Jul122016
Article excerpt

“Michael Sandel has recently argued that current American liberalism cannot protect religious belief, because liberalism cannot understand the difference between ‘choosing’ and being compelled by evidence, grace, or providence, mediated through family, tradition, and other forms of moral authority, to embrace a religious faith.

“Sandel’s concern is a ‘vision of pluralism . . . defined by the claims that the right is prior to the good, and in two senses’:

. . . first, individual rights cannot be sacrificed for the sake of the general good; and second, the principles of justice that specify these rights cannot be premised on any particular vision of the good life. What justifies the rights is not that they maximize the general welfare or otherwise promote the good, but rather that they comprise a fair framework within which individuals can choose their own values and ends.

“Sandel believes that the priority of right over good proceeds from a view of the person that posits ‘the self as free and independent, unencumbered by aims and attachments it does not choose for itself.’ This self is radically autonomous, forming associations freely rather than by being formed by any natural community. Choice precedes right and good; the self is ‘given prior to its purposes and ends.’ If any choice is made with reference to (or determined by) anything outside the choosing self, then the choice is not authentically free, and neither is the person.

“Thus, the self is free from any natural obligations. ‘Freed from the sanctions of custom and tradition and inherited status, unbound by moral ties antecedent to choice, the liberal self is installed as sovereign, cast as the author of the only obligations that constrain.’ No obligation transcends or guides the choice except the obligation not to deny the freedom of another person to choose. ‘We must respect the dignity of all persons, but beyond this, we owe only what we agree to owe.’ Even the rule not to coerce another is bound by nothing but mutual agreement.

“This theory has produced a confused legal tradition in which ‘encumbered’ selves are not afforded the protection of unencumbered selves. Recent U. S. Supreme Court rulings assume that religion is chosen without reference to any influencing tradition, community of truth, or conviction of truth. Thus, the Court is not neutral regarding religion; it must prefer nonreligion (or secularism) to religion, especially orthodox religion. The theory at work in these cases is that, since no one is ever compelled to adhere to a religious tradition, neutrality offends neither the religious nor nonreligious person. The Court sees religion as something chosen from an autonomous position, and the state has nothing to do with private choice. This position is epitomized by Justice John Paul Stevens in the Alabama school prayer case:

The individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. The Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful.

“Sandel thinks that such a view ‘does not serve religious liberty well’ since ‘it confuses the pursuit of preference with the exercise of duties.’ He says that ‘the respect that this neutrality commands is not, strictly speaking, respect for religion, but respect for the self whose religion it is.’ For the Court, ‘choosing’ a religion is not qualitatively distinct from choosing a college or even a brand of toothpaste. In ruling as it has, ‘the Court gives constitutional expression to the version of liberalism that conceives the right as prior to the good and the self as prior to its ends.’ This view of the person ‘ill equips the Court to secure religious liberty for those who regard themselves to be claimed by religious commitments they have not chosen.’”

—from Kenneth R. Craycraft, Jr., “The Seductive Liberal Myth of Religious Freedom” (The World and I, December 1993)

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