Brett G. Scharffs is Director of the International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law at Brigham Young University Law School. This post is excerpted from a chapter in the forthcoming book in the Routledge ICLARS Series on Law and Religion: Law, Religion, and Freedom: Conceptualizing a Common Right, W. Cole Durham, Jr, Javier Martínez-Torrón, and Donlu Thayer, eds. (Routledge 2020).
This post is part of an ongoing Series about Religion and the Rule of Law.
Setting aside the immediate exigencies of the coronavirus crisis, we are living at an important time for religious freedom, and that is not necessarily a good thing. It seems quite apparent that in recent years many nations are in the midst of a world-defining struggle between two dramatically different visions of the state and its relationship with its people. The contest is between what is sometimes called monism, which is inclined towards various types of statism that emphasize the state’s monopoly on legal power, and dualism, the idea that the state’s domain over the peoples’ lives is in some important way subject to limits that lie outside and beyond the state itself.
Dualism is an old idea. The Gospel of Mark famously reflects a worldview at least 2000 years old in Jesus’s answer to a lawyer who asked whether it was lawful to pay taxes to the ruling state: “ Render unto Caesar the things that are Caesar’s, and to God the things that are God’s.” Mark 12:15-17 (KJV).
The idea that state authority makes certain claims upon us and divine authority makes other claims upon us reflects the notion of dualism: the state is subject to limits (procedural, structural, substantive, jurisdictional) on the scope of its own authority. The key characteristics of a modern dualist understanding is that the state is justified in large measure by its success in protecting individual liberty and that government is subject to specific substantive limitations such as the obligation to protect human dignity, human rights, and the rule of law.
Dualism versus monism
Political systems can be founded on either dualist or monist understandings of the scope of the state’s power, jurisdiction, and authority. For the Romans, Caesar was a god, so there was no dualism between the things that are Caesar’s and the things that are God’s. In the fourth century A.D., however, the world-defining struggle between the Roman Empire and emergent Christianity led, at least in Europe, to a persistant dualism. 1
To be sure, when we posit dualism, we do not have the answers to all questions. The important question is: what are the limits to the state’s power, including the proper boundaries between religion and the state, between conscience and state power, and between individuals’ inalienable rights and the legislative and regulatory demands of the state?
Answering this question responsibly requires ongoing navigation, but one answer is necessarily rejected: the answer given by statists of all varieties, be they religious or secular, that there are no limits on the state’s power or jurisdiction. Such an answer asserts that rights are really just positive law enactments, in other words gifts bestowed by the state upon individuals, and that these gifts that can be taken as well as given.
The Universal Declaration of Human Rights (UDHR) arose from an international project at the end of World War II, in a time of vivid memory the perils of strong state monism—in Japanese imperialist atrocities and a Nazi regime under which state power trumped conscience and the government invoked emergency powers to overcome claims to political and civil rights. Declaring that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world,” UDHR reflected the dualist intuition that there are interests weighty enough to be constituted inalienable rights—things the state is obliged to respect and protect for human beings, who are all “born free and equal in dignity and rights.” All people are born with human rights—endowments based upon our human characteristics of reason and conscience and our capacity to have genuine regard for each other.
Perhaps the unease many feel and express towards human rights is based upon an erosion of the strong commitment to dualism that underlays not just the human rights worldview, but most of western history.
History of Dualism
In the early 5th century, Augustine argued that although Christianity had been adopted as the official religion of the Roman Empire, the Church should be concerned with the mystical heavenly city (the New Jerusalem), rather than with earthly politics. Thomas Aquinas articulated another version, differentiating between eternal law (by which God governs all creation) and natural law (human “participation” in the eternal law, discovered through reason). Martin Luther also presented dualism in his two kingdoms doctrine. And dualism is expressly evident in the philosophy of John Locke, who “esteem[ed] it above all things necessary to distinguish exactly the Business of Civil Government from that of Religion and to settle the just Bounds that lie between the one and the other,” to prevent “Controversies that will be always arising between those that have, or at least pretend to have, one the one side, a Concernment for the Interest of Mens Souls, and, on the other side, a care of the Commonwealth.”
By the time of the French and American Revolutions, this dualism was an important, defining feature both of revolutions and of how the revolutionaries conceptualized them.
Elements of dualism are evident in the United States Declaration of Independence, in its assertion of the “self-evident” truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The right to revolution arises when governments fail to respect this dualism, when the basic unalienable rights are not recognized and protected.
The prohibition of a national state church, as well as the guarantee of the free exercise of religion articulated in the First Amendment to the United States Constitution further reflect this dualism.
Dualism is such a strong and axiomatic aspect of Western Constitutional systems that it is hardly seen for what it is—a remarkable rejection of the monist alternatives. Such a rejection covers various forms of statism, including: states that may find themselves in a strong alliance with a particular religion, such as Russia and the Russian Orthodox Church, or as exemplified increasingly today by Hindu Nationalism in India; states who assert a posture of control over religion, such as China and its five recognized, state-sponsored and controlled official religions; states dedicated to the strict limitation of religion, such as the Soviet Union was; or even the obliteration of religion, as seen in Soviet-era Albania.
My suggestion is that today we are engaged in an epochal struggle between monism and dualism, between statist ideologies that do not recognize any power above and beyond the state, and dualist ideologies that base state legitimacy in large measure on the extent to which the state respects rights that precede and do not depend upon the state for recognition. The crisis engendered by the coronavirus is merely the latest development that throws this struggle into stark relief, since a global pandemic by its emergency nature, will call forth national emergency powers that are at or near the zenith of state power.
Human Rights and Attacks on Dualism
The challenges to dualism today come from a variety of places, both right and left. This includes non-Western voices who assert that human rights are simply a Western invention and imposition. These are typically not the voices of the powerless, but of the powerful, who want to promote various nationalist or statist projects. Many of those voices are more specifically targeted at religion or religious freedom itself.
A more specific and sustained attack on religion and religious freedom comes from those who find it and its defenders to be backwards, benighted obstacles of an equalitarian society dominated by non-discrimination norms. One progressive strategy is to promote these non-discrimination norms to the exclusion of the freedom norms that also exist in human rights—not just freedom of religion, thought, conscience and belief, but also freedom of speech, association, and assembly.
In September 2016, Martin R. Castro, Chairman of the U.S. Commission on Civil Rights, wrote in the report ‘Peaceful Coexistence” that the phrases “religious freedom” and “religious liberty” were “code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, [and] Christian supremacy. . . . [T]oday, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality.” One of the report’s principal findings was that “[r]eligious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights.”
Not claiming that religious freedom is never used rhetorically by racists, homophobes, Islamophobes and Christian supremacists, there is something startlingly reductive about simply equating religious freedom as some sort of secret code for discrimination.
In the United States the struggle over gay rights, including gay marriage, has led to a sustained and deliberate effort by many in the progressive left to pit religious freedom against non-discrimination, with “discriminators” reflexively labeled as “homophobic.” Many who would seek conscientious exemptions from participating in gay marriage—including religious groups, religiously-affiliated institutions (such as religious universities), religious business owners, government employees, and even religious employees of secular businesses—are under tremendous pressure to be silent in all respects with any opposition to the sexual rights agenda.
It is apparent that the primary value in these efforts is equality, the primary legal mechanism for achieving equality is non-discrimination law, and the definition of discrimination rests on a kind of radical, hedonic subjectivism.
Official Ideology: Public Reason
If the official ideology of dualism is some variation of natural reason and natural rights (or perhaps Kantian deontology or Lockean / Rawlsian social contract theory), then official ideology of monism is public reason, including a tendency to discount conscience, significantly or altogether.
The first public reason theorist was Thomas Hobbes, who was clear that the sovereign spoke in the voice of public reason, and subjects gave up their claims of conscience in exchange for the protection offered by the sovereign from the state of nature where life is nasty, brutish and short. Public reason always makes the same initial primary normative move: differentiating between public reason and private reason and crediting the one while discrediting the other, at least in matters of public life.
The problem for those who value conscience is that it often speaks in registers that count paradigmatically as “private reason.” Consider the metaphors used for conscience—a prick of the heart, a feeling in one’s gut, a powerful internal or sometimes external voice that declares to us as to Martin Luther, “Here I stand, I can do no other.” These are not public reasons; they are private reasons. And public reason is committed to the marginalization of private reason.
Consider the debate over religious exemptions for doctors performing abortions or public officials performing marriages. From a public reason perspective, there is no good reason to provide an exemption. For a statist, the key consideration may be a value such as non-discrimination, which demands that everyone be treated equally and no special treatment should be afforded to those with special or idiosyncratic religious or conscientious views. Arguments like these are familiar in statist systems.
It is true that public reason may claim to value religious freedom or conscience (perhaps based upon an argument from the “original position”), but it is also likely public reason will interpret religious freedom in a minimalist way. Consider, for example, the manner in which Justice Scalia treated religious freedom in Employment Division v. Smith, prohibiting laws that specifically target religion but permitting those that burden religion, even severely, as long as they are “general” and “neutral” in character. General and neutral laws are a classic public reason formulation of the type of regulation that is legitimate, but as we learned from the Smith case, this does not result in a robust protection of either conscience or religion.
Is it possible to sustain a dualist view of state and conscience in the absence of the underpinnings of religious understanding that created and have carried that view? If dualism is, in some significant measure, created by a religious view of the world—to a religious epistemology or even ontology—then, if those religious foundations are rejected altogether, the intellectual tools with which to resist monism, including its manifestation as statism, may be lost. The bracing question is this: Without a dualist commitment to an understanding of the state as having its very justification based in part on its success in protecting certain inalienable rights that precede the state, do we have the intellectual, social or political resources to resist statism?
 See generally Steven D. Smith, ‘The Plight of the Secular Paradigm’, (2013) 88 Notre Dame Law Review 1409.