Saturday, February 21, 2015

More "Franckness" on Religion

More “Franckness” on Religion
P. Schultz
February 2015

            In another piece on Matthew J. Franck’s understanding of religious freedom, I wrote that his understanding of the “first things” was simplistic, perhaps even sloppy in that, by his understanding, important and genuine issues regarding modernity’s approach to the church and state issues or religion and politics issues simply disappeared or were made to seem unimportant. In this piece, I want to focus on some of the details of Franck’s argument, in particular his use of instances that he deems to illustrate how religious freedom is now what might be called “an endangered species” in the United States.

            First, let me say that I am skeptical of this rather commonly made argument about religion and religious freedom. From where I sit, I detect not only a wide spread embrace of religion, even something like another “great awakening,” but also wide areas where religion is all-too-evident in what has been dubbed “the public square.” So, my perspective on Franck’s arguments starts from a skepticism that his general point, viz., that religion and religious freedom are endangered by widespread attacks these days, is unpersuasive. Whether this starting point undermines my consideration of some of his arguments you will have to judge for yourselves.

            Now, here is the kind of thing Franck alleges endangers religious freedom, viz., that at the Hastings College of Law  “the student chapter of the Christian Legal Society was denied any status on campus because it would not abandon its requirement that members of the group commit themselves to traditional Christian norms regarding sexual morality.” And, moreover, “the U.S. Supreme Court…held that the student group’s rights were not violated a ‘take all comers’ policy.” [p.57]

            This is an interesting set of facts that raise some interesting questions. But to what extent these questions involve the freedom of religion is less than clear. I take Franck’s characterization of being “denied any status” to mean that this group was denied any official status by the college of law, that it was not an officially recognized student group. But how does this denial affect this group’s freedom of religion? They are still able to be “a group,” still able to deny membership to those who don’t or won’t share their adherence to “traditional Christian norms,” as Franck puts it. That is, what does the official recognition or the denial of official recognition by the college of law have to do with the freedom of this group to adhere to its religious beliefs? They have as much freedom as would a group of, say, white supremacists, denied, as I am sure they would be, “any status” by the college of law.

On another hand, the freedom of religion would be violated, clearly and indisputably, were the college to ban the students who belonged to the group from the law school, as that would be forcing students to choose between attending the law school and their beliefs. But it is less than clear that denying the group official recognition as a student group is an abridgement of the freedom of religion. Moreover, it seems pretty clear that such institutions need to be able to discriminate between those groups they officially recognize and those they do not recognize, a power that those who are allegedly conservatives often defend and especially defend against the demands of the federal government and its bureaucracies. Here, apparently, Franck thinks the Supreme Court should have protected what he labels “religious freedom” at the expense of such local or dispersed power. There should be, it would seem, a national standard that institutions like the Hastings College of Law should be held accountable to in the name of religious freedom.

By the by, one can wonder if such an arrangement is really the one Franck should be endorsing. National standards can cut both ways regarding the freedom of religion, as evidenced by the Supreme Court’s consistent holdings that such standards can and do trump claims based on religious beliefs in “cases of necessity,” that is, where the demands of our “modern secular state” are legitimate. [p. 69] That “the state should respect, honor, and even foster the role of religious communities and institutions as essential contributors to civil society” is not to say that the state, in any given set of circumstances, must bow before the claims made by religious communities and institutions. And, most importantly, it is the state that gets to decide, as the Supreme Court is part of our “state,” when it will “respect, honor, and…foster” such demands and when it will not. This is the meaning, bottom line, of “the separation of church and state.”

But this is precisely what Franck’s argument obfuscates, as becomes particularly clear in his treatment of what is labeled the “Hobby Lobby” case. This case involved the Hobby Lobby stores and its owners, committed Christians “who objected to providing four of the mandated [birth control] drugs and devices to their employees, against the dictates of their conscience as informed by their faith, because of their known effect as abortifacients.” [p. 62] Of course, the Supreme Court in this case sided with the owners of the Hobby Lobby stores, which kind of puts a dent in Franck’s argument that religious freedom is an endangered species in the United States. But Franck ignores this because the Court did not go far enough, as it did not, as did some Catholic bishops, embrace “a complete revocation of the mandate itself.” As a result of the Court’s decision, “the government is requiring all covered employers to be complicit in gravely wrong acts.” [p. 62] For Franck, “the one thing truly needful is to repeal the law, not to try to litigate a larger escape hatch from its terms.” [p. 63]

Franck is correct that from the perspective of the Catholic Church the law needs to be repealed and that exemptions do not deal with the issue appropriately. But this simply reflects Franck’s failure to understand the relationship between church and state, or religion and politics, in the modern dispensation. As noted above, the modern state should respect the rights of individuals to practice their religion, to believe what they want to believe, to practice their rituals as they see fit. But this is merely the beginning, not the end of the matter because it is up to the state to decide where such respect should be trumped by the demands of a modern secular society, as these demands are determined by the state. From this perspective, litigating for “larger escape hatch[es]” from laws that intrude on religious beliefs is appropriate, to say the least. Religion as such can make no demands on the state that it, the state, is duty bound to follow, embrace, or even leave unburdened its “traditional norms;” rather, religion as such can only claim that certain of its beliefs or practices should be exempt from any policies that intrude upon them insofar as the state sees this as fitting. In other words, in relation to Franck’s take on the Hobby Lobby case, the state might repeal “the mandate itself,” but there is no basis for arguing that this is required by the Constitution and its protection of religious freedom.

In sum, it is the state, not religion, which holds the trump cards in the modern dispensation. This is the meaning of “the separation of church and state.” The state may choose to extend to religion considerable protections. On the other hand, it may choose not to extend some protections to religious beliefs and practices. In the Hobby Lobby case, the Court sided with the religious; in the Hastings College of Law case, the Court sided with “the state,” as it were. There is nothing particularly troubling about this state of affairs and it is hardly cause for those who see the place of religion in “the public square” as endangered. We might even point out, ala’ Franck’s reference to Clint Eastwood’s “lecture” to an empty chair at the last Republican National Convention, that while there are empty chairs but there are also empty arguments. And even more troubling than empty chairs is when those who fill chairs, say the director’s chair of a learned institute, make empty arguments.

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