The Ethics and Religious Liberty Commission (an arm of the Southern Baptist Convention), under its recently installed new president Dr. Russell Moore, has launched an important new site called Canon & Culture, devoted to the discussion of “Christianity and the Public Square.” Its editor Andrew Walker invited me to contribute to C & C, and my first contribution is titled “When the Government Does Theology.” Here’s a taste:
In his famous “Memorial and Remonstrance Against Religious Assessments” in 1785—one of the foundational texts of American religious liberty—James Madison remarked that every person’s first and highest duty is to God, and one cannot surrender one’s conscience even to all one’s fellow citizens combined. Therefore “civil society”—that’s his term for all of us, acting as the highest earthly political authority—can take no “cognizance” of religion, and must leave individuals and religious communities alone, free to act in matters of faith as their conscience dictates. Hence government, our political servant, obviously has no competence in religious affairs. And Madison concludes that no “civil magistrate” in any branch of government can ever be a “competent judge of religious truth.”
The Supreme Court has long endorsed this view of Madison’s, and in a number of precedents has made it clear (to quote one prominent example) that “it is not within the judicial function and judicial competence to inquire” whether any particular religious claim is true, or whether a claimant to religious freedom has relied on an orthodox view of the faith he espouses, or has even “correctly” understood the religious doctrine that lies at the base of his own legal claim. The courts must satisfy themselves that someone’s religious views are sincerely held, but beyond that they cannot venture into doctrine or theology.
Yet in case after case [on the HHS mandate], this is exactly where the intrepid lawyers of the Obama administration have ventured to go, and a dismaying number of federal judges—but thankfully, still a minority—have followed them into this forbidden territory.