liberty in modern American life. Professor Mary Ann Glendon moderated the event, which featured Yuval Levin, the founding editor of policy journal National Affairs, James Stoner, a political science professor at Louisiana State University, and Robert George ’81, who teaches politics and jurisprudence at Princeton University and is a visiting professor at HLS this spring.
Levin opened with the “confession” that he is not a lawyer. “In a sense, it’s as a non-lawyer that I want to speak to lawyers and prospective lawyers who are concerned about the question of religious liberty,” he said, because he wished to discuss the “limits of legalism” in defending religious liberty.
The need for religious liberty is more obvious than it has been in a long time, Levin said, as religious communities are “forced to confront tensions between their lives as American citizens and their commitments and obligations to their religious convictions.”
Levin warned that there are “risks” to religious liberty discussions, which “force us to understand the limits in our tradition and practice of religious liberty” and may require “unusual” uses of the concept.
“Our first instinct” in religious liberty controversies is to fall back on the Free Exercise Clause and create accommodations for people who find themselves facing impossible choices, Levin said. And in a sense the clause is meant to make sure “people are not required to make impossible choices between their roles as citizens, on the one hand, and their religious convictions and commitments on the other hand.”
But there are limits to the Free Exercise Clause because the logic behind it is a “highly individualistic” one, rooted in defense of “individual conscience.” In contrast, Levin sees today’s problems as “communal or, in the deepest sense, corporate.”
Levin referenced a James Madison quotation: “It is the duty of every man to render to the Creator such homage and such homily as he believes to be acceptable to him. This duty is both precedent in order of time and degree of obligation to the claims of civil society.”
Under Madison’s conception, Levin said, religious liberty “is not a freedom to do what you want; it’s a freedom to do what you must.”
“It describes a duty of society to retreat and gives its members space to act on what they deem essential,” he said. Levin also credited Madison with recognizing that at the core of religious liberty is “a freedom not to be coerced into doing what your religion prohibits you from doing.”
The Madisonian idea of religious liberty becomes particularly relevant in the same-sex marriage context because “some religiously orthodox wedding vendors are finding themselves effectively compelled by the civil authorities to affirm an answer to that question that violates their religious convictions on that subject,” Levin said.
“And some religious institutions, from universities to social service agencies to private companies owned by religious believers, are finding themselves forced to take part in the enactment and enforcement of a moral code that they are obliged to reject,” Levin continued. “They want to be relieved of that compulsion, and they’re being told they can’t be because the larger society’s understanding of the moral life should overrule theirs.”
“In a sense—in one sense—their experience is more like that of a religious minority in a society with an established church than it is like that of a religious minority simply being denied the right to exercise its religion,” he said.
Levin clarified that he was not arguing “liberalism or progressivism or whatever we want to call it is literally becoming a religion,” but he said “it is approaching the question of society’s moral order from the point of view of a dominant established power that expects to command assent to its views in the public square.”
The fact that “liberalism is not an actual religion means that the Establishment Clause is not going to serve us as a legal tool,” Levin acknowledged. Legal arguments must continue to be made through the Free Exercise Clause.
Still, Madison’s arguments against religious establishment can contribute to religious believers’ understanding of their situation by bringing “into sharper relief the distinction between individual and communal religious liberty,” he said.
“In calling for keeping our national life free from the overbearing power of one church, Madison was not suggesting that we should have zero but that we should have many,” Levin said.
Levin urged religious believers to “think communally” about religious liberty, because “what we have is a vision of the good that we think would be good for everyone, not just for ourselves.”
The religious community should focus more on “building what we have to offer than on defending the space for it,” he said. “Religious liberty allows us to defend that space, and it’s then up to us to fill that space with something that is meaningful to us and attractive to others.”
Princeton professor Robert George, who is teaching Virtue and Law at HLS this spring, credited John Henry Newman, a leading 19th century Catholic thinker, with articulating two competing views of religious liberty: the idea of “protecting conscience as a stern monitor” versus a “counterfeit” idea of “self will.”
Today, many people have adopted “what Newman called the counterfeit view” and would define conscience and religious liberty as “the right to do what you want, subject of course to the requirements of the public order,” George said. “In the contemporary debates, those requirements very often are viewed as overriding, without particularly strong reasons for overriding them. The kind of reasons that you might consider insufficient or inadequate if you held the contrary view that conscience is the right to do what you must.”
George said he would challenge people to consider re-conceptualizing religious liberty as “the right to do what you must, or what you judge you must do.”
“Most people subscribe to the social contract” idea of religious liberty, George said, but he would argue that “if that’s what it is, then it’s not a moral right” because “there’s no moral basis.” So, George said, he has been on a search for an alternative source of support for the right.
In George’s view, society would be best served by taking “a non-utilitarian approach that grounds the right to religious liberty in the good that it serves.” George explained that “good” in three parts.
First, religious liberty fosters “the good for each of us, every single one of us,” of “raising the existential questions of human existence, the questions of meaning and value,” George said. “Where do we come from, where are we going, what’s our nature, what’s our dignity, what’s our destiny?”
Second, religious liberty supports the honest effort to identify answers to those questions, George said.
Third, religious liberty allows people “to live with authenticity and integrity in view of one’s best judgment about those questions, in view of one’s answers. Whether one’s answers are, in the end, theistic, atheistic, pantheistic. Whether they are Christian or Jewish or Buddhist or Hindu or secularist,” he said.
“It’s that tripartite good that it seems to me the right to religious liberty respects,” George said. “We have the right because there is this very worthwhile thing. Worthwhile for all of us, and worthwhile for our community, and very worthwhile for our community to respect in all of us.”
George was followed by Louisiana State University political science professor James Stoner, who focused on “possible legislative action that can, if not solve, at least diffuse some of the controversies that now exist concerning religious liberty.”
“The legislative power in a democracy of course mediates between society and the law,” Stoner said. “It probably succeeds when there is a coalition of communities that works together, makes a deal. A deal that people can live with, even when—or precisely when—their principles are at odds.”
Stoner offered three examples of how legislation can further religious liberty.
First, he pointed to the First Amendment Defense Act, which was proposed in June 2015 “in anticipation of” the Obergefell decision legalizing same-sex marriage. Religious liberty advocates proposed the Act “in response to a question in oral argument” about whether, after the Court upheld same-sex marriage, “institutions that advocated the contrary would now lose their tax exemption.”
Second, Stoner said legislation could expand what he sees as an already existing distinction in the law between “serving all comers and providing a service for contract.” For instance, Stoner said, restaurants must serve anybody who walks in, but caterers may decide at their discretion whether to take certain jobs. Similarly, notaries and lawyers decide which clients to represent.
In his own job as a professor, Stoner said, he is obligated to teach any student who walks into his classroom “no matter how much ink or metal on their bodies is visible.” But when he is deciding whether to mentor an independent study student, he does not have to give a reason as to why he does or does not want to work with a student.
Third, Stoner suggested a “radical” and “complex” set of changes to marriage and parenting. Under his proposal, a state would define marriage simply as civil union. Marriage would then be recognized by the signing of a license and appointment to a registry of a time that the marriage would go into effect. At the same time, the rights and duties of parentage would inhere in the biological mother or biological father, and any other agreement would have to proceed through state instruments such as adoption.
“Whatever you think of these particular matters, isn’t there a role for legislation?” Stoner asked.
Legislation, Stoner said, can be helpful in “trying to settle some of the controversies, making the deals, in such a way as to not force the logic of religious liberty so that we’re faced with a tragic choice between the tradition of non-discrimination according to which our marketplace operates—and much of our society operates—on the one hand, and the deep religious convictions which are protected by the constitution and critical to the human being.”
Responding to the remarks by George and Stoner, Levin said he agreed that religious liberty should focus on finding accommodations. He urged a shift towards looking for “ways of living with difference, rather than ways of resolving differences based on the force of the majority of the moment.”
“I do agree that the way to do that is with legislation much more than through adjudication,” Levin said. “Ultimately, the way to do that is to work together to find an arrangement that, in an enduring way, can help people continue to disagree and live together as citizens.”
After the panel’s prepared remarks, Harvard Law School Dean Martha Minow asked several questions relating to the accommodations discussed by the panel.
“Where is the public/private line?” she asked. “Is the public/private line, or should it be, if the government is funding services that are provided by a pervasively religious organization? Has the public entered the private? Can the private say, ‘No, we still have our religious freedom?’ ”
“How about the tax exemption?” Minow continued. “Should we understand the tax exemption as, ‘Well, that’s just recognizing a preexisting private space,’ or is that a subsidy from the government?
“And of course,” Minow concluded, “a further extreme, is: how about simply the permission to practice your religion, and not be punished for it? Is that private, or is that public?”
The Vaughan panel was made possible through the “Herbert W. Vaughan Lecture and Academic Activities on America’s Founding Principles Fund,” endowed by the late Herbert Vaughan SB ’41 LLB ’48, to promote and advance understanding of the founding principles and core doctrines of American constitutionalism.
The Vaughan Lecture is given every other academic year. In years when the Vaughan Lecture is not given, the Fund supports academic activities sponsored or co-sponsored by Harvard’s Federalist Society Student Chapter for the same topics addressed in the Lectures. These may, among others, include federalism, executive leadership, judicial independence and power, religion in American public life, and other matters related to the Constitution of the United States and its implementation in American life.