Abstract: How did we arrive at this point in our thinking about religious freedom? Why are our public debates on such topics so rarely fruitful and so often hostile, especially in a time of pandemic? I will tell a crucial chapter of that history. Seventeenth-century Europe was an age of epidemics and religiously-based persecution, yet the century closed with important steps toward a more tolerant society. The English philosopher and theologian, John Locke, started his career opposing any religious freedom. Tracing how and why he changed his mind can explain some of the limits to our thinking nowadays, and why our public debates are not more fruitful. I will analyse several claims of religious exemptions to COVID-era rules, in keeping with Locke’s model, since two of his own examples concern an epidemic.
Keywords: John Locke, COVID-19 epidemic, vaccine, natural law, conscience, rights
Thanks to D.T. Everhart and Micah Perry for invaluable research assistance.
I understand the overall project of the Laboratory of Religious Freedom to be the study and prevention of religious discrimination and violations of conscience. This volume, in particular, focuses on such things as conscientious objection in medicine and blasphemy laws in art. Given the timing, Covid-19 became an understandable case study, as we have before us an event of global importance that brings together many of these concerns.
The aim of this essay, therefore, is to tell a story of how we arrive at this point in our thinking about religious freedom, told from a theological and political perspective. The reason I chose this approach is not only because Christian moral theology is the field I study, but also because I want to prevent possible missteps that I have seen among Christian supporters of religious freedom. There are, to my mind, three very good reasons for thinking that learning “how we got here” would help us understand our current conversations surrounding religious freedom.
Reason one: our current moment in this debate is not as simple as religious believers, on one team, versus secularists on the other. As counterintuitive as this may seem, Christians have good reason to oppose some conscientious claims, even when made by their fellow Christians. This is because some strategies one might pursue to enhance religious freedom may have the opposite effect in the long run, given the discourse we use to talk about the topic. Put another way, if you hope to enhance Christians’ rights of conscience, in those terms, you could shoot yourself in the foot, depending on what others have in mind by “rights” and “conscience.” Do, for instance, Thomas Jefferson, Dignitatis humanae, the U.N. Declaration, John Rawls, the Catechism of the Catholic Church, and Boris Johnson all mean the same thing by the concept of religious freedom? It is demonstrably the case that they do not. Understanding the road to our current conversations surrounding religious freedom can help us pick apart the different perspectives and nuances of the discussion.
Reason two: some strategies available to us today have been tried before. In fact, many of these have backfired, creating the conditions for our current situation. We could label this point: “it’s not a bug, it’s a feature.” The notorious difficulty of weighing competing rights claims is like this. In the early days of modern religious freedom, rights were supposed to be absolute. So, the lack of balancing competing claims was a feature, not a bug.
The third and final reason that learning “how we got here” could help our current understanding of religious freedom debates is that Christians in particular seem to forget that religious freedom was almost universally opposed by Christians until recently. The only exceptions were liberal Protestants. So, how did Christians become supporters of religious freedom? Something has changed. It is worth reminding ourselves how Christians could have idiosyncratic ways of conceiving of conscience and their own the reasons in favour of religious freedom.
I begin with three stories from the coronavirus-era. I relate them here only to give us a sense of the sort of dilemmas we face today. The first is more of a question for us to keep in mind than a story. Last month, I attended a church service in Paris. As you may know, one of the ways that French president Emmanuel Macron boosted vaccine uptake was a rule targeting something that the French love. If you want to eat out in France, even to sit outside to smoke at a café, you must show proof of vaccination. However, you don’t have to show such proof to go grocery shopping. While we might think this fair given the necessity of groceries as opposed to smoking in cafés and eating in restaurants, the difference in the treatment of these activities raises certain question. Namely, given those two categories—restaurants where proof is required or supermarkets where it’s not—which best fits church services? While I was not asked for proof at prayers in Sacré-Coeur last month, how should we think about and categorize religious services?
Second story: a student at St Andrews told me about his sister, who is an Intensive Care nurse in California. She had a patient in her unit, seriously ill from Covid-19, who was not vaccinated because God told him—the patient—not to be vaccinated. The nurse complained to the patient, pointing out that he was taking a bed from a child and, if he had been vaccinated, most likely would not even be in the hospital, much less need intensive care. Meanwhile, the child, who also needed intensive care, had to wait on the standard paediatric ward. After 13 days, the patient left the hospital, but still refused the vaccine.
Third story: my colleagues in the Society of Christian Ethics inform me that there is a template circulating online, the point of which is to make it easy for Christians to opt out of workplace vaccine mandates. Some of these templates are specifically written for Roman Catholics, and have even been supported by some bishops.
As my title implies my goal here is to tell a selective episode from the history of debates surrounding religious freedom. Why have we arrived precisely here in our collective thinking about these topics? Here is how I aim to get to an answer. After a brief introduction, I will focus on the English philosopher and theologian, John Locke. Not because he was the only voice for toleration of his day or even the most important. Instead, what sets Locke apart is that he changed his mind on the question of religious toleration. He originally opposed any religious freedom but ended up making key steps towards the kind of religious freedom that we enjoy today. Nowadays, changing our minds is out of fashion, so his example could be worth heeding for that reason alone.
Prior to the sixteenth century, Christians thought of ethics and politics teleologically. That is, if you want to know whether something is good, you need to know what it is for. Is that a good beer? It depends on what beer is for. Is he a good goalkeeper? It depends on what goalkeepers are for. Same for judging good marriages, good armies, good priests, good laws, and good princes and queens. Add these together—if you had a good marriage, were served by a good priest, lived under a good ruler, and had plenty of good beer—you would tend to be happy. You could hope to achieve the summum bonum of humans. Why did the universe work so neatly? Because God created the universe for, among other purposes, human happiness.
This didn’t mean that Christians everywhere agreed. Returning to the marriage example, how many wives makes a good marriage? One or more than one? Is Trappist beer better than other beers? People disagreed, but they tended to disagree within this teleological framework.
However, three very important developments changed this conversation in key ways. The Protestant Reformation, The Thirty Years’ War, and the diaries of global explorers conspired together to suggest that people are made happy by different things. Different systems of law seemed to work for different territories, and people seemed to be more or less happy. Some people—Protestants—allowed their priests to marry, and that worked for them. Some indigenous people of South America, European explorers reported, practiced euthanasia in times of famine, and that seemed to work for them.
No one put the consequences of this in a more clever and pithy way than John Locke. He was not always the best writer, so this passage stands out:
The mind has a different relish, as well as the palate; and you will as fruitlessly endeavor to delight all men with riches or glory as you would to satisfy all men’s hunger with cheese or lobsters; though very agreeable and delicious fare to some, are to others extremely nauseous and offensive. Hence it was, I think, that the philosophers of old did in vain inquire, whether summum bonum consisted in riches, or bodily delights, or virtue, or contemplation: they might have as reasonably disputed, whether the best relish were to be found in apples, plums, or nuts, and have divided themselves into sects upon it. (Locke, 1975, 2:21.56)
He is here mocking the splintering Christian denominations of his time, as well as the philosophical schools of ancient Greece and Rome, by comparing them to Fruit and Nut Fan Clubs. At first glance, it might appear that Locke is endorsing moral relativism: “Some people like kindness, others like lobster, but who’s to say which is right? It’s all a matter of taste.” But Locke is no relativist, and so his point here is a narrower one. Because happiness is itself a matter of taste, and taste is arbitrary, then it cannot be equated with moral rightness.
One way of telling the story of political and moral theology’s fate in modernity is as a series of, mostly unsuccessful, attempts to preserve Christian natural law in the face of this challenge. However, the lesson for us given our topic is: if purpose-based or teleological thinking is broken—conceding this is Locke’s point—we need some sure and certain way to navigate disagreement. Notice what Locke doesn’t consider: preserving some modified version of Christian natural law that replies in a measured way to some of its challenges. But he does not consider that option. Nor, for the record, did Kant and Mill, the other two-thirds of the modern ethics boy band.
As a Christian (of sorts), Locke could have responded to the challenge in any number of ways. The mere fact that some people like cheese and others prefer lobster doesn’t entail that all tastes are arbitrary. Sure, cheese and lobster could be fine for some, but no one enjoys eating dirt or rocks. If they do, this is typically taken to be a sign of illness. But this was not how Locke responded to this challenge, and most Christians of the era followed suit. Natural law couldn’t cope with the needs of the age. Why natural law was believed to have failed in this respect is less clear. Most scholars point to the disruptions of the Civil War in Great Britain and the Thirty Years’ war on the continent.
In my own reading, I suspect that the lure of Isaac Newton’s physics had much to do with the decline of natural law. In the realms of ethics and politics, the previous agreements could never provide the certainty of a deductive science. And if Newton could provide certainty with his theory of motion, what stood in the way of the same certainty being achieved with a political science? While in fact, lots of things stood in the way of such an achievement, the thinkers of the 17th and 18th-century still hoped for mathematical certainty, unreasonably so.
By way of a brief, albeit relevant, tangent, it should be noted that this century was also a time of plagues and epidemics. By this point in our current pandemic, everyone has heard the stories that it was because Newton was quarantining during the Great Plague that he invented physics. Usually, the story is told with the following emphasis: Newton discovered gravity while in lockdown, so what are you complaining about? But I think that there could be a deeper significance to be found here. Locke was a physician and studied plague victims. It is interesting to compare his reaction to the plagues of his time to Covid-19; there is nothing of our recent xenophobia to be found in Locke.
What he saw as the most dangerous was not foreigners but what he called “enthusiasts.” Historically, the term was used as an insult for the populists who were behind the English Civil War, but Locke had in mind those enthusiasts who had somehow acquired influence and then tricked anyone who would listen that they, the enthusiasts, were serious intellectuals. The “day-labourers and dairymaids”—Locke’s term for the common people—had little time or resources for the intellectual life, and he was sympathetic to them. But he really hated those who would take advantage of the labourers in this way. If there were tricksters like that around during the Great Plague of London, the quest for mathematical certainty makes more sense, because it raised the stakes of, what we now call, disinformation. This is incredibly important for understanding how Locke responded to the right of conscience in a conveniently relatable and relevant way.
This, finally, gets us to our topic today. The sorts of questions that they were asking in the 17th century may seem oddly familiar to us now: may the government set rules for the clothes that citizens wear? What if a church requires animal sacrifice—or even, human sacrifice? Can the government ban that? How about a law requiring prayer or Sabbath-keeping? If the government cannot demand that from those who object, what’s to stop citizens from objecting to all sorts of laws? And if I, as a Christian, tolerate your worship—say, as a Muslim or Jew—doesn’t this suggest that I’m not really committed to the Christian God? If one were to answer these questions today, odds are that one would give Locke’s answers without realizing it. But simultaneously, one might have realized that our usual answers have gaps; areas where they don’t fully solve the dilemma. And those gaps, I will argue, are surprisingly often the sort of questions that lay behind a collection of essays such as this, that explain why the volume in your hands could even be necessary after all these centuries. Our automatic, default answers, have holes and the holes correspond to a certain set of related questions today. That cannot be a coincidence.
Why did Locke initially oppose religious freedom? There are two primary reasons. The first might be called the No Football Colours Rule. I once took my daughter, Hannah, to a bowling alley in Scotland. She noticed a sign on the door and asked what it meant: “No Football Colours on Match Days.” It took me a while to understand. Apparently, the owners had found from past experience that if I show up in my blue Glasgow Rangers hat, and you in your green Legia Warszawa jersey, we will probably start a brawl with one another. The intuition at play here is that, diversity is a threat to peace. As Juvenal, the Roman poet, put it: “each party is filled with fury against the other because each hates its neighbours’ god, believing that none can be holy but those it worships itself” (Locke, 1997, p. 8). This isn’t a principled philosophical or theological argument. It is based on the prudential calculation that, on balance, diversity breeds contention and contention breeds war.
Locke’s second reason for opposing toleration is this: there is no such thing as limited government. This sounds like an odd claim, coming from one of the writers that we most associate with limited government, but it is sound reasoning given his premises at the time. The argument has two components: (1) Governmental authority must be absolute, for there is no available conceptual or theoretical apparatus by which authority can be limited without undermining it altogether and (2) granting exceptions for diverse religious practices violates the government’s authority and thus threatens civil peace. The first of these points may remind us of Thomas Hobbes, and indeed, it has sometimes been taken as evidence that Locke was Hobbes in sheep’s clothing. Yet his reasons are more subtle than that of Hobbes. The manner of worship should be relinquished into the hands of the ruler as part of the social contract, precisely because those details are not essential to our salvation. Just as we give up our freedom to drive on the “wrong” side of the road when we contract together to form a government, we also give up our freedom to worship in the “wrong” way.
The second point is the more forceful. Supporters of religious freedom had argued that it was wrong to “impose upon” the consciences of others. Locke replied to this claim, “tis true, ‘who would have his conscience imposed upon?’” But this cuts both ways, for it is equally true, “‘Who would pay taxes? Who would be poor? Who … would not be a prince?’” (Locke, 1997, p. 22). Where is the limit, Locke asks? Allowing religious diversity would open the floodgates of anarchy, for whenever someone did not want to obey a given law, they would simply claim a religious exemption. Rather not pay your taxes this month? Claim that God told you not to. Rather sleep in on Monday? Invent a religious holiday.
By thinking that some would resort to such trickery, Locke reveals himself to have a very cynical view of people. My point in highlighting this is not that Locke has a low view of the average person’s virtue, but rather that this indirectly shapes what he was looking for in a solution to the problem of religious toleration. It must be immune to phony claims. Why? Because some people are devious. Furthermore, any adequate solution cannot rely on the wisdom of the judges enforcing the rule because judges are people too and, therefore, some are devious. Locke has his own examples of trickery but let me update the examples for our century.
First example: in the UK, most of the major grocery store chains ask customers to lower hoods from hooded sweatshirts to dissuade shoplifting. Several years ago, one young Englishman didn’t want to comply when he was in Tesco, and had a clever way out of the rule. Or so he thought. He said, “I am a faithful Jedi knight, and my religion forbids me from removing the hood of my Jedi robe in public.” As you would imagine, this made headlines. Unfortunately for this one aspiring Jedi, Tesco’s customer service department had even bigger Star Wars nerds than him. They responded with a list of scenes in which master Jedis appear in public without hoods; Tesco cited Yoda by name.
Second example: a Tennessee man said he had a religious compulsion to wear a chicken suit to his upcoming court appearance. The judge was not amused.
Final example: I once met a couple on the train to Rome. They assured me that, although they were not racists themselves, Muslim women shouldn’t be allowed to wear head coverings because they could use that as a disguise to steal diamonds. I am still unsure as to why they were so particular about diamonds being the objects of theft.
The lesson to be learned from such examples, Locke thinks, is that we cannot rely on people, even elites like lawyers and judges, to separate the silly from the sincere. The rules must do that on their own, by themselves. And as things stand—or stood in 1660—no such rules exist. In fact, he created labels for these two forms of sneakiness. He calls one the Pretence of Loyalty to the Common Good (Locke, 1689, p. 25). An example of this is those who pursue religious persecution under the guise of civil order. “If Muslims wear headscarves, they’ll steal all our diamonds!” The other he calls the Pretence of Loyalty to God: those who really do threaten the common good under the guise of religion (Locke, 1689, p. 26). “God told me not to stop at this red light!” Because Locke believed society was full of such trickery and nonsense, religious freedom would be impossible. It wouldn’t work.
Then he changed his mind.
If we read between the lines, it is almost as though Locke always wanted toleration to work, but he feared that it would fail. The following years took him on two trips to continental Europe, where he saw religious freedom work well. The first was a diplomatic mission to Cleve (then under Dutch control, but now part of Germany) and the second was his temporary exile in Amsterdam. In both cases he was intuitively impressed with how well toleration worked, but he could not—at least not at first—find a way to make it work intellectually. What he saw in Europe helped him see that the No Football Colours Rule was not universally true. Diversity does not always breed violence. It depends on the people. Some people (bowling alley patrons in Scotland, apparently) will fight when they see rival football team’s colours; others will not.
This left two problems to overcome before he could endorse toleration in his own context. First, Locke needed to figure out how to persuade the English to become like the tolerant Dutch whom he had met on his trips. That is, he needed to convince them that when you see a rival sports jersey, you may respond with good natured teasing, but should not throw a punch. Second, he would need a principled mechanism for distinguishing the tolerable from the intolerable; that is, how can a ruler grant freedom without descending into anarchy where people conscientiously object to taxes, obeying speed limits, and stopping at red lights? Eventually, he found a way around these obstacles, or at least thought he did.
Nowadays we are often sloppy in how we use terms like discrimination and intolerance. Locke was more careful, and this helped him overcome the first obstacle. An example of our present sloppiness will sharpen the contrast. I was born in Canada, so to get British citizenship, I was required to complete a test on the country’s history and values after I moved to Scotland. The morning of the test, there was a newspaper report about a police operation arresting hundreds for child abuse. One of the officers involved said, “today’s efforts show that this will not be tolerated in Scotland.” When I arrived at the testing centre that afternoon, I paused when I read the first question: “True or False: Intolerance has no place in Scotland.” I knew not to base my answer on what the police officer had said in the newspaper. The writers of the citizenship test wanted me to answer ‘True’, but that makes sense only if we reinterpret the question as saying, “intolerance [of certain sorts of things, but not others] has no place in Scotland.”
Locke recognized this nuance. In the Netherlands, he had discovered that the Dutch placed religion in the box labelled “tolerable because it’s like allegiance to football teams” and not in the one labelled “intolerable because it’s like child abuse.” Locke’s problem was: how do I convince my readers to shift religion from the intolerable box, where they currently have it, to the tolerable box? His solution is very shrewd, theologically subtle, and indicative of his Protestantism. It is also not the most important move he makes for today’s conversation, so a lengthy discussion of it must be saved for another essay (Perry, 2017, p. 130). Rather, his solution to the second obstacle is the most important for our discussions about religious freedom today.
Remember the second obstacle: how can we say that the ruler cannot command some things (things that violate conscience) without, in effect, undermining governmental power altogether? But remember too that people are sneaky and could falsely claim conscientious objections to get what they want: money, power, or the right to dress like a chicken. We need a principled mechanism for distinguishing what falls under the government’s legitimate purview and what does not. If we had that, we would be immune to the pretences, or so Locke thinks.
Locke believes that the sole reason humans have governments is to protect property rights, understanding “property” in the widest possible sense, and that religious beliefs cannot interfere with property rights, because religious belief is similarly limited to what promotes, in his words, “the salvation of souls”—which in a characteristically Protestant way equates with sheer belief (Locke, 1689, pp. 46-47). Now, we have our mechanism and now, Locke concludes, religious freedom is possible.
Let me flesh out how this could work by offering two of Locke’s own examples, which both concern—in a helpful way for our topic today—tension between religious belief and infectious disease. The first example concerns baptism.
let it be granted that the magistrate understands washing [of infants] to be profitable to the preventing of a disease and esteems the matter weighty enough to be taken care of by a law. In that case he may order it to be done. But will anyone therefore say that a magistrate has the same right to ordain by law that all children shall be baptised by priests in the sacred font [for] the purification of their souls? The extreme difference of these two cases is visible to everyone at first sight. (Locke, 1689, pp. 30–31)
The second example concerns sacrifice. This example is still an all-too-common one used in debates about religious freedom: ok, if the government must tolerate that, must it tolerate a religion that sacrifices humans? To which Locke writes:
I answer … No … These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God … But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf … that ought not to be prohibited by a law. [Whoever’s] calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to anyone, no prejudice to another man’s goods … But … if the stock of cattle that had been destroyed by some extraordinary [epidemic then], in such a case, [the ruler] may forbid all his subjects to kill any calves for any use whatsoever. Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice thereby prohibited, but [only] the slaughter of calves. (Locke, 1689, p. 42)
Let’s unpack this a bit. The solution is premised on separating the religious from the political, understanding “religious” to mean one’s afterlife and “political” to mean property rights. The act of washing could influence rights-bearing but baptism, so called, could not. So also, for sacrifice. Sacrifice is something that could affect the afterlife, which must be conceptually separable—if this solution is going to work—from the act of killing cows. It is as though religious acts are invisible to the government. The magistrate cannot see a baptism or a sacrifice taking place, only the acts of washing and killing.
With this in place, a workable theory of religious freedom is complete. What we typically take for granted as common sense comes to us largely via elements of this proposal. Despite the widespread acceptance of this solution by religious and secular alike, the real-life controversies that it was designed to avoid persist. The holes in this solution are fairly easy to see, and if one cares about religious freedom, one ought to be dissatisfied.
Now the careful reader might reply, “No, indeed I do care about religious freedom, but I’m not dissatisfied. So what if some old Englishman has a dissatisfying view of toleration? We have moved on a lot since Locke’s time. His view is not my view. My view is better.”
I trust your view is better. But it could be easier said than done. Locke succeeded by playing fast and loose with a very Protestant set of theological presuppositions, one which is too Protestant even for many Protestants nowadays. Without buying into those presuppositions, the solution either doesn’t work at all, or works very shakily. Even setting the theology aside, there are troubling threads that run through the whole of the tradition. The trouble isn’t limited to liberal Protestants like Locke. The thread continues in religious sceptics such as John Stuart Mill, American Jesuits like John Courtney Murray, and even quasi-Episcopalians like John Rawls. This set of traditions has so shaped our collective political cultures that thinking our way out is difficult.
This fact, in turn, raises the stakes for this closing, more theological, section. If there are problematic elements across a range of traditions of toleration, elements that we struggle to shake, how should religious believers think about these topics if they are to be faithful? Put another way, the previous sections describe how many of us think about religious freedom. The next section ventures some thoughts about how believers should think about it.
If you are Catholic or atheist and you only know one thing about Locke, it is likely to be that Locke didn’t tolerate Catholics or atheists. The tradition quickly took care of that oversight by saying, in the words of Thomas Jefferson, “where Locke stopped short we may go on” (1943, p. 945). He further states elsewhere, “It does me no injury for my neighbor to say that there are twenty gods or no God; it neither picks my pocket nor breaks my leg” (Jefferson, 1984, p. 285). In expanding the scope of the tolerable, however, the criteria didn’t expand. It is still all about property rights—avoiding pickpocketing and leg-breaking.
This is fine, as far as it goes. Both atheists and Catholics should be tolerated. However, by expanding the scope of the tolerable, we quickly encounter another problem. From a social scientific perspective, the concept of religion is notoriously vague. An anthropologist I know, who is also a priest, challenges his students to provide a definition of religion that overcomes what he calls the Buddhist problem and the Cosplaying problem. In short, a definition that includes Buddhists, who don’t believe in a deity but should still count as a religion, yet excludes social practices like cosplay, serious engagement in MMORPG (online gaming), and football fandom.
Some lawmakers and courts, including at points the U.S. Supreme Court, have attempted to do without a concept of religion, preferring to treat all conscientiously held beliefs alike. This works fine until the Justices meet the Tesco Jedi and the Tennessee man with his conscientious commitment to a chicken suit. This recalls the third COVID story from before, about the template for anti-vaxxers. This template was created by an enterprising young woman who got ordained online, and for a fee, would endorse any claims from anyone who didn’t want the vaccine. This is precisely why the template drew the ire of my colleagues at the Society of Christian Ethics. By not inquiring into the underlying theological reasons for a conscientious claim, it’s not much different than the Tesco Jedi. In short, it’s silly and the silliness undermines more serious claims.
What is the alternative? In the liberal tradition, conscience comes to mean whatever one wants. In the Christian tradition, conscience has a very particular meaning. For example, Roman Catholics can study the Note posted by the CDF on the Vatican website explaining how, even for those vaccines whose research used stem cells from aborted fetuses, using those vaccines is an instance of passive material cooperation, and therefore permissible (Note 2020). Without a toolkit capable of carefully parsing such dilemmas, it becomes very difficult to separate the serious from the silly, the conscientious pacifist from the Jedi. Thankfully, religious traditions do have such toolkits.
However, we must not overlook how the use of such theologically rich toolkits weakens the very thing that got the tradition off the ground in the first place. A world in which natural law was overwhelmed by pluralism needed a more sure and certain mechanism; one that renders it immune to phony claims. Or so the big names of early modern philosophy reasoned. The only way to be immune to spurious claims is to employ a math-like mechanism that doesn’t rely on wisdom or prudence. Locke found, or thought he found, such a mechanism by asserting that religion simply equates to the afterlife, and civil government simply equates to protection of rights. It was part of the design that sincerity of belief was invisible to judges and rulers. It’s not hard to have sympathy with what the thinkers of the 17th century were trying to accomplish. They feared that if it was up to judges or priests to weigh conscientious claims, what would stop the judges from making phony claims themselves? Should it be up to a bishop to say whether Dorothy Day’s pacifism was a sincere part of her Catholic faith or her anarcho-socialism?
By this point, I feel like I have been delivering only bad news, diagnosing rather than curing. In fact, I have some tentative ideas for ways forward. Three ideas to be precise; two for my fellow Christians and one for anyone willing to listen. First, it ought to be part of Christians’ job to call out each other for silly claims, or even questionable claims. With regard to the California man who claims God told him not to get vaccinated, it should be expected that his friends or pastor press him. How did God speak to you? Did God provide any reasons? If not, perhaps you misheard? If so, let’s hear them. What about the general Christian duty to protect the most vulnerable, some of whom cannot be vaccinated? That isn’t meddling in another’s faith; that is true friendship.
Second, there is one strategy that ought to be avoided at all costs. Remember how the Lockean solution held that “religious” concerns were invisible to the civil authorities. The magistrate could see rights violations, like killing cows and spreading disease by failing to wash or, to update the example, by not wearing a mask. The magistrate could not perceive anything else. In recent years, this has led to a disreputable strategy: Christians gerrymandering purportedly empirical evidence to allow the government to “see” alleged rights violations. This has been especially common among American Protestants, but is not unheard of among European Catholics. It typically runs something like this: adoption agencies are justified in discriminating against gay or lesbian parents because of this or that sociological study that shows that their children grow up to be juvenile delinquents or some other such nonsense.
Admittedly, this has the allure of truth—who can argue with science, after all?—but remember the point of Locke’s relish quote. The point was to undermine the public plausibility of natural law and he was surprisingly successful. If Christians make such arguments now, it by necessity is lost in translation. The traditional Christian natural law for marriage or parenthood is premised on a vision of flourishing that cannot be translated to the lowest-common-denominator of modern subjective property rights.
Thirdly, lastly, and for anyone willing to listen, I can see why Locke wanted math-like precision to guarantee rights of conscience. If you leave it up to judicial discretion, the rights will not be as certain. But on the downside, we find something that Locke shares with another John. John Locke and John Rawls each realize, up to a point, that they cannot fully disentangle morality, law, and religion, at least not in the tricky religious freedom dilemmas that concern us today. Yet they remain adamant that even the tricky cases can be made solvable by means of neutral principles, specified in advance of particular cases.
This means that both voices in this “Johannine” tradition leave us with a similar problem, arising from a similar source. They are both opposed to ad hoc or case-based solutions to disputes about the proper bounds between religion and government. We can readily see why they would prefer principled solutions to ad hoc ones. But wanting a neutral, abstract, principled solution does not mean one really exists. Indeed, in light of ongoing conflicts, it now appears increasingly naïve to hope that all imaginable future theo-political disputes can be solved so straightforwardly. It would be better to acknowledge that some disputes can only be solved ad hoc.
A closing real-life example, which many of you will know. In 2006, a Christian woman was told that wearing a cross violated her employer’s uniform policy, even though Sikh men were allowed to wear turbans and Muslim women allowed head coverings. The British employment tribunal who ruled against her did so partly on the grounds that wearing a cross is not specifically required by Christian teaching in the way that head coverings are required for Muslims and Sikhs. The tribunal’s reasoning rejects the Lockean principlist approach. They did not secularize the assertion “honours God by wearing a crucifix” into the more general “wants to wear jewellery.” If they did that, they would have bracketed-out of consideration the factor that they see as important, that is, that for Christians wearing a cross might be a preference, but not a conscientious requirement. The eventual ruling in her favour could have done a better job of avoiding this principlism. For example, they could have noted that she is a Coptic Christian and as such could have unique liturgical traditions that venerate the cross.
However, that raises another worry that I already mentioned: the spectre of judges doing theology. But the specifics of the case matter. It ought to matter if my objection to the vaccine is because of stem cell use or my dislike of needles. In fact, the Christian tradition of casuistry is quite at home with this sort of ad hoc reasoning. I do realize the risks of such analogical judgements. It prioritizes judicial discretion and has less place for statutory law, but there are risks with the opposite emphasis too.
Prof. John Perry