That is, if freedom of religion is under attack, don’t you have to define religion? Hunter Baker seems to have an expansive view of faith:
Big Business is a serious problem for religious liberty. Few people adequately understand that Big Business and Big Government go hand in hand. Corporations don’t like localism and various exemptions aimed at respecting rights of faith and conscience. They just want a monolith that they can understand and work with in a turnkey fashion. I have no interest in being the corporate candidate. The business executives of the world need to understand that when they undermine our liberty as people of faith, they are ultimately undermining liberty of all types, including economic liberty. I will fight for the soul of the party on this issue, just as many have bravely fought to keep the party pro-life.
But what if religion is not everything I do, but certain practices and convictions I share with those in my communion? And here’s where I make a shameless self plug:
The difficulty here—and liberal society is by no means consistent about this—is that religion has shifted, in the American experience, from a corporate identity to a personal quest for meaning. Rather than faith being part of belonging to a religious institution and so including certain doctrinal convictions (belief in one God) and behavioral obligations (refraining from employment on Sunday), the courts’ understanding of religion leans heavily on notions of conscience (even Madison illustrates this). As such, religion is a deeply personal matter and the state should stay out of such private arenas.
Professor Bradley’s attempt to define religion very much follows in this trajectory, and she devotes several paragraphs to questions of conscience. The high stakes of individual conscience are not simply the products of the courts or the academy. Many Christians themselves also regard religion as a deeply personal matter. The revivals of the First Great Awakening during the 1740s promoted the importance of religious experience in ways that made church membership and corporate rites far less important for being truly religious. At the same time, the religious Right for the last three decades or so has taken a page from black, gay, and feminist political activists by arguing that faith is so comprehensive in its claims on the believer that he or she can never leave faith behind when entering the public square.
This notion of faith as deeply personal, rather than corporate or institutional, raises a great problem for liberal society. If faith informs everything I do, then paying taxes or baking a cake or sending my children to a public school may violate my conscience. And if a majority of the citizens have such sensitive consciences, conducting the affairs of government may become impossible. To be sure, the mainstream Progressive narrative of U.S. history includes instances where heroic stands for conscience based on faith—the Civil Rights movement—emerged as valuable contributions to a free society. By the same token, while many times religion coincided with the advancement of certain liberal goals, it has also motivated believers to protest existing norms and so has divided society along religious lines.
To illustrate the difference between religion personally conceived and corporately conceived, consider the membership vows required by my own denomination, the Orthodox Presbyterian Church. After being examined by a local congregation’s officers, a person needs to answer in the affirmative the following five questions:
Do you believe the Bible, consisting of the Old and New Testaments, to be the Word of God, and its doctrine of salvation to be the perfect and only true doctrine of salvation?
Do you believe in one living and true God, in whom eternally there are three distinct persons—God the Father, God the Son, and God the Holy Spirit—who are the same in being and equal in power and glory, and that Jesus Christ is God the Son, come in the flesh?
Do you confess that because of your sinfulness you abhor and humble yourself before God, that you repent of your sin, and that you trust for salvation not in yourself but in Jesus Christ alone?
Do you acknowledge Jesus Christ as your sovereign Lord, and do you promise that, in reliance on the grace of God, you will serve him with all that is in you, forsake the world, resist the devil, put to death your sinful deeds and desires, and lead a godly life?
Do you promise to participate faithfully in this church’s worship and service, to submit in the Lord to its government, and to heed its discipline, even in case you should be found delinquent in doctrine or life?
For this particular denomination, these are the chief parts of being a Christian. None of these questions pertains directly to business transactions, curricular matters, or medical procedures. Of course, the person who takes these vows might have firm convictions about how she should run her business, what school her children should attend, or what procedures hospitals should provide. Given that these other matters are incidental to requirements for institutional membership, our Orthodox Presbyterian should perhaps be less likely to invoke freedom of conscience if she ends up disagreeing with the decisions of local, state, or federal authorities about them. She might simply regard the friction that comes with a free and diverse society as the cost of doing business.
Part of the problem here may involve the old Burkean point about the value of mediating institutions. Those agencies of civil society that buffer persons from government can potentially pose challenges to the smooth operation of a state, but they also perform any number of services that add up to a society comprised of persons who place few, or at least fewer, demands on governmental agencies. Over the course of the 20th century, as the federal government’s power expanded, many institutions of civil society lost power even as the liberty of individuals increased. That process is no less evident in American religion, though the state’s hand in the loss of religious institutions’ power has not been as noticeable as it has in family life or educational or private associations.
Even so, the value of churches and synagogues in identifying and defining religion—as opposed to leaving it to individual conscience—may clear a path through the current debates that surround religious freedom and governmental protection of faith. If the state protected corporate expressions of religion more than personal ones, negotiating the interests of government and religion would likely be less litigious than it is now. To be sure, many Americans would object to legal or policy patterns that granted to pastors, priests, and rabbis greater authority in resolving matters of conscience. But without some mediating institution to inform and guide religious life, believers may be inclined to see religious liberty narrowly if only because they seemingly lack non-state institutions for resolving cases of conscience.
If the choice were between religious institutions or potentially outraged believers, the state might prefer to negotiate with churches and synagogues instead of with persons with easily offended consciences.