Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding-era Americans thought when they incorporated the Free Exercise Clause of the First Amendment into the constitutional order they were creating. Contrary to the views taken by many judges and scholars, the Clause’s ideological background is best understood not in terms of either Enlightenment secularism or Christian Evangelicalism, but rather in terms of what the eighteenth century called natural religion. That view held that human beings were capable of using reason to discern the most basic principles of religion: that the world was created by God, that people ought to worship him, and that he has given them a law of nature that establishes their basic rights and duties in relation to one another. One of the most important rights was religious liberty: because religion was rooted in reason, individuals had a natural and inalienable right to form their own beliefs and to live and worship in accord with them. At the same time, that right was bounded by a duty to respect the inherent rights of other individuals as well as the legitimate authority of the state. In many ways, the eighteenth-century view was a humanistic one. At its core was a recognition of the inherent worth of human beings. This view held that individuals must be free to use their own minds in pursuit of truth, rather than having beliefs imposed upon them by religious or political authority. And it held that people with diverse beliefs were capable of living together in an open, self-governing society based on mutual acceptance and respect. These principles continue to be central to any adequate understanding of the Free Exercise Clause. Of course, we no longer live in the same intellectual world as the founders. In the wake of Darwinian evolutionary theory and other modern scientific developments, it is no longer widely accepted that reason alone can establish the existence of God or natural law. The question then arises whether it is possible to recast the eighteenth-century view in a way that retains its virtues without depending on controversial theological ideas or improperly favoring religious believers over others. In this Article, I begin to develop such a view, which I call liberal humanism. Like the classical theory, this view stresses the ideals of human freedom, equality, and dignity that informed the adoption of the First Amendment. But it seeks to broaden the classical theory in a way that reflects our contemporary understanding of those ideals. The Article begins by summarizing the classical view and showing how it was used by Thomas Jefferson, James Madison, and a broad coalition of groups as a rationale for protecting religious freedom, first at the state and then at the federal level. Next, I discuss how the idea of natural religion can be transformed by moving away from the eighteenth century’s ontological approach (an approach that held that reason could demonstrate the existence of God as well as the moral implications that flowed from it) and toward a more phenomenological view of religion, which focuses on the ways that human beings search for meaning and value in the world. People experience meaning and value in all areas of life, and they integrate those experiences into more comprehensive conceptions of the world and of their place within it. Some of these worldviews are religious ones which find ultimate meaning in a transcendent realm, while others are secular ones which find such meaning within this world. Both kinds of worldviews can be reasonable, and so both are entitled to respect. For these reasons, the Constitution should be interpreted to protect not only religious freedom but also a comparable right to form and live in accord with secular beliefs. Next, I show that just as the eighteenth-century view provided an account of natural rights, liberal humanism can provide an account of fundamental rights within our modern constitutional order. I then discuss the light that the liberal humanist view can shed on two important issues in contemporary free exercise jurisprudence: whether individuals are entitled to exemptions from laws that conflict with their conscientious beliefs, and if so, whether those exemptions may be granted only to those who hold religious rather than secular beliefs. The Article concludes with some brief reflections on how this approach can enable the secular and religious forces in our cultural battles to find some common ground.Download the article from SSRN at the link.
May 2, 2022
Heyman on Transforming Natural Religion: An Essay on Religious Liberty and the Constitution @SteveHeyman6 @BYULRev @ChicagoKentLaw
Steven J. Heyman, Chicago-Kent College of Law, is publishing Transforming Natural Religion: An Essay on Religious Liberty and the Constitution in volume 48 of the Brigham Young University Law Review (2023). Here is the abstract.