The truth that dare not speak its name is that even many friends of religious freedom have been content to argue for that freedom on terms that accept this reduction of religion to “beliefs” untested by reason. They do so because they don’t wish to put themselves in the position of speaking the uncomfortable truth: that not everything that calls itself religion in this country may be regarded as a legitimate religion. And so we try to vindicate a “ministerial exception” to the laws on employment. We insist that churches must be free to determine who counts as a minister according to their own criteria and teaching. But does that freedom from the intrusion of the government apply as well to the ministers appointed under the Church of the Flying Spaghetti Monster, or even worse, does it apply to Satanists claiming the standing of a religion?
We cannot detach ourselves from judging Satanism, or radical evil, and in the same measure we cannot detach ourselves from the task of discriminating between religions that are more or less plausible, more or less legitimate, based on the substance of what they teach. No argument that seeks to explain a just regime of religious freedom—and a sweeping protection for anything that calls itself religion—could possibly offer a coherent moral account when it seeks to incorporate in its understanding a posture of indifference to radical evil. The canons of reason will ever be woven into the laws on religion—even in judging what is plausible or implausible in what is reported to us about the word of God.
Aristotle taught us that the mark of the polis, the political order, was the presence of law, and law springs distinctly from the nature of that creature who can give and understand reasons concerning matters of right and wrong. Aristotle expressed the classic understanding of the moral ground of the law in that way, and I would suggest that the freedom of religion will find firmer ground by insisting again on that connection between moral reasoning and the law—between the reasons that support our religious convictions and the religious freedom we would protect through the law. The beginning of the argument would be to remind people of that connection between the very logic of a moral judgment and the logic of law. In the strictest sense, a “moral” judgment moves beyond statements of merely personal taste or private belief; it speaks to the things that are right or wrong, just or unjust, generally or universally—for others as well as ourselves.
In a corresponding way, the law moves by overriding claims of mere private choice, personal freedom, subjective belief. It imposes a rule of justice that claims to hold for everyone who comes within its reach.
Thx to @AmherstCollege's Hadley Arkes & @POLI_LSU's James Stoner for discussing Justice Scalia w/ #LSULaw on Thurs. pic.twitter.com/FM2tUDrwmt
— LSU Law Center (@LSULawCenter) September 16, 2016