To the Law and the Courts: Take Religious Freedom Seriously

Scott Rae: Welcome to the podcast “Think Biblically: Conversations on Faith and Culture.” I'm your host, Scott Rae, professor of Christian ethics and dean of the faculty at Talbot School of Theology at Biola University.

We're here today at the meetings of the Evangelical Theological Society, where we get a chance to gather all of the big hitters in terms of theology and philosophy and biblical studies from our evangelical movement. I'm so grateful that our guest today, Dr. Frank Beckwith, is not only here at ETS but has agreed to take time out of his schedule to take time for the podcast today. Frank, thank you so much for being with us on this.

Frank Beckwith: Well, I'm delighted to be here, Scott. Thank you.

Scott Rae: Frank is professor of philosophy and church-state relations at Baylor University. He's been there for over a decade now, right?

Frank Beckwith: This is my sixteenth year.

Scott Rae: Sixteenth year.

Frank Beckwith: Yeah.

Scott Rae: And, I mean, he has more books and journal articles than we know what to do with. It would take most of our time here to outline those. But what I do want to point out is that Frank has had the chance to publish in a lot of different venues that the average Christian philosopher doesn't get to do.

Lots of law journal publications, lots of public affairs and public policy types of journals. His specialty, really, is in the area of the intersection of law, politics and religious faith. And so that's what his latest book is about, which I want to talk about today.

Frank Beckwith: Great, yeah.

Scott Rae: It's called Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith. So first of all, tell me what you mean by that title, Taking Rites Seriously?

Frank Beckwith: Well, there's a little history behind it. There was a book published in the early 1970s by Ronald Dworkin called Taking Rights Seriously. And when I was thinking about the name of the book, I came across an article by Paul Whiteman at the University of Notre Dame who published in the Pacific Philosophical Quarterly an article entitled “Taking Rites Seriously.”

And it was a critique of Dworkin and Rawls. And so I decided to take that title. I give him full credit in the acknowledgements, and under copyright law you don't need actually to get permission to take titles. But it captures, I think, what I'm trying to achieve in the book. I'm trying to do several things, one of which is to kind of correct judges and legal scholars and how they understand religion.

And also deal with some of these recent issues involving conflicts between anti-discrimination law and the rights of Christian vendors not to participate, let's say, in same-sex wedding ceremonies.

Scott Rae: So like Jack Phillips in Colorado?

Frank Beckwith: That's exactly it, in the Masterpiece Cakeshop case. So the word rites obviously refers to sort of practices or activities that religious citizens engage in. We think of things like baptisms and weddings and so forth.

But I also broadly am referring to just beliefs that Christians and other religious citizens hold that are tightly tethered to their theological traditions. So that's the kind of origin behind the title. So when anyone Googles Dworkin's book, mine will pop up.

Scott Rae: That's a really nice thing, to have your critique pop up right away.

Frank Beckwith: Yeah.

Scott Rae: So if you look through the table of contents to the book, it covers a wide variety of subjects relating from abortion to same-sex marriage and a whole host of things in between that. It looks on the surface to be a pretty eclectic collection of essays. But I know there's a theme that unifies all of these things. So tell our listeners a little bit. What's the underlying big idea that you're trying to get across in this?

Frank Beckwith: Yeah. The book is divided into three parts. The first has to do with sort of issues in faith and reason. The second part has to do with issues of human dignity and the beginning of human life. And the final part has to do with issues of nature.

So the last part deals with issues concerning debates about intelligent design as well as same-sex marriage. You think, well, what do they have to do with each other? I actually do think they have to do with these deeper questions about nature. And, of course, the one has to do with the origin of nature, the other has to do with whether, in fact, we can derive from human nature particular ways in which we should conduct our lives concerning marriage and issues like that.

So the underlying theme is basically how best to understand religious beliefs that happen to, at times, run into or conflict with prevailing cultural trends. And so there's really no one right answer, because religious beliefs are different. So if I'm talking about, let's say, abortion, I can make an argument that I think appeals to premises that maybe somebody who doesn't share my faith may find plausible.

But if I'm making an argument as to why a wedding vendor should be permitted to, let's say, not cooperate in a same-sex wedding, there I have to actually get into the weeds theologically. Like what is a wedding for Christians? Which is a different question than, let's say, an abortion. So the underlying theme is how to best understand these disagreements, and also to offer correction.

Because one of the things that is astonishing to me, that I entered law 11 years after I did my Ph.D. And so when I went to law school and I would read these cases and I would read legal scholars that are dealing with religion, I would think they don't understand it. They have a kind of almost bad Sunday school way of looking at religion.

Now, there are some sophisticated scholars out there. I don't mean to broad-brush here. I think, for example, of Kent Greenawalt at Columbia, Mike McConnell at Stanford. They are people that do really know religion. But generally you get these kind of superficial accounts. And the book is an attempt to sort of offer correction.

Scott Rae: So what would you say are some of the main things judges and courts and legislators misunderstand about religious beliefs?

Frank Beckwith: Yeah. I think one is the way in which they try to understand the epistemic status of religious belief. So, for example, Brian Leiter.

Scott Rae: For our listeners.

Frank Beckwith: Oh, epistemic, that's how we come to know things.

Scott Rae: Okay.

Frank Beckwith: And so that is when I say, for example, I believe God exists, how do I know that? I mean, I can sort of figure out if you asked me, well, where is Iowa? I can point on a map. If I say how do I know God exists, I mean, there's different ways to answer that.

You can say I have an argument for God's existence or I have encountered God in my personal life. These are different ways in which people can claim to know God. So Brian Leiter and his recent book, Why Tolerate Religion? Now, Leiter is a philosopher and a lawyer who teaches at the University of Chicago Law School. He says what makes religion different from other ways or other practices and beliefs is that religion involves categorical demands that are insulated from the evidence.

And what he means by insulated from the evidence is the evidence that we usually find in the sciences and in common sense. And I think Leiter is completely wrong. No, I shouldn't say completely wrong. He's partially wrong in this sense. So one of the things he says is that religious beliefs are never adjusted in light of the evidence.

And I think that is just historically inaccurate. So if you look at, for example, the way in which, let's say, Christians interacted with early pagan culture when the church arrives is what happens is they're confronted with the stoics and the Platonists and others. And what they try to do is they try to appropriate as much as possible from those philosophical traditions in order to be able to articulate their faith.

You find within my own background, Catholicism, the Catholic Church changes its views on religious liberty, right? In light of kind of a different set of historical realities, right? So you find, I think, one of the things that's amazing about the history of theology is that, at least within Christian theology, Christians having to confront certain challenges, either internally or externally, will sometimes clearly not abandon their beliefs but they'll find a better way to explain them or to understand them.

And so in many ways the Christian theological tradition is not unlike other sorts of traditions, intellectual traditions or what are called doxastic practices, right? In the sciences or just ordinary sense perception, right? So I think that people like Leiter have not clearly investigated with any sort of rigor how Christians at least, or even people outside of Christianity, have tried to balance faith and reason.

Scott Rae: Yeah, it seems to me that at the level of popular culture, we've redefined faith as something that actually either goes against the evidence or is insulated from evidence.

Frank Beckwith: That's right.

Scott Rae: The idea that faith could actually be something that is consonant with evidence, I think, is foreign to most of my neighbors.

Frank Beckwith: That's right.

Scott Rae: Because they would say faith, religious faith, takes over where reason stops.

Frank Beckwith: That's right.

Scott Rae: Or is no longer able to function.

Frank Beckwith: That's right. And so even someone like Thomas Aquinas talks about faith. He believes that faith and reason are consistent, but ultimately the move to faith is really the result of God's grace. And so in a way we say that we have ... we don't want to say. This is like some of the things I don't talk about enough in the book.

But somebody could have very well an argument for God's existence and not have faith in God. It's not the same thing, right? And so this is why people like Aquinas are really careful to say that an argument can't actually give you faith. That's the movement of God's grace. But, in fact, arguments can put you in a position to be more open to that grace, right?

But these sorts of issues that Christians have wrestled with are just not found in this literature in the legal profession. And it is kind of astonishing.

Scott Rae: So when it comes to matters of public policy, I think it's fair to say that there's been a long history of skepticism about religious believers trying to impact public policy for religious reasons and for religious motives.

Frank Beckwith: Yeah.

Scott Rae: There's pretty significant skepticism about religious people being involved in public policy, unless you're willing to sort of check all of your religious beliefs at the door and act like essentially a practical atheist when coming into these discussions. Because, it seems to me, we've misunderstood the notion of the separation of church and state.

Frank Beckwith: That's right.

Scott Rae: So how can a religious person be involved in the public arena and not violate the separation of church and state at the same time?

Frank Beckwith: Yeah. I think it was your professor, Dallas Willard, who once said that what's happened in the West is that the separation of church and state has morphed into the separation of faith and reason. I think it's ... I forget which one of his books, but I remember that sort of stood out, that claim.

And I think Willard is absolutely correct. So today, when somebody says, “Oh, that's just a religious argument,” what they're really saying is, “That's nonsense.” So I-

Scott Rae: Right, and therefore it doesn't count for anything.

Frank Beckwith: That's exactly right. So 15 years ago I was at the Texas Tech University Law School and I was there to talk about some of these issues. And it was a professor in the audience that held his appointment in one of the science departments. He raised his hand and he said, "All you've given us are religious arguments." And I said, "Wow, I'm relieved. I thought you were going to say they were bad arguments."

And he sort of was taken aback. And I turned to the audience and I said, "See what's going on here? He's decided to put an adjective in front of my arguments and call them religious. That doesn't have anything to do with whether they're plausible, right?" I mean, either the premises are true, or more likely true than not, or the premises support the conclusion.

That's how we evaluate arguments. We don't simply dismiss them because the speaker happens to be motivated by their religious tradition. Or even if they have religious premises, right? I mean, why should we believe that that necessarily makes it a bad argument?

Now, it turns out, I think, when it comes to this issue of how to enter the public square and without violating the separation of church and state, it's almost impossible to come up with a theory in the wholesale. You have to kind of deal with it in the retail. And what I mean by that is you actually have to go over the issues.

So something like an issue like abortion, obviously a vast majority of pro-lifers are either serious Christians or serious Jews. And there are a few nonbelievers who are very committed to the pro-life cause. There, a lot of us are motivated by our Christian faith, but we also realize that there are arguments we can present that don't rely on our theological beliefs.

Other issues are a little bit more difficult, but in a different way. So going to the example of the wedding vendor, why should he or she have an exemption for ordinary anti-discrimination law? And there I think theology is actually quite helpful. We can make a distinction between discrimination against the person. That is to say, supposing the wedding vendor says, "I will never sell a donut to a gay person." And supposing it's a community in which there are anti-discrimination laws that forbid any sort of discrimination based on sexual orientation.

I think even a Christian would say that, no, people have a ... you know, having nutrition and eating and drinking are sort of basic human goods, and you shouldn't deny that to somebody even if they live a life that you may believe is sinful. On the other hand, though, what is being asked for by the same-sex couple or somebody asking on their behalf is for the person to design a particular type of cake or item to celebrate an event that they believe is inconsistent with their religious tradition.

And so it would be like, let's say, a Jews for Jesus pastor going to a Jewish photographer and saying, "Could you come and photograph our baptisms? And we're going to put them on our website and we're going to give you credit." And he says, "No, because the people that you're baptizing are coming out of my faith and I consider this apostasy, and I don't want to cooperate with it."

So I think there, that's where theology is really helpful because you're actually instructing people, no, baptisms for us, or weddings, are more like baptisms and bar mitzvahs than they are like barbecues and baby showers. And so I think you have to kind of deal with it, as I said, in the retail, not in the wholesale. It's going to come down to different issues and having to explain it in ways that people that may not share our beliefs can understand.

Scott Rae: Yeah, I think that's a really helpful analogy to make. That brings it further down at the retail level, like you're suggesting. I don't think it's widely known, but this news piece came out, shortly after the Jack Phillips case was decided by the court, of a coffee shop in Seattle that was owned by an atheist, a very outspoken atheist.

And there were Christians who were passing out flyers for their services on the streets. And they came into the coffee shop to get a cup of coffee, and the owner saw what they were doing, became enraged at what they stood for as he threw them out of his coffee shop. And no violation and anti-discrimination laws, supposedly, and no consequences. And very little news coverage.

Frank Beckwith: Yeah, that's actually a pretty clear case of removing someone because of their beliefs, which is a violation of, I don't think there's any jurisdiction in the United States that doesn't have anti-discrimination laws that concern religion.

On the other hand, though, imagine the Christian group hired the coffee shop guy to cater an event where they were going to, let's say, be critical of atheism in a way that he thought was unfair and unjust. I would defend his right not to cater it. Because that involves special preparation, a presence there.

And it has nothing to do with whether other people will believe that he supports it. It's just the idea that you have to use your talents and your skills to support something with which you disagree. So I think that those distinctions are important.

Scott Rae: And you would say that's fundamentally different than the decision to serve them coffee.

Frank Beckwith: Yeah.

Scott Rae: Or Jack Phillips' decision, which he made available, to give him any other cake in the shop that was already made.

Frank Beckwith: Yeah. He said off the shelf is no problem. It's like my wife's a stained glass artist, and imagine somebody walks in or calls her up and says, "I want you to make a stained glass of the Virgin Mary and the baby Jesus." And she asks, "Well, what are you going to use it for?" And the person says, "Oh, I'm the pastor of the First Church of Satan and I want to put it up above the altar, and I'm going to put a little message underneath it, she will never be here. Referring to the Virgin Mary.

Well, clearly my wife would say, "Well, no, I'm not going to use my skills to honor that." And to me, that just simply makes sense. I think regardless of where one may stand on any of these questions. And I feel that way across religious lines. I would not at all be offended if, let's say, a Baptist friend of mine doesn't want to photograph infant baptism at my church because they just don't believe in it and they think that they're cooperating.

I mean, I think philosophically they have a great argument, but that's not my business as a non-Baptist to judge them.

Scott Rae: Right. So you would say there's a difference between judging the validity of their convictions and forcing them to do something that would violate them?

Frank Beckwith: That's right. You know, there's a long tradition within Christianity that you don't coerce people's conscience. I mean, even Aquinas says ... And, of course, he wasn't a raving Enlightenment liberal. He says that if, let's say, you have an opportunity to baptize the infant child of a Jewish couple, that you should not do that because those parents stand in proxy of that child and you would violate their conscience.

And, in fact, he says that if your conscience tells you not to do something, even if your conscience is wrong, you should follow it because that's sort of the deepest part of ourselves. And it sounds kind of counterintuitive on one level but, I mean, we can think of cases where ... Let's suppose that you know somebody, supposing you think that it's okay to drink alcohol. And you know of, let's say, a religious person, a Christian in particular, who thinks it's a violation of conscience to imbibe alcohol.

You don't put that person in a position where they feel as if they have to sort of serve you a drink or in some way feel as if they're cooperating with it. Even if you think they're wrong, it's a way to sort of honor their conscience even if you disagree.

Scott Rae: Yeah. I mean, the Bible is very clear about how to deal with people who have different areas of conscience. And that causing someone to stumble actually means causing someone to violate their conscience, whether their conscience needs to be educated or not.

Frank Beckwith: That's right.

Scott Rae: I mean, that's the counterintuitive part. Because if I were in Paul's place, I would have said, "Well, just reeducate their conscience."

Frank Beckwith: Yeah.

Scott Rae: But that's not what he says. He says don't put them in a place where they would then be tempted to violate their conscience.

Frank Beckwith: Yeah, that's right. About five years ago or three years ago, my wife and I were in Rome and we took a tour of the Great Synagogue of Rome. And all males that enter have to wear a yarmulke. And I wore a yarmulke. I mean, I'm Jewish. But I would have thought it just offensive if I had said, "No, I'm not going to wear a yarmulke, I'm not Jewish."

Now, there could be some religious believers, Christians included, who for some reason just don't want to wear it. But then you just simply don't take the tour, right? I mean, you have to respect people's beliefs.

Scott Rae: Yeah, and there always needs to be a walkaway provision for that.

Frank Beckwith: That's right.

Scott Rae: And that's, I think, what was so troubling about the Jack Phillips case, the Barronelle Stutzman case, the florist.

Frank Beckwith: Yeah.

Scott Rae: There was no walkaway provision.

Frank Beckwith: That's right.

Scott Rae: Because they were being coerced by the power of the state to violate their most deeply held religious views.

Frank Beckwith: Yeah.

Scott Rae: And that, I think you rightly pick up, is very problematic. And this is where culturally, it seems to me since the Obergefell decision in 2015 that we've seen, I think, the LGBT community engage more of the coercive power of government to establish their agenda.

And some have suggested even that it amounts to a form of payback as a result of treatment that they received at the hands of Christian communities in the past, for which I think we ought to repent.

Frank Beckwith: Yeah.

Scott Rae: But invoking the power of the state to force someone to violate their religious beliefs is, I think, taking on new meaning in the aftermath of the Obergefell decision.

Frank Beckwith: Yeah, we've always had in America this kind of puritan streak, right? So we have this, I don't know, this is sort of [inaudible]’s pet theory about American political and religious history. We've always been kind of libertarian and puritan at the same time, right?

So during the '60s and '70s, we often heard, and through the '80s, that the government should not force its morality, or people should not force their morality on other people through the government, which is kind of the libertarian resistance.

But we've also had sort of this puritan streak, right? That the role of the government is to make men moral, right? And so in a way the culture wars have kind of shifted sides, right?

Scott Rae: Exactly. That's exactly right.

Frank Beckwith: So you hear this kind of puritanism on the part of those that 20 years ago were making the kind of libertarian argument. So, yeah, I mean, I think it's always difficult to sort of balance these things.

Because we want to say on the one hand, supposing you take a very strong view, supposing you're very liberal on issues like human sexuality and you think that for Jack Phillips to do what he did, or to refuse to do what he didn't want to do, is an indignity to the gay couple.

But if we extend that to religious liberty, forget about setting aside the sexual orientation question, we don't think it's an indignity to the Christian who wants to hire the Jewish photographer to photograph the baptism. We don't think it's an indignity against the Christian for him to refuse, right?

We have to, I think, learn to live with the fact that in a free society people are going to come to different conclusions and it's going to be awkward, and sometimes painful. But I think that allows us to be more virtuous as a consequence.

Scott Rae: Yeah, and I think there's, I think, critique on a lot of different fronts, both for folks who have tried to impose the power of government for a particular agenda that's more consistent with Christian views and folks who are doing the opposite.

To be very careful about how we invoke the power of the state, principally to do things that we may or may not be able to persuade people in the broader culture to do. Would you share that sort of skepticism about it? Or what guidelines would you give about what is appropriate to invoke the power of the state?

Frank Beckwith: That's really difficult. It's a difficult question. I think it depends on the cultural situation where you find yourself. So there's a famous quote from The City of God where Augustine says that Christians shouldn't try to prohibit prostitution in the Roman Empire because people will either come to resent us or you'll actually not get virtue as a consequence.

Now, I'm not suggesting by quoting Augustine that therefore there's a right to prostitution. But on the other hand, though, supposing you're living in a culture where people generally are virtuous because they're inculcated in certain ways, and somebody says let's make prostitution legal because people have a fundamental right to do whatever they want with their bodies.

There you may want to say no because we realize that if we were to permit it, it may create greater temptations for people to commit adultery, and adultery is destabilizing the families. And you sort of can give those kinds of arguments. But in those two scenarios, both of them you have an awareness of both natural and divine law, and you have to sort of codify the human law in order to try to make it easier for people to be as virtuous as possible given the historical situation they're in.

So I grew up in Las Vegas, Nev., and I would never dream of starting a movement to make gambling illegal. Even though I think casino gambling has problems. I don't think it's intrinsically immoral but I do think that it is a catalyst for-

Scott Rae: It has lots of bad outcomes.

Frank Beckwith: A lot of bad outcomes, right? And it's been established. So I would never think that it would even be possible to change that. Now, I live now in Waco, Texas, where about a dozen years ago they wanted to have-

Scott Rae: What a contrast though.

Frank Beckwith: They wanted to open up casinos near, I think, off of Lake Waco. And I wrote an op-ed piece saying it's a really bad idea. I grew up in Las Vegas. There are certain consequences to this. Even though great promises are made about increasing revenues and so forth, you're actually going to make it easier for people who are tempted to gamble to do so. And that hurts families, and so forth.

And it never passed. So there's a case where you sort of have to balance where you're at and how much good you can do given your circumstances.

Scott Rae: Let's take one more case at the retail level.

Frank Beckwith: Yeah.

Scott Rae: The Hobby Lobby case where the Greens opted not to provide just a handful of contraceptive devices that were abortifacient.

Frank Beckwith: Yes.

Scott Rae: For our listeners, which means that they actually induce abortions or prevent a fertilized embryo from implanting in the womb.

Frank Beckwith: That's right.

Scott Rae: And the courts ruled in their favor all along.

Frank Beckwith: Yeah.

Scott Rae: And they specifically invoked their religious freedom in the operation of their business.

Frank Beckwith: That's right.

Scott Rae: And do you agree with the court's decision on that and their reasoning on this?

Frank Beckwith: I do. The Greens made an argument based on something called the Religious Freedom Restoration Act, which is a federal law that was passed in the mid-1990s in response to another Supreme Court case. And we don't have time to go over that.

But essentially what RFRA said to all the governments in the United States — state, federal and local — that any law that substantially burdened religious free exercise or practice, even if the law was written not to do that, in other words it's an unintended consequence, that the burden is on the state to prove that it has to have that law in order to achieve its what is called compelling interest. Which means it needs a really, really, really good reason.

And the Supreme Court had actually overturned RFRA for state laws, but it still applied to federal laws. And in this case, the court essentially said, "Well, we're not going to deal with the question of whether the part of the Affordable Care Act regulation fulfilled the compelling state interest. But we will address the second part of RFRA which says, 'Can the state get these contraceptive devices to the employees in another way without burdening the Greens?'"

And the court said yes, they could easily give people vouchers. In fact, there were groups and companies that had been grandfathered in in which that was done. And so basically the court ruled in favor of them based on that.

Scott Rae: Okay, one more question. Where do you see the most significant challenges to religious freedom coming in the next few years?

Frank Beckwith: I see it in two places. One place is the vendor issues. That is the Jack Phillips type cases, right?

Scott Rae: You think we'll see more of those?

Frank Beckwith: I think we'll see more of it. Those professions that involve kind of single contracts, right? So the difference between walking to a supermarket and buying a loaf of bread, versus hiring a baker to design a cake, right? We have analogous professions outside of that. So you have to hire a lawyer, right? A lawyer can decline based on a variety of reasons, right? Physicians can still generally do that.

I think that's one area. The other area is more theoretical. I think in the literature right now there are two kinds of challenges to religious liberty. One challenge says religious liberty isn't special. And the other is that religious liberty is not only not special, religion is irrational.

Scott Rae: Yeah, and harmful.

Frank Beckwith: And harmful. And those, I think, there, I'd like to see more Christian philosophers and theologians who don't ordinarily write for law reviews getting involved there. And I've tried to do some work in that area with my book, Taking Rites Seriously.

And I'm planning on, I've just put in for a one-semester research leave at Baylor to do a book on is religious liberty special, to sort of address the other part of that equation. And I think that's really the action is going to be.

Scott Rae: Well, I'm sorry you couldn't come reflect on these things for Religious Freedom Week at Biola this year.

Frank Beckwith: Oh, I wish I could have done it.

Scott Rae: We'll certainly invite you again in the future for that.

Frank Beckwith: I hope for that. I would love it.

Scott Rae: Frank, this has been really helpful, I think, to put in perspective sort of where we are in the discussion of religious freedom, how it's viewed by the courts and the legal system and the public policy apparatus. So I really appreciate the nuancing and the careful thought that you've given to this. This is really helpful, I think, for our listeners.

Frank Beckwith: Thank you, Scott.

Scott Rae: This has been an episode of the podcast “Think Biblically: Conversations on Faith and Culture.” To learn more about us and today's guest, Dr. Frank Beckwith, and to find more episodes, go to biola.edu/thinkbiblically. That's biola.edu/thinkbiblically.

If you enjoyed our conversation today with Dr. Beckwith, give us a rating on your podcast app and share it with a friend. Thanks so much for listening and, remember, think biblically about everything.