Presidential candidates are being asked to pledge to “protect religious freedom in full for all Americans” and as well as to “advance international religious freedom as part of American foreign
policy.” The authors are Thomas Farr, the first director of the State Department Office of Religious Freedom, and Carl Moeller, president and CEO or Open Doors, an organization dedicated to helping persecuted Christians around the world. Their concern with freedom of religion abroad is understandable, as is the greater commitment they’d like to see from the State Department. One can debate how much of a priority international religious freedom ought to be for the U.S., and the extent to which the cause has served as a cover for protecting Christian missionizing. There can be no doubt, however, that the Obama-Clinton State Department has not been interested in giving it a high profile.

Where things go awry is on the domestic side, where the candidates are asked to commit to the following:

FIRST,
that religious liberty in full is the birthright of every American, as
recognized by the First Amendment. It entails the right to believe,
worship, and practice in accord with one’s faith, subject only to the
limits imposed by the U.S. constitution and the Bill of Rights.  The
right of religious freedom must be applied equally to all religious
communities in America, including Christians, Muslims, Jews, Hindus,
Buddhists, and others. At the same time, religious freedom does not
mandate belief, but protects the right not to believe.

Religious
freedom includes the right to employ religious arguments, or
religiously-informed moral arguments, when contending for or against
laws and policies, such as laws designed to protect the unborn and
traditional marriage, or to relieve poverty and increase economic
opportunity for the disadvantaged.

Religious
freedom includes the right of individuals and of religious communities
to engage in religiously-motivated charitable works. It also includes
the right of individuals and of religious communities not to be forced
to participate in, or to forfeit their employment because of refusal to
participate in, activities that deeply offend their religious
conscience.

SECOND,
that I will nominate to the U.S.federal bench judges who are committed to protecting for all Americans the religious liberty rights described above.

What can it possibly mean to commit oneself to a right to employ religious arguments to change laws or public policies? Citizens are free to use whatever arguments they want; the question is whether religious arguments are entitled to any deference. Should the courts–or, for that matter, a legislative body–accept an argument against same-sex marriage or abortion based on Scripture?

Individuals and religious communities are likewise free to do whatever religiously motivated charitable works they like. What’s lurking in the background here is the issue of government funding. Is there a religious right to use public money to proselytize and to discriminate in hiring if a “charitable work” is involved?

As for a “right of individuals and religious communities” (institutions? organizations?) to be exempt from participating in activities that deeply offend their religious conscience, how far does that right extend? Should members of historic peace churches have a right not to pay that portion of their taxes that go to the Defense Department? Or, as WaPo reports, should nurses be permitted to refuse to care for women after they have had abortions? Pro-life blogger Michael Sean Winters thinks not. Is such a right being asserted in the pledge?

And anyway, what kind of “right” are the candidates being asked to pledge to exactly? If this is a pledge that acknowledges that religious free exercise operates within constitutional bounds, then it is necessary to acknowledge the Supreme Court’s current writ that neutral laws of general applicability trump all Free Exercise claims. In which case, “the religious liberty rights described above” must be understood as severely limited. And the pledge to nominate would mean pledging to stay away from judges like Antonin Scalia, the jurist most responsible for curtailing religious freedom rights in our time. I rather suspect that that’s not what Rick Santorum had in mind when he became the first presidential candidate to sign on.