The BLOG: Faith and Law

The tragedy of religious liberty myopia

Earlier I commented on the recent ruling by a Massachusetts Superior Court coercing the Sisters of Saint Joseph, who run Fontbonne Academy, to hire a man who identifies another man as his husband. This action would contravene the Sisters’ well-formed conscience which, consistent with Roman Catholic teaching, biological facts, and millennia of practical wisdom, holds that a lifetime union between one man and one woman is a marriage, a unique human achievement and a foundational civic institution that conduces to the common good of all. In my earlier post, I noted that the essential reasoning in the judge’s decision amounts to special pleading, and the result constitutes discrimination against Roman Catholics.

On the NBP Opinion page, Andrew Beckwith noted another problematic feature of the decision. The court ruled that the Sisters do not qualify for religious liberty protection under the state non-discrimination law because they do not “limit membership, enrollment, admission or participation” to members of the Roman Catholic Church. So, the Sisters are denied legal protection because they open their doors to those who do not share their religious convictions. “Ironically,” Beckwith observes, “it is precisely this openness to diversity which the court said negates the school’s right to define school culture and control its faith-based mission.”

The court’s interpretation of Massachusetts law is consistent with a revisionism that one now hears frequently expressed by those on the Left. Cultural and political elites from the President to the media and the legal academy are redefining religious liberty as freedom of worship. The idea is that faithful people can remain free as long as they keep their religious exercise to themselves. The threshold across which they bring religious exercise into the public square in acts of service to others is the boundary of their liberty.

There are many problems with that view. Two deserve mention here. First, this revisionism subtly eliminates the legal security of religious exercise by transforming it from a right into a privilege. Rights are specified by some authority other than the state and its agent, the government. Rights come from God, or natural duties, or conscience, or ancient customs, or institutions of private ordering such as property. Many, though not all, rights are beyond the authority of the state and the government legitimately to alter. A state that tries to legalize slavery, for example, is acting contrary to law. That was a justification for the Thirteenth Amendment.

Privileges, by contrast, come from political powers. And what Leviathan giveth, Leviathan can take away. From the perspective of political powers who rule over us, privileges are not binding laws.

Second, this revisionism artificially severs the good work that religious people do in the public square (and religious people do a lot of really good work in the public square) from the theological and moral reasons for that work. Faithful people fight human trafficking and slavery, give and loan money for economic development, visit those in prison, and educate children in the inner city, many of whom are trapped in failing school districts, for the same reason that faithful people testify truthfully about the nature of marriage: They want to share the grace of God so that the lives of those around them will go well.

To ban the reasons for religious exercise is to jeopardize the fruits of religious exercise. Even if non-faithful people do not understand theistic faith, they should not want to drive it into the shadows.

Adam J. MacLeod

Adam J. MacLeod

Adam J. MacLeod is a member of the Maine and Massachusetts (inactive) bars and an Associate Professor at Faulkner University, Jones School of Law. He is the author of “Property and Practical Reason” (Cambridge University Press) and dozens of articles in journals in the United States, United Kingdom, and Australia, many of which can be accessed at his website.

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