Why Religious Liberty Became

Controversial: The Left and JeanJacques Rousseau

by William Haun
within American Founding, Conscience Protection, Religion and the Public Square

June 19th, 2013

The Left is adopting a Rousseauian view of religions role in public life: the
state is to determine where, when, and how religious instruction should be
permissible for citizens.
In the words of Harvard Law Professor Mary Ann Glendon, until recently
the status of religious liberty as one of the most fundamental rights of
Americans has seldom been seriously challenged. This is understandable.
After all, proponents of religious liberty simply ask the right to have and
exercise their beliefs; they dont ask others to approve of them.
This live and let live sensibility made it easy for both Democrats and
Republicans to pass the Religious Freedom Restoration Act (RFRA) in
1993. RFRA is the basis for many religious freedom lawsuits against the
federal government, including the challenges to the HHS mandate, and it is
the framework adopted by many states in their own religious liberty laws.
RFRA passed in the Senate 97-3, unanimously in the House, and received a
swift signature from President Bill Clinton.
Yet twenty years later, religious liberty claims brought in RFRAs name are
criticized by many on the Left as smokescreens to advance a distinctly
conservative agenda.
Understanding why religious liberty became politically controversial
requires more than just identifying the political fault lines. The underlying
problem is our societys movement toward a Rousseauian, and away from
an authentically American, conception of religions role in public life. While
our founders greatly valued religion as a public instructor of virtue,
Rousseau thought that religions should only have educational power in

spheres not relevant to society at large, and further that the state should
determine those precise boundaries. The Left has progressed quite far along
this track, and its members can hardly be expected to protect religious
liberty unless they relearn its value for any free society.
The Lefts Qualified Value for Religious Freedom
The Lefts post-RFRA efforts to expand the meaning of civil rightsin
particular, to prioritize lifestyle rights, and public validation of them, over
traditional civil libertieshave changed its tune toward religious freedom.
In March, Dr. Jay Michaelson of Political Research Associates released a
report titled Redefining Religious Liberty: The Covert Campaign Against
Civil Rights. Michaelson argues that conservative Christians co-opted
genuine religious liberty into the freedom to discriminate and harm
others. He compares religiously based exemptions from laws redefining
marriage to racist efforts to thwart civil rights. Former NAACP president
Julian Bond argued the same in a June op-ed.
Indeed, many Leftist organizations and individuals have echoed this thesis,
including the American Civil Liberties Union, the Center for American
Progress, and noted professors such as Michael Kent Curtis.
Richard T. Foltin, a member of the American Bar Associations governing
council on individual rights, explains that RFRAs breadth of religious
liberty protection (reflected too in state laws designed to mirror RFRA
locally) was invoked against a signal achievement of the civil rights
community, preventing landowners from refusing to rent property on the
basis of marital status.
The landowners religious liberty claims, made in the context of renting
property to unmarried couples, had mixed success in court. Yet Foltin
argues, it quickly became evident [to progressives] that these cases had
implications for cases in which landlords might want to refuse to rent to
same-sex couples.
This conditional view of religious liberty began to break down other efforts
to protect religious freedom in law. University of Virginia law professor
Doug Laycock has noted that in 1999 this civil rights exception caused
controversy when Congress debated adopting the Religious Liberty
Protection Act (RLPA). Liberals argued that religious liberty claims

shouldnt trump discrimination lawsuits on matters of sex, employment,

and even ordination. With these controversies, RLPA and other broad
religious freedom legislation became flashpoints.
These developments show when, where, and how the Left-Right fault line
over religious liberty and civil rights took shapebut they dont
explain whythe rift took this particular shape. To answer that question we
need to consider how a liberal society creates the well-formed citizenry
necessary to preserve liberalism.
The Founders and Rousseau on Religion in Public Life
The founders saw Americas religious vibrancy and diversity as essential
or as George Washington said in his Farewell Address, an indispensable
supportfor civic formation. While this view rejected the idea of an
established national church, it allowed religion to flourish through debate
and diversityakin to James Madisons description in Federalist 10 of the
flourishing of republican government through diverse political interests
and offered a basic rationale for individual freedom: the soul needs to
remain sovereign.
Madison noted this in his Memorial and Remonstrance, confirming that
every man has a duty . . . to render to the Creator such homage, and such
only, as he believes to be acceptable to him . . . This duty is precedent both
in order of time and degree of obligation, to the claims of Civil Society.
This dutys natural check on state power makes other limits follow, which
protect freedom of conscience from legal coercion while encouraging virtue
through vibrant religiosity.
Implicit in this view of religions role in civic life is not only a broad terrain
for conscience, but also restraint on the governments role. Only a
government that refrains from dominating the usual spheres of moral and
religious developmentthe family, the church, the school, and civic
associationscan reasonably encourage growth in virtue through religious
practice and defer to conscientious objections. Madison could hardly claim
that the duties of conscience are precedent both in order of time and
degree of obligation to ones duties to the state if he agreed with
the sentiment of House Minority Leader Nancy Pelosi that one just do[es]
religion on Sundays, in church.

Unsurprisingly then, as the governments power grows in the areas

reserved for citizen-formation, it begins to supplant religion in that role.
This diminished place for religion as a civic teacher leaves room only for
religious believers that fit the states view of virtue, while rendering
dissenters an annoyance to be placated at best, and a hostile force to be
marginalized at worst.
The philosopher Jean-Jacques Rousseau, whose work heavily influenced a
separate experiment in liberalism, the French Revolution, thought that the
state should determine religions educational role. In his famous work, The
Social Contract, Rousseau argues that the division between the Master of
conscience and the masters of the state justifies limiting religions
educational power to matters of little or no concern to the community.
Where the community is concerned, however, there will be a civic religion
with the goal of binding the hearts of citizens to the State. Citizens can
maintain purely private religious opinions on matters unimportant for
societal order, but to Rousseau, the Sovereign is sole judge of what is
important. Dissent from the states goals cannot be tolerated.
The Lefts Rousseauian Tendencies
From Rousseaus perspective the government can more easily disregard
religious objectors. If one argues, as Planned Parenthood president Cecile
Richards did in February 2012, that birth control is basic health care and
women should have access to birth control, no matter where they work,
then why tolerate dissent from that? Rousseau would not, and neither did
Richards, saying it was wrong for the Obama administration even to
exempt houses of worship from this requirement.
The same logic appears in Julian Bonds argument, which concludes that
religious belief cannot be a license to discriminate; the state has the
power both to define and to police the line between legitimate religious
belief and impermissible discrimination. One might say that the
state locuta est, causa finita est.
Clearly the Obama administration, Bond, Michaelson, and others are not so
Rousseauian as to rule out the idea of any religiously based exemption from
generally applicable laws. But by embracing an expanded role for the
government in the areas of life that impact how citizens form and manifest
their beliefs, the government becomes a Rousseauian arbiter of opinions on

the matters it touches. The result is a purely pragmatic view of religious

accommodation.
This view doesnt embrace accommodation out of respect for religions role
in citizen-formation. Rather, accommodation is used to reassure ones soft
political supporters that no harm will come to religious dissenters who are
too divorced from societys new consensus to be a real threat anyway. HHS
mandate opponents wont be apprehended, for example; they will simply be
fined.
Like Rousseaus view, however, the pragmatic view reluctantly embraces
accommodation in areas where the space between authority of conscience
and authority of government regulation seems bigger. So, as Michaelsons
report explains, while a church may not be expected to perform a same-sex
marriage, a religious individual running a photography business may face
fines for being unwilling to photograph one. This approach is different only
in degree, not in kind, from what Rousseau argued.
There is no doubt, as Bond, Michaelson and others argue, that racists
invoked religion to defend slavery and racial segregation. But there is
equally no doubt, as historical figures from Abraham Lincoln to Martin
Luther King, Jr., demonstrate, that abolitionists and anti-segregationists
relied on a religious understanding of civic virtue and human dignity to
fight the government institutions of slavery and Jim Crow laws. In fact,
many ardent abolitionists found that their root problem with slavery came
from their religious formationthanks in part to religious groups like the
Quakers resisting the governments view of justice.
The Left should embrace the founders appreciation for religion in public
life, which would allow religions to refine their understanding of the truth
through vibrant public discourse. Doing so would require greater respect
for conscience and for dissent from laws that are perceived as unjust.
Through debate and time, wisdom is revealed.
Keeping religion vibrant in public life, as Justice Elena Kagan has noted,
crafts a critical buffer against state power. This often serves as a shield

against oppressive civil laws, and a rationale to reform them. The

Rousseauian society, in contrast, is left with the mere hope that the law
always teaches toward true justice, because accommodating any type of
religious-based dissent is an unacceptable compromise.
Giving the state power to decide which lifestyles every person must validate
is incompatible with respecting human dignity because it infringes on the
very type of citizen-formation left to the individual conscience.
Conclusion: The Left Needs to Relearn the Value of Religious
Freedom
A free society consistently debates how to harmonize government
protection of individual rights with educating citizens about liberty. Our
disagreement over the value of religious liberty has arisen largely because
in our society, government ever more conflates itself with community.
As long as some groups continue to appeal to government for public
validation of their lifestyle, and as long as people are taught that religion is
merely something one does on Sunday, in church, the less surprising it is
that the Left, and Americans more broadly, are losing an appreciation for
religious freedom. We can hope that the true freedom provided by a society
where civic formation can occur without outsourcing nearly all questions of
right and wrong to the states discretion will reveal itself. Our generation
seems increasingly unaware of it.
William J. Haun, Esq., writes from Chevy Chase, Maryland.
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