October 9, 2015

No Greater Harm

Photo Credit: ldysinger.stjohnsem.edu

The ongoing war between religious liberty and homosexual liberation continues unabated in the Western world, except that it seems to grow more intense all the time. Legal measures proposed to end opposition to homosexuality are ever more draconian. The earlier Employment Nondiscrimination Act (ENDA), which kept returning in ever stronger form from its original proposal in 1997, never passed Congress when leftists could not get the protections for religious organizations out of it; has now been replaced by the proposed “Equality Act.” The new legislation not only has no religious exemptions in it but amends the Religious Freedom Restoration Act (RFRA) to say that the latter cannot be used against the Equality Act, makes “sexual orientation” a nondiscrimination category in federal law wherever race is a nondiscrimination category, including effectively mandating that rest rooms and locker rooms be open to anyone based on the sexual identity they believe they have. On side of religious freedom, lost battles do not lead to a change of heart, but to the closure of social services or other religious activities no longer possible without compromise, or where compromise does occur, to a loss of allegiance and participation by the religious constituency.

For Christians, the key point is that our primary duty is to God (Acts 5:29), not to the state, and religious freedom is a natural result of the free commitment we make to God at the beginning of faith, as was argued by the early Christians. In terms of the American constitutional order, believers appeal passionately to the constitutional guarantee of religious freedom to protect their right not to be involved with homosexual behavior, while the cultural left appeals to a “harm” principle to overcome religious freedom (and presumably to any other legal objection to requiring acceptance of homosexuality).

The most recent legal milestone in the struggle is the Hobby Lobby case (2014). While not directly connected to homosexuality, the key point in the case was what to do when public policy to promote quality of life (presented as “preventative healthcare”) conflicts with religious morality. The case was well decided in terms of the Religious Freedom Restoration Act of 1993, to which appeal was made, since the government could have paid for contraceptives and abortion inducing drugs, rather than requiring employers to pay for them. But could it not also have been decided in favor of religious freedom on a constitutional basis, even under the Employment Division vs. Smith interpretation of the First Amendment the Supreme Court now uses? This is because of the behavior of the Obama Administration in attempting to require religious believers opposed to contraception and abortifacients to violate their consciences. Many non-religious exemptions were given to the HHS mandate, but where it was clear a religious objection existed, this was pursued in court and appealed as far as possible. Thus, the law was not being applied neutrally, but was being used to penalize religious belief and practice, in violation of the First Amendment.

This then raises the question of whether conscientious objection visits harm as the government and dissenting justices claimed, on persons affected by it. Such a claim is utterly contrary to the Constitution and the legal tradition of liberty of conscience, which recognizes freedom of religion as the First Freedom, before all others. It is the first mentioned in the Bill of Rights, and it is clear that the founders considered it foundational to all others, placing duty to the Creator above the claims of civil society. The First Amendment puts religious doctrine above judgment by the state; the conscience which adheres to religious precepts is to be protected, not judged. America has historically given numerous conscience protections against legal requirements. These by their nature imply that there may be a higher authority than human law, and people should not be required to comply with human law if they believe that they apprehend the commands or principles of the higher authority. Conscientious objection from military service has been historically allowed, even though national defense seems necessary to most people to defend the nation against foreign conquest, and especially by powers bent on evil, tyrannical government. Most notably, liberty of conscience was allowed in World War II, when the nation faced an evil adversary, bent on establishing a barbaric new world, and the nation’s very life was at stake in the struggle. Conscientious objection here necessarily meant harm to the nation’s ability to defend itself, although it was not great enough to impact military capability. Had there been more objectors, the impact on military capacity would have been greater. Today, by contrast, contraceptives and abortifacients are readily and cheaply available, and certainly do not threaten national security if they are not available. However, the government could have paid for them itself rather than requiring objecting employers to pay for them (this, as noted, was the decisive RFRA consideration in the Hobby Lobby case). And even all these considerations assume that artificial birth control is necessary for health, not just an enhancement for quality of life, or even harmful to life, as traditionally thought and a reasonable person might conclude.

And so the voice of the Constitution and the tradition of religious freedom and liberty of conscience speaks clearly, as it especially spoke in World War II, that there is no greater harm than being required to act against conscience. It cannot be set aside because others are inconvenienced, offended, or pained. Religious exercise which does not directly coerce unbelievers does not harm them, even if they do not approve or are pained by religious practice. Thus, for instance, religious social services must be accepted in the form they are offered, according to religious standards, as they are primarily an exercise of religion. The government should not require that they be altered according to secular standards, whether or not there is a secular alternative available, because the services are primarily an exercise of religion.

What animates those opposed to freedom of religion and liberty of conscience in the areas where it is controversial today is that it concerns sexual morality. And here the claim is that human need should have priority over mere belief. Sexual desires are real, whereas sexual morality is only belief. Why should the morality of believers take priority over felt needs, it is claimed, even if this is a good originalist constitutional position? But this question confuses desires with needs; it is sexual desires which are real, that they are legitimate needs is as much a viewpoint as the morality that condemns them.

It is believers in traditional sexual morality, not those who disagree with them, who are being imposed on when they are required to take action in violation of their consciences. Conscience violation is wrong in terms of the constitutional order, but also in terms of a public order that attempts to accommodate different viewpoints. There is no greater harm than being required to act against one’s conscience, because it is action against what one believes to be ultimately right and wrong.

Although Christians and other traditional religious believers clearly have the superior constitutional argument in favor of liberty of conscience, and the claims of liberal/left enemies of religious liberty to override religious liberty in the interest of quality of life are finally based on their own viewpoint, not indisputable human needs, it may be that justice does not prevail in the America or other western countries, obsessed as they are with sexual liberation. It will then fall to believers to show that there is indeed no greater harm to them than disobeying God by taking the penalties that are meted out for not complying with sinful requirements, and never finally acquiescing in sin. This is not a happy prospect, but it is part of our duty as disciples of Christ.


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