Matt Franck on “How to Think About Religious Freedom”
In publication entitle “Citizens and Statesmen: An Annual Review of Political Theory and Public Life,” published by the Center for Political Economic Thought, housed at Saint Vincent College, there appears an article entitled, “Individual, Community, and State: How to Think About Religious Freedom” by Matthew J. Franck, Director of William E. and Carol G. Simon Center on Religion and the Constitution. This article was written because, as apparently almost everybody knows, “religious freedom in our country has been under sustained pressures in recent years.”  And, according to Franck, this is due to the failure of our “modern secular state” to repair to “first things” regarding religion and its relationship to civil society.
One of the interesting, if puzzling aspects of this piece is that it nowhere references the Constitution and the first amendment while it does refer to and draw extensively on something entitled “Dignitatis Humanae, the ‘Declaration on Religious Freedom’ of the Second Vatican Council in 1965.”  This is puzzling, to say the least, insofar as the foundation of the first amendment and its protections of “the freedom of religion” and its prohibition of any “establishment of religion” lies in a political philosophy, early modern political philosophy, that, as most recognize, informed the Enlightenment, which was, at the very least, skeptical of bona fides of revealed religion. And this has led to the argument that what is labeled “the separation of church and state,” which seems called for by early modern political philosophy, was adopted in order to subordinate religion to the state, rather than seeing the state as the handmaiden of religion. In other words, by drawing on the Catholic Church’s “Declaration on Religious Freedom,” while also using James Madison’s “Memorial and Remonstrance Against Religious Assessments,” Franck’s article obscures rather than clarifies the controversial character – from the point of view of revealed religion – of the first amendment to the Constitution, as well as of “the separation of church and state.”
So, as a result of this obfuscation, Frank’s argument that the falling away from “first things” by our “modern secular society” regarding religion and its place in civil society seems quite logical. But in fact, it is only simplistic, and perhaps even sloppy. Aspects of the debate over religion and its relation to civil society are glided over as it they were not important, or perhaps not even issues. For example, Franck asserts more than once, quoting Madison, that “religion is exempt from the authority the Society at large,” [66, 67] and yet also says, but just in passing, that “This is not to say that the state may never inquire into whether a claim of religious conviction is sincerely held” nor “must the state entirely yield to every sincerely presented claim.” [68-69]
One would never know it from Franck’s piece but these are among the most important issues regarding the separation of church and state. Consider what it means to say, as Franck does here, that the state has the right to inquire into, that is, to determine whether a belief is a sincerely held religious belief. Such determinations would involve, and have involved in actual cases, inquiries into and determinations of what constitute or what could constitute religious beliefs, that is, what religious beliefs are legitimate and what are not. Hence, the Supreme Court has held that drug laws may trump the beliefs of some Native American tribes who use proscribed drugs as part of their rituals. Would the Court find that the law could also proscribe the practice of the Catholic Church of allowing under age persons to drink alcohol? It seems doubtful and some of this doubt rests on the perception that Christian rituals are really religious while those of Native Americans are not. But however these questions are decided, just the legitimacy of the state deciding what are and what are not “sincerely held” religious beliefs illustrates the controversial character of the modern endorsement of the separation of church and state.
Moreover, Franck knows enough constitutional law and modern political philosophy to know the state need not “yield to every sincerely presented” religious belief. But again, to recognize this in passing, as he does, obscures the controversies that lie at the heart of the modern conceptions of the proper relationship between church and state or between religion and politics. Surely, Franck knows that the status of being a conscientious objector in the United States rests on statutory law, not constitutional law. There is no recognized constitutional right, not even one based on a sincerely held religious belief, that allows one to refuse, legally refuse, to serve in the military. And surely he knows as well that there is no constitutionally protected right of parents to deny medical treatment to their own children if such treatment is necessary to save the child’s life. The Supreme Court has even held that child labor laws can be used to trump religious beliefs, even sincerely held religious beliefs. And the Court has also held that sincerely held religious beliefs that conflict with important public policy objectives do not protect private educational institutions from losing their tax exempt status, ala’ Bob Jones University which was forced to abandon its policy against interracial dating if it wanted to keep its tax exemption.
All of these controversies, which are not easily decided, which are genuine controversies, disappear from view in Franck’s article and in his understanding of “first things.” For Franck, apparently, the world is or could be a genuinely harmonious place, with religion and civil societies coexisting peacefully and amiably, if only James Madison and the Second Vatican council were wedded together. Ah, but there’s the rub. It is difficult for me to conceive of the legitimacy of such a union, as difficult perhaps as it for some to conceive of the legitimacy of what are called today “same-sex marriages.”