Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, March 28, 2019

Garnett on "Equitable Establishments"

I'm pleased to return, in the latest issue of First Things, to a subject that is dear to my heart, i.e., the statue of "Big Mountain Jesus" at Whitefish Ski Resort in northern Montana.  My paper, "Equitable Establishments", is also available on SSRN for download.  Here is the abstract:

This paper, which was prepared for discussion at the May 2018 Dulles Colloquium, convened by the Institute for Public Life, engages current discussions and debates regarding the nature of “liberalism” and the content of “religious freedom.” It considers, specifically, whether a “liberal" political community may and/or should recognize or establish a religion, drawing on the Second Vatican Council's “Declaration on Religious Freedom.” And, it addresses the controversy surrounding “Big Mountain Jesus.”

And, here's a quote:

First, it is not the case that political morality necessarily requires that societies—or political authorities or states—be liberal, or liberal in the same way. There have been, are, and will be some political communities that probably don’t count as liberal but still protect the well-being of persons, promote their flourishing, and observe the constraints that political morality imposes. To ask, then, whether a liberal society can favor one religion over the others is not simply to ask whether political morality permits (or requires) such favoring. I am inclined to think that at least some of the various features of liberal regimes and societies are morally required, but again, perhaps not all are.

Next, there is the related point that not every institution, association, or enterprise within a liberal society—or, that is governed by a liberal political authority—needs to be liberal. Quite the contrary: The political authority in a liberal society must not only tolerate, but also affirm and support natural and social elements that are themselves not liberal. The ontology of a liberal society need not be liberal “all the way down.” And so, whatever the answer is to the question whether a liberal order can prefer one religion over the others, it should be clear that such an order can, does, and should include societies that can, do, and should.

Third, it should be acknowledged that some ostensibly liberal societies and regimes do favor one religion over others: namely, a religion of liberalism. Indeed, to use the word “favor” might be to put things too delicately or to undersell the enterprise of muscular, evangelizing, “progressive” liberalism. While litigants have attempted and failed to convince American judges to label the secular humanism proposed (or imposed) in public schools as a religion, it does seem right to say that, at least in some of its manifestations, “liberalism has a sacramental character.”

Feedback is welcome!  Thanks to the First Things team for including me in the magazine.


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