By: James R. Beattie, Jr.
There is an uneasy alliance between our national commitment to
liberalism and our equally fundamental commitment to religious
liberty. Liberalism is a political philosophy that presumes
the central importance of individual agency in the justification of
social or governmental arrangements. . . . Assuming religious
lifestyles are properly characterized as illiberal lifestyles,
conflict arises where our commitment to individual agency insists
that we tolerate the illiberal lifestyles of others. Faced
with such conflict we have to ask ourselves the following difficult
question: At what point do the failures of religious lifestyles to
commit to a respect for individual agency strip those lifestyles of
their presumed protection under the principle of
liberalism? At what point can, and should, we stop tolerating
the intolerant? . . . The primary task of this essay is to suggest
where the line between governmental tolerance and intolerance of
religious lifestyles should be drawn, and, thereby, to outline the
proper contours of our notion of religious liberty. . . . We shall
see that our current national commitment is to a “thin” conception
of religious liberty, which protects religious belief, but not
religious practice—a conception of religious liberty we inherit
primarily from the writings of John Locke. . . . I will argue that
there is a more adequate conception of religious toleration
available within the liberal tradition. This notion of
religious toleration is derived primarily from John Stuart Mill’s
work On Liberty. . . . Mill’s brand of liberalism
does supply us with a principled way to distinguish
tolerant from intolerant actions. Actions that harm others are
intolerant actions, and only they are subject to government
regulation. The practices of religious adherents that do not
harm others, in either their physical integrity or assignable
obligations, should not be subject to government control. . . . I
hope to show that this conception of toleration avoids the main
pitfalls of the dominant understanding that we have inherited from
Locke. . . . I will apply these competing conceptions of
religious toleration to the Supreme Court’s current jurisprudence
concerning the Religion Clauses. I hope to demonstrate that
many of the alleged problems in this area are avoided, if not
solved, by shifting our notion of religious toleration from Locke
to Mill.