Helen Alvaré: “Religious Freedom as Freedom”

By Maren Hendricks March 8, 2024

“How did religious freedom become religious unfreedom?” asked Helen Alvaré, the Robert A. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University, and recent speaker for BYU Law’s Law & Religion Lecture Series. Alvaré explored why religious freedom is increasingly considered to infringe on freedoms concerning health, peace, equality, protection of the vulnerable, the autonomy to make important personal choices, and the ability to seek happiness. These are liberties that support flourishing individuals, families, and communities; why the tension with religious freedom?

Historically, there has been convergence between the state and religious goals about human freedom. Alvaré observed that a gap has emerged between state and religious norms, a disparity that has contributed to religious freedom being viewed as discriminatory and inequitable. Yet she identified the main cause for religious freedom’s plight as “lawmakers’ changed convictions about what human freedom consists in and its sources.” In recent decades, the law has increasingly viewed religious conviction as a threat to freedom.

Religious freedom has been most constrained in the areas of contraception, abortion, same-sex marriage, and transgender identification. Alvaré expressed disappointment that much of this constraint is not tied to any empirical data. Instead, “lawmakers’ intuitions or personal predilections about freedom are playing an outsized role.” She contrasted lawmakers’ boldness in restricting freedom in the sexual expression and family life arenas with their concurrent hesitancy to moderate freedoms in other areas, where they make “dramatically fewer sweeping claims about what human freedom is.” Alvaré surmised that this acknowledges “diminishing common ground” on the issue of restricting freedoms in other arenas. This, she suggested, can provide hope for reconnecting religious freedom with freedom.