In Defense of Religious Liberty
by David Novak
ISI. 204 pp. $28.00
The Jews in Babylonian exile asked, “How do we sing the Lord’s song on strange ground?” Today, some religious Americans, feeling marginalized in a culture increasingly bleached of religious values, pose their own version of this plaint. In their view, the traditional “wall” separating church and state has become an all-excluding garrison, shutting out religious sensibilities from our public debates about issues like abortion, gay rights, embryonic stem-cell research, and euthanasia.
On the other edge of the divide stand those who stress the First Amendment prohibition on the establishment of religion, and worry about incursions of the reactionary “Religious Right” into the public sphere. A couple of years back, for instance, in a book bemoaning the rising influence of the “theocons”—a group of mostly Catholic thinkers associated with the magazine First Things—Damon Linker raised the specter of “a future in which American politics and culture have been systematically purged of secularism,” and “the separation of church and state as we have known it will cease to exist.”
Prominent among the first group is David Novak, a rabbi and professor of Jewish studies at the University of Toronto who has been a longtime advocate of Christian-Jewish “interfaith” dialogue. In a sharply worded new book, he claims that “religious liberty is being seriously threatened” in “every constitutional democracy in the world.” For examples of this, he points to a new wave of “militantly atheistic talk” and efforts by judges and legislators ignorant of our religious heritage to “privatize” religion by, for instance, legalizing same-sex marriage.
The most strident secularists, Novak adds, go so far as to claim that “no religious reason can ever be invoked in any moral debate, especially moral debates that have political and legal consequences.” To thus deprive believers of the right to “make moral claims on other citizens based on an idea of natural law,” he concludes, amounts to “anti-religious persecution.” Making matters worse, beleaguered religious communities have for their part succumbed to timidity, muddled thinking, and “political ineptitude.”
Novak’s ambitious defense of these communities digs down into the philosophical roots of religious liberty, which he understands not in the usual sense as freedom of worship, but as the “freedom of a religious community to bring its own moral wisdom into the world.” His argument proceeds along two main lines. The first is that religion—in this case Judaism, for Novak here speaks “as a Jewish theologian” and as a “philosopher thinking out of the Jewish tradition”—gives a stronger foundation for human rights than any secular grounding can.
As in an earlier book called Covenantal Rights (2000), Novak argues that liberty is best assured not, as secularists would have it, in a social contract but in the covenant between God and the people of Israel. Only in the latter framework do individual rights derive from an immutable promise. In order to “save ethics,” he wrote in that earlier work, we must “employ theology.”
In Defense of Religious Liberty goes a step further and reads this idea back into America’s founding. Thomas Jefferson’s reference in the Declaration of Independence to “inalienable rights,” Novak says, assumes a law higher than that of the state—a set of “natural rights.” And these, he argues, presuppose in turn a divine lawgiver. “Without an ultimate reference to God,” he writes, “natural rights are meaningless”—there is nothing to guarantee their permanence and universality. A state without God, moreover, “regards itself as the source of its own order, its own authority,” and is dangerously liable to threaten our rights.
Novak’s second and more compact line of argument goes to the viability of law itself:
If law is to intelligently order our interpersonal desires in such a way that the common good is properly served, how could that law be the product of the desires of any of those who need to be governed by it? Thus it must come from the desire or will of someone not governed by it. Once there is an externally imposed law on our desires, there is a god of some sort or other.
To sing the Lord’s song on American ground, then, means to intone the indispensability of God in making that soil so fertile for rights and laws.
As an inquiry into the role of religion in a democracy, that in David Novak’s project which is sound is unoriginal, and that which is original proves unsound. Both parts, however, cast useful light on one of the more contentious features of American public life.
What is sound in Novak’s approach is the association of political health with the health of religious institutions. That pairing has embroidered the fabric of American life from George Washington’s Farewell Address (“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports”) to Ronald Reagan’s assertion that liberty best flourishes in a nation of believers.
But the early Americans sought refuge in the New World precisely because they wished to avoid the sectarian strife that ravaged Europe until politics there was emancipated from ecclesiastical control—a strife that erupted when religious groups introduced their moral wisdoms into a “world” that included others who professed a different set of wisdoms. The founders’ alternative was to put their political trust not in law whose mainstay was provided by religion but rather in “republican morality” and “civic virtue.”
It may be that the liberal tradition owes a considerable historical debt to the biblical one. And it may be that religion—the Jewish teaching of man being created in the image of God or the Catholic doctrine of natural law—offers a more direct and authoritative basis for natural rights than the syllogisms of modern liberalism. (What, after all, can compete with the divine for authority?) But it does not follow from either proposition that a religious foundation is indispensable to democratic politics.
Most modern thinkers about natural rights abjured invocations of the divine. They thought that natural rights were (to take Jefferson’s phrase in the Declaration of Independence) “self evident,” or that one could get to natural rights through philosophical reasoning. Others dispensed altogether with the idea of natural rights outside the polity; Jeremy Bentham famously called this “nonsense on stilts.”
In arguing the contrary—that morality cannot in principle be separated from religion, that God is the source of moral law, and that affirming natural rights requires first affirming God—Novak’s burden is considerable. He must show that a religion contains within it the formula for a full-fledged system of rights, and that a commitment to a religious tradition does not preclude a commitment to religious liberty. This is no simple task, as he recognizes in his exposition of the Jewish tradition, given the Bible’s prohibition against worshiping strange gods and the rabbinic denial of the right of Jews to leave the faith. Novak is forced to claim, for instance, that membership in the Jewish covenant is voluntary. “In fact, if not in principle,” he writes, “Jewish authorities did recognize the right of a Jew to leave Judaism and the Jewish people”; they granted “de facto recognition of the right to radically leave Judaism.”
But this is an eccentric view at best. Even though some rabbinic authorities held that an apostate is denied certain benefits granted to Jews—he cannot inherit his relatives’ property, for example—such penalties are intended to discourage apostasy, not to strip the offender of his Jewishness. His formal legal status as a Jew is never in doubt.
What, then, of Novak’s claim that a state without a religious foundation remains powerless to curb its own dangerous impulses and to stand its laws on solid footing? It is true that the Hebrew Bible invented the notion of a higher law—higher because not man-made—to which even kings are subject. And it is true that subjection to a universal and transcendent deity precludes total obedience to any earthly power. “‘For unto Me are the children of Israel slaves,” quotes the Talmud from Exodus, adding: “they are not slaves unto slaves.”
But here again, we would do better to return to the founders, who taught that idolatry of the state is in practice best tempered not by invocations of natural rights or divine law, but by throw-the-rascals-out democracy, with its representative and limited government, separation of powers, the Bill of Rights, and so forth. The problems posed by the diminished role of transcendent religious values, in other words, can be best met by a strong conception of democracy.
This brings us, at last, to the nub of Novak’s case: a mistrust of democratic self-government. This mistrust informs his claim that secular citizens “have no basis for rationally challenging the unjust exercise of state authority.” It also guides his disbelief that wise men can design a law by which they themselves are to be governed—that is, that they can create representative government based on the consent of the governed.
Novak’s fears, however, are in the end as misplaced as Damon Linker’s. The denigration of religion in American life—and the ensuing moral effects—is no trifle. The power of religion to shape men’s characters for the better is no trivial thing. But the purposes of politics do not include realizing transcendent visions, religious or otherwise. As this radical and unconvincing book shows, the troubling tale of religion in America involves not only a progressive elite intent on purging the public square of all symbols of religion, but also those people of faith who have lost their faith in self-government.