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 26, 2020

"Religious Liberty and the Common Good"

In National Affairs, William Haun has a worth-reading essay called "Religious Liberty and the Common Good."  He opens with this:

Legal and cultural debates involving religious liberty are converging toward a single question: whether free religious exercise is part of the common good, or what might now be called a society's overall well-being. While Americans have long debated how religious exercise should manifest in the public square, the need for a common good shaped by religious practice went unquestioned. But this has changed over the last generation. Now, American law and culture are questioning whether such debates are worthwhile.

My agreement with much of Haun's essay is, I suppose, overdetermined:  Tocqueville and Burke citations, the happy-warrior spirit of the Becket Fund, etc.  My take on the Smith decision, which Haun criticizes, is different -- not entirely, not the opposite, but different -- from his, though.  Among other things, Haun writes:

The Smith decision presumes a deep tension between religious exercise and the common good. . . .  For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude. 

This does not seem right to me.  Every (plausible) account of religious freedom imposes some limits on religious exercise.  The Second Vatican Council's Declaration on Religious Freedom -- the inspiration, in many ways, for the founding of the Becket Fund! -- refers several times to the "just demands of the public order" and assumes that these demands are among the conditions for flourishing that constitute the "common good" of a community.  To say (as the Smith decision does) that our particular Constitution did not allocate to judges the authority to revise politically accountable actors' determinations about what those demands are is not, it seems to me, either to make an idol (as opposed to a mechanism) of "majoritarianism" nor is it presume a "deep tension" -- as opposed to "the unavoidable occurence of occasional line-drawing exercises" -- between religious exercise and the common good.

In addition, it's not obvious that "religious pluralism" (by which Haun means, if I read correctly, the diversity in our society of religious views and commitments) is "good" so much as it is given, and its manifestations protected (not without limit, again) by our commitment to religious freedom, which is grounded in human dignity.  The extent to which manifestations of this pluralism may or should be regulated, or subordinated to the "just demands of public order" is a question that has to be answered by someone, and it does not seem to me that the Smith resolution of this matter is best interpreted as denying the importance -- the goodness -- of religion.


Garnett, Rick | Permalink