Should the State Still Protect Religion qua Religion? John Finnis Between Brian Leiter and the “Second Wave” in Law and Religion

Abstract

This article offers a Thomist response to Brian Leiter’s Why Tolerate Religion?, challenging his claim that religion does not merit distinct legal protection. While Leiter assumes religion to be epistemically irrational—defined by existential consolation, categorical demands, and insulation from evidence—this article draws on John Finnis’s interpretation of Saint Thomas Aquinas (d. 1274) to reconstruct religion as a basic good of practical reason. It proposes a three-tiered model of religion—as human quest, natural religion, and revealed religion—which clarifies religion’s internal structure and civic relevance. Developing this model against Leiter’s critique, this article shows that religion, so understood, can be legally protected even on Leiter’s liberal terms, through both Rawlsian and Millian frameworks. The article also extends its argument to “second-wave” law-and-religion controversies, illustrating how a Thomist framework illuminates debates about ideological establishments, identity politics, and public reason. Through original syntheses and rigorous normative analysis, this article advances a conceptually fresh and publicly accessible model of religion for law and public policy. It also speaks to pressing constitutional debates in the U.S. and Europe, thus contributing to transatlantic jurisprudence on religious freedom and the moral purposes of law. Religion still matters—and must be understood—not as conscience, but qua religion.

1. Introduction

As Marc DeGirolami (2024) has recently argued, the field of law and religion is undergoing a “second wave” (p. 37). Where first-wave scholars focused on exemptions, neutrality, and pluralism within liberal frameworks, second-wave debates concern contested political and cultural establishments—often ideological rather than religious in a traditional sense. Yet beneath these shifting concerns, foundational questions persist. Two questions, arguably at the heart of the discipline, continue to demand attention: What is religion? And what interest does the state have in protecting it still? This essay argues that even in the second wave, the liberal state requires a coherent definition of religion. The issues may be shifting, but the state—as an enduring political community—must still know what it is protecting and why it should do so.

To these ends, this essay takes as its focal point one of the most prominent rejections of religion’s distinct legal status: Brian Leiter’s 2013 book Why Tolerate Religion? (WTR). Writing in a recognizably first-wave register (DeGirolami 2024, p. 17), Leiter argues that religion does not warrant special legal accommodation. Rather, he treats it as a subset of conscience-based commitments—distinguished by traits such as existential consolation, categorical demands, and insulation from evidence—and concludes that religion should be tolerated only qua conscience, not qua religion (Leiter 2013).

Although many critiques of WTR already exist (see, e.g., Adams 2013; Bonotti 2016; Mendus 2013; Perez 2014; Urbaniak 2013; see also Leiter 2016), this article offers the first sustained Thomist response that I know of. Drawing on the work of John Finnis—whose interpretation of Thomas Aquinas (d. 1274) has significantly shaped legal and moral theory—I argue that religion, understood as a basic good of practical reason, possesses a rational structure that grounds its distinctive legal relevance. Rather than challenge Leiter’s political and moral assumptions about the liberal state, I offer a constructive normative account of religion’s place in law. At the center of that account is a three-tiered model, drawn from Finnis’s writings: religion as (i) human questing, (ii) natural religion, and (iii) revealed religion. This model not only clarifies religion’s internal rationality but also offers a conceptually fresh alternative to models such as Leiter’s.

This intervention is timely. Cases such as Oklahoma Statewide Charter School Board v. Drummond, 605 U.S. __ (2025) illustrate that liberal democracies continue to wrestle with religion’s civic significance and meaning in law. While current debates increasingly concern identity, dissent, and ideological establishments (DeGirolami 2024), they continue to rely on deeper assumptions about what religion is and whether it merits distinct treatment. Here, too, the law cannot function without an operative concept of religion. In short, the second wave still needs answers to first-wave questions.

Before outlining the structure of my argument, it is helpful to preview Finnis’s position on the legal solicitude of religion—and how Leiter engages with it, albeit somewhat hastily, in WTR. In “Does Free Exercise of Religion Deserve Constitutional Mention?” (2009), Finnis writes the following:

Religion deserves constitutional mention, not because it is a passionate or deep commitment, but because it is the practical expression of, or response to, truths about human society, about the persons who are a political community’s members, and about the world in which any such community must take its place and find its ways and means. Even the many seriously misguided religions tell in some respects more truth about the constitution’s ultimate natural (transcendent, supra-natural) foundations than any atheism or robust agnosticism can.

(p. 56; quoted in Leiter 2013, p. 88)

At the heart of Finnis’s claim lies the idea that religion is a “practical expression” of human reason—or, differently put, a “response to truths” that human reason discerns by engaging with and reflecting upon reality (Finnis 2009, p. 56). Leiter, of course, disagrees. Focusing on Finnis’s tacit affirmation of natural theology, Leiter (2013) writes the following:

[t]here are not, contra Finnis, any “lines of thought that converge on the conclusion that one should affirm a transcendent cause.” What there is, instead, is actual scientific practice that finds that a combination of deterministic and probabilistic laws describe[s] wide swaths of natural phenomena, and the recognition that some phenomena have no causal determinants at all.

(p. 90; quoting Finnis 2009, p. 49)

Leiter, therefore, concludes that one cannot “salvage an argument for appraisal respect of religion” (Leiter 2013, p. 90); that is, one cannot affirm religion as something to be morally valued. On his account, religion—being epistemically insulated from scientific evidence—is undeserving of constitutional mention. At best, it may be tolerated alongside other irrational secular beliefs.

What we have here is not merely a disagreement over religion’s constitutional status but a deeper clash between rival accounts of its rationality. Leiter dismisses religion as epistemically deficient without engaging seriously with the Thomist tradition, which frames religion as a reasoned, action-guiding good. While Finnis articulates this view across several works, it has yet to receive systematic development in direct response to Leiter. This essay offers that development. By reconstructing Finnis’s account into a succinct three-tiered model—religion as (i) quest, (ii) natural religion, and (iii) revealed religion—I aim to clarify religion’s rational structure and show how it can ground principled legal protection, even within liberal frameworks that Leiter himself accepts.

My argument proceeds as follows: Section 2 reconstructs and compares Leiter’s and Finnis’s accounts of religion, culminating in a Thomist, three-tiered model. Section 3 applies this model to Leiter’s legal arguments—particularly his reliance on Rawlsian and Millian assumptions—demonstrating that religion, properly defined, can merit legal protection even on liberal terms. Section 4 expands the analysis to second-wave law-and-religion debates, illustrating how the Thomist model retains relevance in contemporary controversies involving identity, ideology, and establishment. It concludes by reaffirming the essay’s central claim: that religion is not an irrational holdover from a premodern past, but a rational and public good that the state can still recognize and protect.

Before proceeding, two preliminary points are worth noting. First, because Leiter’s argument against legal solicitude hinges on a reductive account of religion, it is sufficient for my purposes to defend religion as a normatively distinct and rationally intelligible good within his own liberal framework. This demonstrates that the task of definition remains vital—even prior to questions about the state’s deeper moral commitments. While broader Thomist critiques of liberalism are undoubtedly important (see, e.g., Vermeule 2022), they are not the task of this essay. Instead, I focus on what even a minimally liberal state needs to understand about the nature of religion. Second, since Leiter targets Finnis directly and treats him as a representative of Thomist natural law theory, this essay focuses exclusively on Finnis’s account. Some have questioned whether Finnis’s Thomism remains faithful to Aquinas (e.g., Biggar and Black 2000). But that debate lies beyond the scope of this essay. Here, I treat Finnis as a principal interlocutor and offer a Finnis-inspired response (other broadly Thomist responses to Leiter-like positions exist (see, e.g., Moschella 2017)).

2. Defining Religion

Pace Leiter, this essay argues—cum Finnis—that the state should protect religion qua religion. To make this case, I first distinguish Leiter’s and Finnis’s views on religion. The primary aim is to assess the moral intelligibility and reasonableness of religion as a legally relevant category. I begin by examining their respective accounts of religion’s “origin” before turning to a comparison of their views on its essential character.

2.1. The “Origin” of Religion

I place the word “origin” in inverted commas because neither Finnis nor Leiter directly poses the question “Whence comes religion?” Neither offers an anthropological or etymological genealogy of the term. Nevertheless, both comment on its importance to human beings and thereby imply different accounts of its origin. Finnis’s account is the more sophisticated.

For Finnis, the importance of religion derives from its status as a basic good of practical reason. This idea is often misunderstood (e.g., Biggar and Black 2000), so a brief explanation is in order. Finnis follows the Thomistic division of human rationality into two modes: theoretical reason and practical reason. Theoretical reason concerns what is—it pertains to the nature of things, the principles of logic, and knowledge of the arts and sciences (Finnis 1998, pp. 20–23). Practical reason, by contrast, concerns what ought to be—it addresses human willing and the goods worth pursuing through free human choice. Morality thus falls within the scope of practical reason.

Importantly, for Finnis, practical reason is seen to have two functions: one pre-moral, the other properly moral (Finnis 2011e). The pre-moral function identifies the goods toward which humans naturally incline. The moral function, by contrast, discerns right action with respect to those goods. For present purposes, I focus on practical reason’s pre-moral function.

This pre-moral task involves identifying ultimate rational grounds for action (Grisez et al. 1987, p. 106). These are not derived from theoretical argumentation. One need not study biology to know why one eats, for example. Rather, practical reason engages with natural dispositions—such as the appetite for food or aversion to harm—and proposes action in light of these. For example, the awareness of hunger leads practical reason to propose that eating is to be pursued, and starving is to be avoided (see Finnis 2011e, p. 63). This proposal can be probed further. Why eat? To preserve life. Hence, practical reason’s foundational principle is here something like “life is a good to be pursued, and death is to be avoided.” Such a principle is rightly called a first principle of practical reason: it (i) proposes action, (ii) is known directly through awareness of natural inclination, and (iii) is foundational. The good it identifies—life—is accordingly a basic good of practical reason.

The same analysis applies to religion. Religion, too, can be recognized as a basic good. If so, then practical reason must be able to grasp the proposal “religion is to be pursued, and irreligion avoided” through an awareness of a natural human disposition. This proposition does not yet define what religion is (see Section 2.2), but it grounds its importance. Religion originates, so to speak, from within the structure of practical reason itself.

Leiter offers a much thinner account than Finnis. Across two pages in WTR, he explains religion’s centrality by appealing to its function of “existential consolation”—its capacity to “render intelligible and tolerable … suffering and death” (Leiter 2013, pp. 52–53). Religion, then, matters because it soothes. Leiter offers no further account of its “origin,” except to quote J.L. Mackie—via Alex Byrne (2009)—that belief in God is “a kind of miracle because it is so unsupported by reasons and evidence” (see Leiter 2013, p. 80). Hence, the contrast is sharp. For Finnis, religion is rooted in human inclinations and practical judgment. For Leiter, it is a persistent but epistemically defective coping mechanism.

2.2. The Essential Character of Religion

I now turn from origin to essence. Leiter defines religion via three features; Finnis offers a three-tiered alternative.

Alongside existential consolation, Leiter identifies two further features: (i) categoricity of commands—“demands that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives or disincentives the world offers up” (Leiter 2013, p. 34), and (ii) insulation from evidence—beliefs that reject the “ordinary standards of evidence and rational justification” used in science and common sense (Leiter 2013, p. 34). Leiter considers but rejects a fourth feature: metaphysics of ultimate reality. He deems metaphysics reducible to insulation from evidence and sees “ultimate reality” as a matter of moral value, tied to categorical demands (Leiter 2013, p. 47). In short, metaphysics collapses into the other two features.

Finnis, by contrast, recognizes a metaphysical dimension. As already seen, he defines religion as a basic good of practical reason. But this good has substantive content. His account can be reconstructed into a three-tiered structure.

At Level 1, religion is experienced as a “tension with the wider reaches of reality” (Finnis 2011e, p. 90). This evokes practical responsibility to shape one’s life in accordance with what one discerns about the cosmos. It includes questioning whether that cosmos bears any relation to a transcendent order or intelligence (Finnis 2011e, p. 89). Notably, however, no affirmative answer is required. This level represents religion as a human quest: a searching for “the truth about reality’s most fundamental shape,” and a practical response to that discovery (Finnis 2011a, p. 29; 2011g, p. 35).

Level 2 is natural religion. Religion, Finnis argues, cannot be reduced to mere questing—it must also engage with “reasons that point … to the existence of God as proper and real object of such questing” (Finnis 2011a, p. 29). Through philosophical reflection on actuality, order, and directedness, one may reasonably infer a divine source: “there exists a reality such as is everywhere referred to by the name ‘God’” (Finnis 2011g, p. 81).

Level 3 is revealed religion. Reasonable inference from natural religion leads one to seek out potential evidence of divine self-disclosure. Revelation, if judged not to contradict reason, opens a new domain. The propositions of revelation are not verified philosophically, but they are not irrational either. Their content—if consistent with reason—can be treated as morally axiomatic (Finnis 2011g, pp. 80–84). It is here especially, along with Level 2, where Finnis would recognize the metaphysical dimensions of religion.

Thus, Finnis’s three levels may be summarized as follows:

• Level 1: Religion as human questing;
• Level 2: Religion as natural religion;
• Level 3: Religion as revealed religion.

By contrast, Leiter’s three central features are as follows:

• Existential consolation;
• Categoricity of commands;
• Insulation from evidence.

Two points bear emphasizing. First, Finnis’s tiers are distinct but nested. Level 3 includes but transcends Levels 1 and 2. A religious believer may operate at any or all levels. The model is expansive, not restrictive. Second, even at Level 3, Finnis insists on rational accessibility. True religion, he argues, “holds out its moral teachings as a matter of public reason”—as “accessible and acceptable by a purely philosophical inquiry and only clarified and/or made more certain by divine revelation” (Finnis 2011g, p. 102, emphasis in original). Moral teachings on euthanasia (Finnis 2011b), abortion (Finnis 2011c), and marriage (Finnis 2011d) are, therefore, defensible by natural reason. Revelation strengthens, but does not replace, their rational basis (Finnis 2011f, p. 48).

This offers a striking contrast with Leiter’s view. What Leiter regards as insulated fideism, Finnis frames as reasoned commitment. Religion, far from being epistemically suspect, emerges as a structured moral pursuit—grounded in human rationality and intelligible in law.

3. Protecting Religion qua Religion

Section 2 compared Finnis’s and Leiter’s respective conceptions of religion, noting especially Leiter’s emphasis on insulation from evidence. If religion is indeed epistemically insulated, then it may be unfit for a state that values beliefs justified by the standards of modern science. Alternatively, we might conclude that religion is not meaningfully distinct from deeply held secular moral commitments. In either case, would religion qua religion deserve express legal protection? Leiter thinks not. This section evaluates his arguments—offered under two distinct moral frameworks (Millian utilitarianism and Rawlsian deontology)—and critiques them through the lens of Finnis’s Thomistic account. I do not reject Leiter’s utilitarian and deontological frameworks outright. It is enough to show that even on his own terms, religion may in principle warrant legal protection.

3.1. The Moral Position of Leiter’s Ideal State

Leiter assumes that a state may rightly adopt two moral frameworks: Rawlsian deontology and Millian utilitarianism. These choices are not neutral. They implicitly suggest that other moral systems lack legitimacy for a modern constitutional democracy. However, Leiter’s deeper reason for selecting these frameworks is strategic: they purportedly offer no justification for the special legal protection of religion qua religion. I take up his arguments in turn.

The first—what I call the Rawlsian Argument—derives from a well-known passage in John Rawls’s A Theory of Justice (1971). The argument runs as follows: because (i) citizens hold religious and moral convictions, and because (ii) they do not know whether these convictions will be favored in the majority or discriminated against in the minority, it follows that (iii) equal liberty of conscience is the “only principle” that persons concerned about religious and moral freedom can acknowledge in the original position (Rawls 1971, p. 207; quoted in Leiter 2013, p. 15).

Leiter then underscores that there is nothing in this argument that singles out religion as eliciting a distinct form of freedom. As he writes, “the argument, as Rawls says quite clearly, is on behalf of rights securing ‘liberty of conscience,’ which can include, of course, matters of conscience that are distinctively religious in character but are not limited to them” (Leiter 2013, p. 16, emphasis added; quoting Rawls 1971, p. 206). In this, Leiter affirms that religion gives rise to categorical demands of conscience but insists that such obligations are not unique to religion. Secular moral convictions, too, oblige conscience in similar ways. Hence, persons in the original position would adopt a general principle of “equal liberty of conscience,” not a distinct right to religious freedom.

Leiter’s second set of arguments draws on Millian utilitarianism. The first of these—what I term the Argument from Existential Consolation—addresses one of religion’s purported benefits. Leiter reasons that because (i) existential consolation may arise through both religious and non-religious means, and because (ii) it is unclear whether religion in fact produces more consolation than harm, due to its categoricity, it follows that (iii) there is no obvious reason why the state should favor, or tolerate, religion qua religion (see Leiter 2013, pp. 31–35).

However, Leiter places more weight on the Argument from Insulation from Evidence. Here his reasoning is as follows: because (i) religion entails insulation from evidence and, as such, (ii) is precluded from the only epistemically relevant standards secured through the scientific revolution, it follows that (iii) religion is unable to “promote knowledge of the truth” (Leiter 2013, pp. 54–56). He briefly entertains the possibility that a Millian epistemic libertarianism might permit “alternative epistemic methods,” i.e., “methods that purport to have epistemic payoffs,” on the grounds that this would spur the search for truth (Leiter 2013, p. 56, emphasis in original). But he quickly dismisses the idea, citing Mill’s insistence that “there is no epistemic reason for the ‘free market’ of ideas” (Leiter 2013, p. 56; quoting Mill 1978, p. 35). As Mill says, “there is nothing at all to be said on the wrong side of the question [in the case of geometry]. The peculiarity of the evidence of mathematical truths is that all the argument is on one side” (Mill 1978, p. 35; quoted in Leiter 2013, pp. 56–57). There is, Leiter concludes, no place for a “mathematics based on faith” (Leiter 2013, p. 57). Religion, therefore, is unwelcome in a Millian state.

Yet Leiter recognizes that this conclusion may go too far. Instead of demonstrating why religion fails to warrant legal solicitude, the strong epistemic claim seems to imply that religious belief is intolerable altogether. Seeking a way out, Leiter introduces a “weaker” epistemic argument. As he writes,

So perhaps there is a weaker but still pertinent response … For even if we allow that there is an epistemic reason to tolerate purportedly epistemically relevant considerations different than those that figure in common sense and the sciences, there will now be nothing in this argument that singles out religious ‘faith’ for special solicitude, since it is only one of a multiplicity of nonstandard methods that purportedly provide access to truths (consider telepathy, talking with the dead, clairvoyance, etc.). Even if there is a viable epistemic argument for toleration of beliefs insulated from the familiar standards of evidence and reasons, that argument does not help single out religious belief for special protection.

(Leiter 2013, p. 58, emphasis added)

Two things happen here. First, through dialectical argumentation (Leiter 2016, p. 548), Leiter appeals to a hypothetical weaker epistemic argument without developing its premises. Second, he groups religious belief with “telepathy, talking with the dead, [and] clairvoyance” (Leiter 2013, p. 58), suggesting that religion belongs among a range of purportedly irrational epistemic methods. As the next subsection shows, both moves are problematic—logically and morally speaking.

3.2. Responses to the Utilitarian and Rawlsian Arguments

Leiter’s arguments against legal solicitude for religion rely heavily on his definition of religion as epistemically deficient. As demonstrated in Section 2, Finnis’s Thomist account contests this framing. In what follows, I take the moral frameworks of Millian utilitarianism and Rawlsian deontology as given—not because they are above critique, but because Leiter adopts them as normative foundations for the liberal state. I argue that even within these frameworks, religion as defined by Finnis can be shown to merit legal protection.

Leiter’s Argument from Insulation from Evidence concludes that religion, because of its insulation from scientific reasoning, lacks epistemic value and thus deserves neither toleration nor legal protection. Yet, in recognizing the excessive strength of this conclusion, Leiter introduces a hypothetical weaker epistemic argument—without elaborating its structure—and then classifies religious belief alongside “telepathy, talking with the dead, [and] clairvoyance” (Leiter 2013, p. 58). Both moves are unsatisfactory.

First, consider the latter move. As shown in Section 2.2, Finnis’s conception of religion explicitly affirms its rational status. Religion, for Finnis, is not an irrational leap but an exercise of practical reason, grounded in reflection upon the world and one’s place within it. It may culminate in claims that exceed empirical verification, but that does not render them epistemically arbitrary. Indeed, even if religion produced only a “Level 1” form of self-knowledge—knowledge of oneself as a finite and responsible being—that would still constitute a meaningful epistemic good. To dismiss this as equivalent to clairvoyance is not merely unfair; it presumes the very conclusion Leiter is trying to establish.

Second, the hypothetical nature of the weaker epistemic argument undermines Leiter’s claim to have demonstrated a “credible principled argument for tolerating religion qua religion” (Leiter 2013, p. 7, emphasis in original). Leiter fails to show that Millian epistemology cannot accommodate religion. Instead, he sketches a speculative objection and leaves it undeveloped. If the goal is to show that religion lacks any claim to special protection, then an undeveloped hypothetical will not suffice—especially not when the alternative, as argued by Finnis, is that religion constitutes a basic good of human fulfilment (Finnis 2011e, pp. 89–90).

In this light, Leiter’s rejection of religion on epistemic grounds appears overhasty. If religion is understood as a rational search for transcendent meaning and moral orientation, then even a Millian calculus—concerned with human satisfaction, flourishing, and truth—should be open to its public and legal value. On utilitarian grounds, then, religion can be one among several goods (e.g., autonomy or conscience) that deserve constitutional mention.

Turning now to the Rawlsian Argument, we recall that Leiter holds religious freedom to be redundant under a general liberty of conscience. On this view, religion elicits categorical moral claims, but so do secular ethical systems. Therefore, a single liberty of conscience suffices to protect both.

This reasoning is mistaken on two fronts. First, it rests on an agnosticism that fails to engage the internal rationality of religion. Leiter (and Rawls) focus on the moral command-structure of religion while abstracting from the truth-claims on which those commands rest. As Roger Trigg notes, religion is not merely about conduct but about “a claim to objective truth” (Trigg 2014, p. 175). It involves what Finnis describes as a “response to … truths about human society, about the persons who are a political community’s members, and about the world in which any such community must take its place and find its ways and means” (Finnis 2009, p. 56). Religion, in this view, concerns the shape of reality, the moral structure of the cosmos, and the proper end of human life. These are not merely categorical imperatives but existential insights into human nature.

Second, Leiter’s argument depends on the assumption that freedom of religion and freedom of conscience must compete for legal recognition. But as Finnis argues, religion and conscience are distinct basic goods. Conscience concerns the internal act of reasoning and self-governance—“the good of being able to bring one’s own intelligence to bear effectively (in practical reasoning that issues in action) on the problems of choosing one’s actions and life-style and shaping one’s own character” (Finnis 2011e, p. 88). Religion, by contrast, involves an outward orientation toward ultimate reality and divine truth. The two are neither reducible to one another nor interchangeable. As Finnis puts it, they are “equally fundamental” and incommensurable (Finnis 2011e, p. 92).

A state concerned with justice and human flourishing should, therefore, protect both. This is not a speculative hope, but an already existing legal norm. Article 9(1) of the European Convention on Human Rights states the following:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.

(Council of Europe 2021, emphasis added)

And while the U.S. Constitution explicitly protects religious exercise in writing, secular moral commitments are granted similar protections through statutory laws (e.g., see those implicated in United States v. Seeger, 380 U.S. 163 [1965]), the Due Process Clause of the Fourteenth Amendment, and through Supreme Court jurisprudence which interprets the religion clauses of the First Amendment as applicable to secular moral beliefs (e.g., see Gillette v. United States, 401 U.S. 437 [1971]; see also Witte et al. 2022, chap. 6).

In short, contemporary legal systems already recognize that religion and conscience are distinct but coexisting domains of moral life. The law reflects this distinction not only to avoid unfair treatment but to uphold a more comprehensive vision of human dignity. If Finnis is right that religion is a basic good grounded in reason, then its legal protection is not a concession to tradition or sentimentality. It is a rational response to the kind of beings we are—persons that incline towards certain incommensurable goods.

In sum, if religion is rightly understood—as a basic good of practical reason with its own intelligible structure and moral seriousness—then even the liberal state envisioned by Leiter has grounds for recognizing and protecting it qua religion. Neither Millian nor Rawlsian principles, properly interpreted, necessitate religion’s exclusion from legal solicitude. On the contrary, both frameworks can accommodate religion’s unique contributions to human flourishing and public reason. With my conceptual and normative case now in place, we are equipped to turn to contemporary debates in second-wave law and religion, wherein the meaning of religion and its civic significance remain deeply contested. It is there, amid shifting ideological establishments, that our Finnis-inspired Thomist model may yet prove illuminating.

4. Second-Wave Law and Religion

With the main argument of this essay now complete, I turn from internal analysis to external relevance. Having shown that religion—understood with Finnis—can withstand Leiter’s critique even on liberal terms, this concluding section steps back to consider the wider stakes. The field of law and religion may have entered a “second wave” (DeGirolami 2024, p. 22), marked by concerns over ideological establishments and civic identity, but the questions at its core remain unchanged: what is religion, and why does it matter for the state? The three-tiered model developed here provides a durable conceptual grammar for addressing that question. By clarifying religion’s internal rationality, it equips legal theorists and policymakers to navigate new controversies with greater philosophical precision. And by framing religion as a basic good, it renews the case for its continued protection—still qua religion—even in a transformed cultural landscape.

Consider, for example, what DeGirolami (2024) calls the “new disestablishments,” i.e., spaces in which sub-cultures (often conservative and religious) protest against overbearing moral majorities (often secular and progressive) (p. 38). A relevant case is St. Isidore of Seville Catholic Virtual School v. Drummond, 605 U.S. __ (2025)—involving what could have been the first publicly funded religious charter school in the United States. Opponents—including Oklahoma’s Supreme Court—argued that such funding violates the Establishment Clause (Dunbar 2025); proponents claimed it vindicates educational pluralism and corrects the exclusion of religious institutions from facially neutral public-funding schemes (Gryboski 2025). What both sides often lack is a coherent account of what religion is and why it might matter civically. The Thomist framework offers precisely that: religion, understood as a basic good of practical reason, is not reducible to dogma or identity. It entails the public, rational pursuit of ultimate truth—a pursuit intelligible even to those who reject its conclusions.

This framing enables a more principled analysis of religion and school choice. Admittedly, some religious schools may promote teachings that seem morally troubling to certain parties—such as the omission of “secular” subjects, such as mathematics, in certain Yeshivas (National Secular Society 2024). But religion, viewed through a Thomistic lens, remains open to moral reasoning (Finnis 2011g). Even controversial doctrines can, in principle, be interrogated through reasoned discourse—particularly if they operate at Level 1 or Level 2 of the model. The law need not accept all religious claims as sacrosanct, but neither should it presume them irrational. Instead, it should engage them with the tools of public reason.

The same framework helps assess appeals to science as an allegedly neutral arbiter of public policy. During the COVID-19 pandemic, restrictions on religious gatherings were often justified by reference to “essential” secular activities, while religious objectors were portrayed as anti-scientific or irrational (David 2023). Here, too, the three-tiered model offers a corrective. Religion as quest (Level 1) and as natural religion (Level 2) both involve reflection on mortality and health. These are not in principle opposed to scientific knowledge; they integrate it within a broader vision of the good. Grounding religion in practical reason resists the caricature of religion as fideistic defiance and helps restore its credibility in public discourse. This is particularly resonant in traditions like Catholicism, which explicitly affirm the compatibility of faith and reason (John Paul II 1998). But as Aquinas would argue, all people—whatever their religious conclusions—share the same rational nature (see, e.g., Pasnau 2002). That shared nature makes rational engagement possible even amid deep differences.

The model also addresses the identity turn in contemporary politics, where religion is increasingly treated as one subjective commitment among many. As DeGirolami (2024) observes, “religion” is now deployed rhetorically to entrench cultural priors or delegitimize opponents (p. 29). While this reflects real disaffection, it risks collapsing religion into sheer assertion. The Thomist account resists that collapse. It distinguishes between identity claims and intelligible goods and asks the following: What reasons underlie these identities? What goods are being pursued? Such questions do not dismiss identity concerns (concerning gender and sexuality, for instance), but they insist that discourse remain rational and reason-giving. This, too, is a civic and legal contribution.

Finally, the Thomist model sheds light on the very concept of establishment. DeGirolami (2024) encourages law-and-religion scholars to move beyond the Establishment Clause and examine how establishments—political, cultural, and institutional—are formed, justified, and sustained (p. 38). He notes that the term “establishment” appears multiple times in the U.S. Constitution, including in Article VII, which states that ratification by nine states “shall be sufficient for the Establishment of this Constitution”—signaling, he argues, that the Constitution itself is a political establishment (quoted in DeGirolami 2024, p. 38).

From a Thomist perspective, such an establishment is not normatively neutral. As Aquinas writes, law is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (Summa Theologiae I–II, q. 90, a. 4). Finnis affirms this view, locating the legitimacy of legal systems in their orientation toward basic human goods. If constitutional government is to retain moral force amid civic fragmentation, it must remain tethered to publicly intelligible standards of justice and human flourishing. The three-tiered account of religion, grounded in Thomistic practical reason, offers one such standard: a rationally structured, morally serious vision of religion vis-à-vis the common good. As new establishments emerge—whether ideological, technocratic, or even theological—this model helps us evaluate their legitimacy and to insist that law continues to ask what religion is, and why it still matters.