Freedom of Belief Bridges America’s Divides: Note for a Discussion: "E Pluribus Unum? What Keeps the United States United."

William A. Galston, The Wall Street Journal, Dec. 11, 2018 7:07 p.m. ET

A new charter restates America’s commitment to liberty of religion and conscience.

image from article:  The First Amendment on display in front of Independence Hall in Philadelphia.

While polarization has disfigured the party system, signs of hope for American politics have emerged among the people. Throughout civil society, groups of concerned citizens have come together to bridge the divides.

I’ve had the privilege of participating in several of these projects—most recently, a yearslong effort, convened by the Religious Freedom Institute and the Baylor Institute for Studies of Religion, to restate the country’s commitment to freedom of religion and conscience, shared by Americans across a wide political and religious spectrum. After extended and sometimes difficult dialogue, agreement was reached on the American Charter of Freedom of Religion and Conscience, signed by 75 distinguished Americans and released in Washington Nov. 29.

The noteworthy features of this document begin with the title. By pairing religion and conscience, it acknowledges the imperative force that nontheistic moral worldviews play in the lives of many people, and it consciously echoes Article 18 of the Universal Declaration of Human Rights.

The charter insists that the right to freedom of religion and conscience, rooted in the inviolable dignity of every human person, is not the gift of any government. It exists prior to governments, whose duty is to guarantee and protect this right. Though this thesis might seem tendentious, it is a restatement of the argument of the Declaration of Independence, which declares that people create governments to “secure” rights that governments do not create.

In practice, the charter observes, freedom of religion and conscience protects not only individuals but also groups brought together by shared beliefs and modes of devotion. It is a key element of freedom of association, the precondition for a robust civil society.

The charter insists that freedom of religion and conscience protects more than the inner beliefs of individuals and the ritual practices of communities. It extends, as well, to the public life of the nations. Individuals and communities must be able to bring their convictions to bear on public issues and to support public officials who share their convictions.

This move from private to public life raises three perennial problems. First, in religiously diverse societies, claims based on religion and conscience inevitably will conflict. The freedom of each must be made consistent with the freedom of all. This is why no religion can enjoy a preferred legal position, why the Constitution forbids religious establishment, and why the Supreme Court has forbidden government to act in ways that amount to endorsing specific religious views.

Second, the public dimension of religion and conscience risks entangling the two with the state, to the potential detriment of both government and religious integrity. Averting this risk requires government to minimize its involvement in the internal affairs and ritual practices of communities of belief.

On the other hand, government must protect the peace and order of society. Freedom of religion does not give any faith community the right to hold a noisy revival meeting at 2 a.m. Nor does it give any community the right to engage in practices that violate core norms of any civilized society. Even if a faith group sincerely believes human sacrifice is essential for salvation, the state is obligated to forbid this practice and punish anyone who seeks to engage in it. Whenever government limits free exercise, it must be to protect a compelling public interest, and the means it employs must restrict free exercise as little as possible.

Finally, as the charter observes, freedom of religion and conscience is a fundamental right, but it is not the only such right. Because there are multiple rights, no right is absolute, taking priority over others in all situations. “Where rights claims clash,” the text insists, “the issue in each case must be assessed on the merits, giving due weight to the considerations and arguments of the competing sides.”

This argument raises a key practical issue: What kind of forum is best suited to resolve conflicts among rights? Though the default answer in recent decades has been the judiciary, the charter’s drafters agreed that in many circumstances, discussion and mutual accommodation are preferable. The legal framework of guaranteed rights is often too abstract to yield conclusive guidance about how competing rights should be balanced. Civil society and the legislative branch often are better suited to this task than are the courts.

In 2015, for example, gay-rights groups reached agreement with the Church of Jesus Christ of Latter-day Saints and other religious groups on a framework that prohibited many forms of discrimination while safeguarding core religious liberties. The Utah Legislature quickly enacted the agreement in law. Our divided polity needs more civil dialogues like this, and more legislators willing to respect their outcomes.