Catholic scholar’s new book argues that “religious free exercise is part of the secular Constitution”

A review of "Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith" by Dr. Francis J. Beckwith.

In his new book, Taking Rites Seriously, Baylor University Professor of Philosophy and Church-State Studies Dr. Francis J. Beckwith reviews several areas of law and public policy with a view to showing how “a small error at the outset can lead to great errors in the final conclusions” and how religion (“rites”) is disparaged as irrational “by powerful actors in our public life.”

Beckwith says that there is a “theological exclusionary rule” that bars religion from serious consideration in the public realm. This is the hinge on which the book is based. Using Article VI of the Constitution prohibiting the imposition of a religious test for federal public office as an analogy, Beckwith points out that the positions of religious believers on public issues are immediately disqualified because they are religious, even though their legal and public-policy arguments are not religious. That is, secular tests—what are implicit secular oaths—are effectively being imposed on religious people.

As an example from academia, he cites law professor Sherry Colb, who says that “the idea that full-fledged human life begins at conception . . . is a religious notion.” So, all you pro-lifers (and biologists), you may not be heard about abortion because your position is by definition disqualifyingly “religious.”

Other examples branding religion as irrational have occurred in Supreme Court cases. Beckwith quotes Justice Douglas in 1944 about religion: “Men may believe what they cannot prove.” He cites Justice Brennan in 1976, “matters of faith, whether or not rational or measurable by objective criteria.” And Justice Stevens in 1977, “the distinction between the religious and the secular is a fundamental one” and in 1989, a “religious tenet” has no “secular purpose.” In the homosexual case, Lawrence v. Texas (2005), Justice Kennedy asserted that “the moral condemnation [of homosexual conduct] has been shaped by religious beliefs . . .”

Nevertheless, Beckwith points out that certain decisions of the Supreme Court, and even its more general jurisprudence, agree with him. The Supreme Court overturned an actual religious test for public office in Maryland in Torcaso v. Watkins (1961). And the Court said in the foundational religion case, Everson v. Board of Education (1947): “No person can be punished for entertaining or professing religious beliefs or disbeliefs.” This is a consistent theme of the book—that in its more general enunciations even “secular rationalism” can recognize positions that it opposes in specific applications. Thus, social philosopher Ronald Dworkin, an advocate of abortion and rights based on homosexuality, has also said that religious freedom is “one case of a more general right not simply of religious but of ethical freedom.”

Along these lines, Beckwith makes an interesting comparison to the issue of school prayer. The prohibition of school prayer by the Supreme Court is based in part on making non-praying students not feel singled-out and made to feel as outsiders. By the same principle, Beckwith argues, students and their parents should not be made to feel as outsiders or “homophobes” when they support natural marriage as against same-sex marriage.

Beckwith distinguishes motives, including religious motives, from the actual policies being advocated by the motivated persons. He argues that motives are “types of beliefs,” but argues further, making the fundamental distinction, that neither beliefs nor motives are the acts or policies themselves. Motive “may explain,” he says, why an agent supports a particular policy, but an explanation is neither the policy itself nor the justification for the policy.” If the religious motive is taken to be the policy itself, then religiously motivated people may not have any legal remedies when they perceive that their rights are being violated, effectively putting them outside of the protections of the law. He cites the words of a federal district court judge in a 2005 case concerning evolution in science textbooks that the Georgia state law in question was “largely motivated by religion” and that it enacted “the viewpoint of these religiously motivated citizens.”

He goes on to the Wallace v. Jeffries decision by the Supreme Court in 1985. In overturning an Alabama statute allowing a moment of silence that could have included silent prayer, the Court actually focused on and emphasized the state senator who was the chief sponsor and held that the law was “not motivated by any secular purpose.” As Beckwith points out, the law was passed by the entire legislature, so the motivation of one voter says nothing about the motives of the 99 percent of the other legislators who voted in favor. But, in focusing on that one legislator, surely, Beckwith argues, the Supreme Court effectively imposed a religious test disqualifying him from office.

Beckwith, citing “scientific materialism” and social philosophers John Rawls and Steven Pinker, deals with the contention of political liberalism that a democracy must not embrace only one notion of the human person. Those thinkers see no reason for any concept of human dignity and believe that human “autonomy” basically suffices whenever any issue concerning human dignity comes up. In disagreeing, Beckwith points out, for instance, that everyone would agree that a brilliant individual who chose to spend his life as a couch potato had sacrificed something essentially human to the principle of autonomy. And he contends that non-autonomous beings—that is, those who cannot give consent, such as embryos—can have their dignity violated. And in these days of “animal justice,” he could have also mentioned that the defense of animal rights is based on the fact that animals cannot consent to what is imposed on them by humans.

According to Beckwith, the recent Hobby Lobby case serves as an example of perhaps his major point. In 2014, the Supreme Court in a 5-4 decision upheld the objection by the Hobby Lobby and Conestoga Wood businesses to the federal government’s mandate requiring contraception coverage in health plans. Those stores maintained that the kinds of contraceptives at issue were really abortifacients. The Court upheld their claims and ruled the government could have used other possible means to achieve its objectives and avoid the coercion of the plaintiffs’ “sincere religious beliefs.” While applauding the Court’s decision, Beckwith points to Justice Ginsburg’s dissent in which she basically says that if the religious beliefs of Hobby Lobby and Conestoga Wood are deferred to, then the Court must accommodate any and all beliefs asserted to be religious. So, according to Ginsburg, there is a sharp distinction between religion and the proper rational thinking applicable to constitutional law. But Beckwith says that there is a sense in which that distinction of Ginsburg is correct. For if the positions of religiously motivated parties in lawsuits are only religious, then there is no additional reasonable basis for them. Religion is left as a legal island, with no relation to larger constitutional law.

But, again, Beckwith, as he does in several places in the book, recognizes the contradictions and points out that the Court has not left religion on its own in other cases. In the mandatory-school-attendance case, Wisconsin v. Yoder (1972), the Court, in upholding the Amish did not merely endorse that group’s religious views but added, with approval, a secular rational basis: the Amish are diligent in educating their children and preparing them for adult responsibilities. And in overturning the city ordinance forbidding animal sacrifice in the Church of the Lukumi Babalu Aye case (1993), the Court basically ignored the “sincere religious beliefs” of that church and, instead, focused on the singling out of that group by the ordinance and its inconsistent application compared to other groups, like kosher butchers.

This review is only a minimal introduction to a book that is an annotated collection of Beckwith’s individual essays and lectures over a period of several years. With copious footnotes, it is almost an encyclopedia of all views, pro and con, on the major public moral issues, including abortion, marriage, human dignity, and bioethics of our day. And graduate students, take note, it is also a major jump-start on about twenty-five doctoral dissertations. “Religious free exercise is part of the secular Constitution,” says Beckwith, and that serves as a working summary of Beckwith’s main purpose in this important book.

Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith
by Francis J. Beckwith
Cambridge University Press, 2015
Paperback, 240 pages

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About Thomas R. Ascik 22 Articles
Thomas R. Ascik is a retired attorney who has written on a variety of legal and constitutional issues.