The Rise of Religious Liberty: Made Possible by the Decline of Public Morality

As part of the Rights & Humanities Annual Lecture series, the Franklin Humanities Institute (FHI) and the Duke Human Rights Center@FHI welcomed Katherine Franke, a professor of law at Columbia University and the director of the Columbia Center for Gender & Sexuality Law. Dr. Franke delved into the increasingly prevalent theme of wins in politics that have rewritten constitutional rights. She argued that recent cases related to gun rights, abortion rights, and COVID measures are examples of a larger agenda to transform and privatize the idea of “public good.”

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Recent court cases can be contrasted with historical cases to find stark changes in the values of the court that move away from protecting collective interest and towards prioritizing the individual. In The Federalist Papers, James Madison put public good at the forefront of the role of the government with the declaration that “[…] public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value […]” Collective welfare was a foundational value of the government, and in the early 20^th century, the court upheld the state’s authority in protecting public interest. In Jacobson v. Massachusetts (1905), a case of individual objections to the mandated smallpox vaccine, the court sided with Massachusetts, acknowledging the state’s power to protect public health.

However, beginning in the Reagan era, the nation saw a shift in values away from federal functions towards privatized services. In Burwell v. Hobby Lobby (2014), Hobby Lobby objected the Affordable Care Act’s requirement for contraception. The court ruled against the Obama Administration’s work for the public interest to have access to health care as well as to increase gender equality in the workforce. Similarly, in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Catholic Church sued the state for its limitations of gatherings during the pandemic. The court sided with the Church, completely undermining the power of the state in protecting public health. This ruling essentially undid the decision of Jacobson v. Massachusetts that had originally given the state the power to act in public interest. These are just a few examples of the many recent cases that prioritize individual interests and limits the power of public good.

With these trends in mind, Prof. Franke made a call to the left to invest in the development of a long-term policy agenda to build a state that holds compelling interests in protecting the common good. Her thought-provoking talk encouraged conversations about the deeper meaning of court rulings and the nuanced definition of public good.

The Rights and Humanities Annual Lecture Series is jointly sponsored by the John Hope Franklin Humanities Institute and the Duke Human Rights Center@FHI. The series was launched in 2019 to address the links between ideas of rights and the humanities - and to more fully explore the intellectual possibilities of housing a human rights center within a humanities institute. Prof. Franke's lecture, as well as previous lectures, can be watched on YouTube at https://www.youtube.com/@FranklinHumanities.