Who does not believe in Freedom of, and Freedom from religion in our modern, liberal democratic societies?

In one way or another we are all children of the French Revolution and in many ways are fortunate to be such. But there are some dogmas of the secular liberal State inherited from the French Revolution which I would respectfully consider erroneous and which have unfortunately been internalized by religious communities.

What is the common “civic religion” which practically all of us, Europeans, believe in? Surely it is our belief in the indispensability of liberal democracy as the framework in which our public life should take place: free elections with a universal suffrage, protection of fundamental human rights and the rule of law constitute the “holy trinity” of this civic faith.

Freedom of religion may be found in every single European constitution. But it is commonly, a titre juste, understood to include freedom from religion as well.

Freedom from Religion, however, poses a challenge to liberal theory. We do not have a similar notion of, say, freedom from Socialism. Or freedom from Neo-liberalism. If a socialist government is democratically elected, we expect policies deriving from, and implementing, a socialist world view. And, willingly or not, we are expected to follow such. The same would be true for, say, a Neo-liberal government. But if a Christian government is elected, if we are serious about freedom from religion it is said, such a government would find its hands tied in attempting to legislate norms deriving from its religious world view.

Indeed, one of the greatest political theorists of the 20th Century, John Rawls, argued that our very democratic discourse, transcending Right and Left, must always be predicated on arguments derived from human reason the rules of which can be shared by all regardless of ideological commitment and thus be open to persuasion and change of opinion. Religion, he claimed (not disparagingly) is based on incommensurate and non-negotiable, self-referential, transcendental truths. And thus, unsuitable for the democratic arena.

We have thus two challenges at a core juncture of our multi-cultural society composed by secular and religious constituencies. First, how can liberal theory explain and justify freedom from religion? There are of course many attempts to rationalize such within a liberal framework. I find none of them particularly convincing. Ultimately, if a socialist is entitled to impose his or her world view on society, why should the same be denied to a Christian? And second, what is the claim of religious constituencies to participate in democratic life – as religious people – if, indeed the religious world view is (and it is) committed to non-negotiable, self-referential, transcendental truths?

In my view Pope Benedict XVI, following in the footsteps of St Jean Paul II, in his Regensburg, Munich and Bundestag lectures, has given the most convincing answers to these two challenges.

Benedict was shaped by and helped shape Vatican Council II. Alongside John Paul, Benedict was of the habit of claiming freedom of religion as the most fundamental of all freedoms. In our general secular culture this was typically received with a forgiving smile: ‘Which freedom would you expect a Pope to privilege?’ construing this statement in a corporatist sense, as if the Pope was some Trade Union leader concerned about his Members’ benefits. There is of course this aspect to religious freedom and there is nothing ignoble in the Shepherd watching out for his Flock.

What had not received nearly enough attention in all the brouhaha created by the comments of the Pope at Regensburg (referencing Islam), was the fact that the religious freedom the Pope was alluding to, included freedom from religion: the freedom to adhere to a religion of one’s choice or not to be religious at all. Benedict articulated forcefully and drew out explicitly that which was already part of Vatican II’s Dignitatis humanae (1965), was emphasized by John Paul II and is part of Pope Francis’ Magisterium too.

Nota bene. His justification and defense of freedom from religion was not an expression of, or concession to, liberal notions of tolerance and liberty. It was an expression of a profound religious proposition. «We impose our faith on no one. Such proselytism is contrary to Christianity. Faith can develop only in freedom» (Homily, Munich, 10 September 2006) the Pope lectured his own faithful and the world at large at Regensburg. Thus, at the core of Religious Freedom, as a religious proposition, is the freedom to say No to God!

That freedom must of course have an external dimension: the State must guarantee such, by law, to all its citizens. But, no less important, as I understood him, was the internal freedom. We, Jews, say: “All is in the hand of God except the fear of God”. That is how God wanted it – leaving us the choice. True religiosity, a true Yes to God can only come from a being who has the not only the external material condition, but also the internal spiritual ability to understand that the choice, the responsibility is ours, including that of rejecting the divine offer and saying No. John Paul in Redemptoris missio is equally explicit. The Church Proposes, She never Imposes.

Benedict made thus freedom from religion a theological proposition and to my mind this is if not the only, the most convincing argument for freedom from religion.

This, in turn, has a profound anthropological significance. Religious freedom goes to the deepest notion of the human being as an autonomous moral agent with the faculty of moral choice even in the face of his or her Creator. When Judaism and Christianity couch the relationship between God and man in covenantal terms, “old” and “new”, they celebrate that double sovereignty: the Sovereignty of the divine offer and the sovereignty of the individual to whom it is offered.

I think that everyone, religious and secular alike, can understand that if one were to accept the existence of an omnipotent Creator, to insist, as an intrinsic religious proposition, on the liberty to say No to such a Creator, this becomes fundamental to the very understanding of our human condition as Moral Agents – with choice and responsibility for such choices.

It is in this primordial sense that John Paul II and Benedict XVI argued for the primacy of religious freedom among all freedoms: it stands as proxy for the very ontology of the human condition. Of what it is to be human.

One can go perhaps one step further. Citing James, Benedict explains, in the Munich homilies (to which far too little attention has been given) that the “the royal law” the law of God’s kingship is also “the law of freedom.” This is puzzling: if, exercising such freedom, one accepts the transcendental Royal law, how can this constitute an actual enhancement of one’s freedom? Does not law, by its very nature, mean accepting restrictions on our freedom?

I understand Benedict as saying that by acting outside the constraints of God’s law, human freedom is illusory since one merely become a slave to one’s human condition, to human desires. To accept God’s law, as the ‘royal law,’ the law of He who transcends this world, is to assert my inner liberty vis-à-vis any one or thing which is of this world. In the words of St. Ambrose: «Quoam multos dominos habet qui unum refugerit!» There is no better antidote to totalitarianism in this world.

What then of the Rawlsian challenge? In my understanding of the Bundestag speech, Benedict did not reject the Rawlsian premise: the democratic discourse, the give-and-take of our public life, must be based on a shared understanding of reason which transcends ideological divides such as Left and Right in the same way that we all understand that two and two make four. Such a discourse cannot take place with an interlocutor whose positions are based on non-negotiable, self referential, transcendent truths.

Without mentioning him by name, Ratzinger challenged not Rawl’s premise but his flawed understanding of Christianity as misguided and mistaken.

When the Christian, Benedict argued, steps into the public space to make demands on public normativity which can be enforced by law, he or she do not make such demands based on revelation and predicated on faith or religion, although they may coincide with such. It is, as we have seen, part of Christian anthropology, that humans are endowed (by the creator) with the faculty of reason, common to humanity, which, indeed constitutes the legitimate language of general public normativity. The content of the Christian demand within the public sphere will thus be in the realm of practical reason – morality and ethics as often expressed through natural law. If I may give an example, when Cain murdered Abel, he did not turn around and say to the Lord: You never told me it was forbidden to murder. Neither does the reader of Scripture raise such an objection. It is understood that by virtue of their creation (for the religious, in the image of God) we all have the capacity to distinguish between right and wrong and do not require divine revelation for such.

This too, is not a concession to secularism. It is an inevitable result of the religious propositions which informed the Regensburg discourse. To adopt a publicly binding norm predicated exclusively on religious faith and revelation would violate precisely that profound, religiously based, commitment to religious freedom, whereby coerced faith is a contradiction and contrary to divine will.

It is, too, a courageous proposition. On the one hand it constitutes the entry visa of the Christian into the normative public square as an equal. At the same time it imposes a serious and severe discipline on the Christian community of faith. The strictures of reason might force one to revisit moral positions and to reverse previous norms. One no longer has that Joker in the Pack: “This is what God commanded”. That is not part of shared public reason. One might lose, reasonably, an argument rooted in reason. If one adopts a language, one has to speak it correctly to be understood, one must follow its inherent grammar if one is to be both understood and convincing. And that is true also for the language of Reason.

The Seduction of Natural Law

I want to explore now one fundamental implication of this understanding of freedom from religion in the European circumstance when Christianity as a practiced religion has become a minority. We are living in a Post Constantine Europe, something that remaining Christians have difficulty in internalizing.

As I noted above the Rawlsian fallacy was in his misunderstanding of Christianity. The Christian goes into the Public Square with a legitimate demand for using the power of the State and the Law to impose norms, only when such norms can be derived from universal reason/natural law and do not rely on revelation. A Christian may legitimately insist that the State criminalize murder not because this is to be found in the Ten Commandments revealed to Moses at Sinai, but because universal reason and natural law lead to the same result. Couching religious norms in the language of universal reason and natural law become thus, as noted above, the entry visa of the believer into the public square.

There is, thus, a huge temptation to couch as many religious norms in the language of reason and natural law and thus boldly assert such as general norms which should bind society as a whole.

I already noted above the courage of the Christian position accepting that only religious norms justifiable by reference to reason and natural law may be imposed on the public at large. I wish to elaborate here on some of the risks of overreach in yielding to this temptation. One should proceed with great caution. Getting it wrong, that is mischaracterizing a norm the authority of which derives exclusively from revelation as if it is part of universal reason, may have serious undesirable consequences. Some consequences are of a practical and prudential nature all the more relevant in a state of minorityship. They may be ineffective as well as harm the ability of religious communities to preserve their freedom of religion.

But no less important is the fact that such mischaracterization may lead one into serious religious error, imposing a religious norm on non-believers. «We impose our faith on no one. Such proselytism is contrary to Christianity. Faith can develop only in freedom» (Homily, Munich, 10 September 2006).

As regards the doubtful efficacy of overreach I can do no better than cite, once again, the wise reflections of Chantal Delsol in her John Paul II lecture.

«Christians try to defend their traditional moral values relying on non-Christian arguments: they know too well that their dogma would not be heard at all. They strategically argue from the perspective of nature, natural law or related reasons which are not necessarily less important…. Yet with no practical meaningful results ever. Our society is not concerned with natural law: people widely believe that rules of right and wrong are created by society, and are not intrinsic to human nature. They also question the relationship between politics, power and traditional religion».

One can go further. It is not just oftentimes ineffective for the reasons Delsol explains. It may be counterproductive. In the secular society in which we live in Europe (and the West more generally) minority religious communities struggle to preserve their religious norms even when these are countercultural. If norms of faith are couched in terms of general reason, and rightly or wrongly one loses the public debate – as has been increasingly the case -- it makes it more difficult to persuade general society – to make the switch and allow religious communities the autonomy to observe their religiously derived norms.

Let me give an example. Think of the Muslim and Jewish communities who insist on Halal and Kosher slaughtering. If they were to make the argument for this slaughter based on the proposition that in reason it is the most humane way of slaughtering (it was such for many centuries) – and then society found (rightly or wrongly, in present circumstances rightly) that it was not more humane, it would be much more difficult to sanction the practice than if they justified the practice ab initio, as part of their ritualistic and particularistic religious based normativity.

There is also a consideration which is relevant within the community of faith and not only vis-à-vis general secular society, a consideration which in my view is all the more poignant in the situation of minorityship.

Does, for example, a Catholic claim, as was the case, in say Italy not until too long ago, that the prohibition on Divorce derives from universal reason and is, as such, something which one should or at least may legitimately seek to impose on all, as indeed was the case in Italy well into the second half of the 20th Century. Or should the prohibition on Divorce be something about which one says that it is an internal norm, deriving from the text of scripture and reflecting the particularist logic of the Catholic sacrament of marriage but not opposable to the whole human community? If the latter is chosen it becomes an explicit identity marker, one of many, of what it means to be a Catholic. The fact that it is a norm that derives from revelation and is explicated within the Christian covenant, does not mean that it cannot and should not be part of a societal discourse on the meaning of marriage, conjugal love and commitment. It simply should not be presented as something that general reason would demand of everyone to follow.

When Catholic parents educate their children, do they say – Once married, no divorce because that is what marriage must mean to all men and woman? Or do they say – Once married, no divorce, because this is how we Catholics, following the teaching of our Lord and our Church understand marriage? The terse answer – We do this or do not do this because we are Catholic is not only an identitarian marker of great value in my Opinion. It is also a way, in the education of children to assert a special relationship with the divine: we do this or do not do this for the exclusive reason that the Lord has so commanded us. Following some transcendental truths which go beyond are human reason have a particular religious significance.

This question becomes a whole lot more delicate if posed in relation to the debates du jour regarding, say, homosexuality and same sex marriage. I certainly do not want to express an opinion on the substance of this debate save to say that as a matter of public reason, I believe there can be non-homophobic utilitarian arguments concerned with preserving the traditional understanding of marriage and the importance of traditional families which may explain opposition to same sex marriage. There are, too, valid arguments to extend ‘marriage for all’ rooted in very similar concerns, namely privileging the status of marriage.

But the sacramental logic of marriage, a holy union in the eyes of God, within religion generally and within the Judaeo-Christian tradition more specifically which restricts marriage in a whole variety of ways among which is the exclusion of same sex marriage, can be seen to follow an altogether non-utilitarian logic. Marriage on this understanding is to be viewed as holy sacrament. But this very vocabulary of sacrament and holiness are an indication that this is a norm which cannot and should not be imposed on non-believers.

But there is a third strand and it is the most controversial – which opposes same sex marriage not on utilitarian arguments, nor on the sacramental nature of marriage but argues from a position of universal reason and natural law.

The opposition to same sex marriage based on natural law does not derive from the ‘unethical’ dimension of same sex marriage, but from the contention that it is against the order of the world (and variants of this argument).

But with great respect to many natural law scholars, I never found this strand of the argument persuasive. Deriving normativity from the ‘nature of the world’ is to my mind deeply rooted in a religious world view: that our natural world had a Creator, the Holy One Blessed Be He and that in His creation of the world was embedded a Telos: it was created in the way it was with divine purpose. A teleological view of the natural world is, in my contention, inherently and quintessentially, religious. Take away the divine Creator and there is no reason that an atheist must see any normativity in the natural world. The Law of Gravity is not normative. It is causal and descriptive. When a child asks for the reason for a would be prohibition on same sex marriage, the only legitimate answer on this view would be that it so because it is against the will and design of the Almighty.

If there is any merit in this argument the consequences are clear. To impose such by law on non-believers would be religiously impermissible.

And, additionally, the prudential arguments mentioned above would also come into play. If the argument is couched in natural law terms, and, as an empirical matter, one is seen to lose the public debate when couched in universal reason, the internal authority of the norm within the community of faith is correspondingly weakened and the ability of the (minority) community of faith to seek respect for their counter culture position, would be more difficult to make that if, ab initio, it was presented as a religious norm to be respected under freedom of religion. Put differently, it becomes more difficult subsequently to claim a consciousness exception based on religion to a general norm. If the norm is presented as a matter of public reason and one loses that debate deliberatively and democratically, why should one be given an opt-out from the general norm? If it is presented as part of a religious logic and thus an expression of freedom of religion, the case is much stronger.