Assessing Christian Engagement in an Increasingly Hostile Society

John Inazu, Professor of Law at Washington University in St. Louis, discussed how Christians can live with the values promoted by the state and the wider society now hostile to Judeo-Christian morality at a Faith and Law presentation April 29 on Capitol Hill.

Inazu said that the moral conflict in society has centered on abortion and homosexuality, but has now moved to transgenderism. “It’s not just about sex anymore. It’s a controversy about transcendence, individualism, autonomy, and technology.” The focus has to this point been on legal and policy considerations. The religious liberty conflict associated with this cultural conflict focuses on white, conservative Christians. Nevertheless, other groups not working with white conservative Christians also tend to agree with them on the moral issues in the controversy, namely black Evangelicals, Muslims, and Orthodox Jews. Inazu called these groups collectively “the traditionalists.” There is an inability on the part of the traditionalists to successfully engage the debate. Some discussions “lack traction.” The “Jim Crow” analogy, that ties traditional morality to racial discrimination has become a serious problem for religious freedom, Inazu said, a problem exacerbated for religious institutions and individuals by the Bob Jones University vs. the United State decision in 1982, in which a religious claim to racial discrimination was lost at the Supreme Court. Applying the same principle to persons and institutions opposed to homosexuality and other departures from traditional sexual morality has long been feared and anticipated by social conservatives, and this is compounded by the erosion of the constitutional doctrine of the free exercise of religion resulting from the Supreme Court’s Employment Division vs. Smith decision in 1990, which said that the right to free exercise of religion is no defense against “neutral, generally applicable” law.

White Christian traditionalists do not see Jews and Muslims as allies, Inazu said, and non-Christians and non-whites are not engaged in the cultural conflict, even if they agree with traditional morality. But they are not aligned with the liberal/left on these issues either, Inazu claimed. To be more successful, religious liberty efforts need to be made with many groups, with sensitivity to their outlook. The claim of “persecution” isn’t persuasive to many people, Inazu said, because the denial of civil liberties to conservative white Christians doesn’t seem extreme enough, and additionally, they are seen as the historic oppressors. On the other hand, homosexual and pro-abortion activists see their movements as supportive of the personal liberty, and are now working closely together. A new development is the LGBT alliance with big business, and may mean that the Left will lay aside its hostility to big business, and decisions like the hated Citizens United decision in 2010.

While Inazu said that traditionalists should not mute the content of their religious expression, he held that they lack a successful strategy for cultural engagement. The conduct/orientation distinction with respect to homosexuality, in which homosexually attracted persons are acceptable in Christian communities if they are celibate, is important theologically, but he said it isn’t accepted in the wider world. It is not accepted by the Supreme Court.

Yet as this writer pointed out in a question, the Christian claim to the conduct/orientation distinction cannot be given up – homosexual activists have declared sexual behavior to be the aspect of homosexual identity which is due protected status because of public hostility, just as black skin color or a female body is due protection because of past inequality. Christians cannot accept this – it is an attack on Christian morality, which declares homosexual behavior to be sinful, and thus the state is directly attacking Christian morality. Conscience should be protected by the First Amendment, which the founders recognized as primary, and should inform all other freedoms. If advocacy and use of the claim of liberty of conscience is not successful, then the logic of a conscience claim is that one must take the legal penalty for violating the law to obey conscience, rather than violating conscience and taking an evil action.

Inazu held that a desire to return to “good ole days” is not helpful. Abraham Kuyper’s proposal of “sphere sovereignty,” with non-state institutions in society held to possess a legitimacy and authority of their own independent of the state, and in particular, with Christian components of society conducted by Christian standards, and functioning beside non-Christian components, is theologically grounded, he maintained, but not likely to be accepted in a wider society which recognizes no theological basis. But again, it is hard to see how Christians avoid insisting on concepts like “sphere sovereignty” or “subsidiarity” for Christian institutions, since these institutions exist to be a service to God, and cannot take actions that compromise with sin.

Overall, Inazu said, religious liberty is in decline. Every legal victory for religious liberty since the Smith decision has been a patchwork success, he said. Despite rhetorical support, few people outside the white conservative Christian community see the need for the protection free exercise of religion would afford; their beliefs and practices are not at risk. (It might be added, however, that other traditionalists do not seem to be targeted by lawsuits). Opponents of religious liberty have gained traction since the Indiana fiasco, in which Indiana’s newly passed Religious Freedom Restoration Act was amended under intense corporate and mass media pressure to exclude conscientious objection to homosexual behavior. Religious liberty is now placed in scare quotes. Inazu said that while Douglas Laycock of the University of Virginia has made principled efforts to defend liberty of conscience against the crisis of extending antidiscrimination doctrine to sexual liberation, he is “baffled” at the unsophisticated efforts in state legislatures. The result, he said, is a public relations disaster.

Nevertheless, Inazu maintained, we are not at “the functional end of religious liberty.” An important factor, he maintained, is that the Supreme Court continues to protect religious groups. It is in groups that religious freedom can be found. There is a question in court cases, however, as to what qualifies as a “church” and a “minister.” The Supreme Court recognizes the right to differ. Other rights will be helpful in defending religious liberty, especially freedom of association, which the Obama Administration tried to suggest was adequate to protect religious groups in Hosanna Tabor case. All nine Supreme Court justices disagreed, and insisted that protection of clergy was based on the free exercise clause, and thus is a constitutional religious liberty protection. Inazu maintained that other rights have more rhetorical appeal to the general public at this time, because they focus on the value of difference, whereas religious liberty focuses on exceptionalism. It has to be asked, however, why religious liberty isn’t also based on “difference;” it involves protecting all religious groups, not just white Christian conservatives. A key point in the rhetorical war is that religious freedom is not being given to orthodox Christians, as it is being given to other groups. Inazu noted that in Roberts vs. the Jaycees, the court said freedom of association must be protected either by a claim of “intimate association,” or “expressive association.” Other kinds of nonexpressive association have no protection from laws that infringe them. Expressive association is the best defense using freedom of association, Inazu claimed, but even that didn’t save the all-male Jaycees. The free exercise of religion and freedom of association doctrines are in disarray, but freedom of association is more likely to be rehabilitated, he thought.

Inazu noted that a striking feature of traditionalist institutions is their insulation from the transformed culture and morality of the wider society. As a result of this, some religious institutions have been embattled for some time, he said. There is now rapid change in the front lines of this war. Having fought battles over monuments and public prayer in recent years, traditionalists are now “outflanked on their fallback positions,” which depend heavily on having organizations which enforce traditional morality. These institutions are now under attack, with the claim that their free exercise rights pertain only to belief, not to conduct requirements. Traditionalists will be increasingly alone, Inazu said. There may well be a loss of tax exempt status for traditionalist institutions, a closing of schools, a closing of access to business and the professions to traditionalists due to requirements to accommodate sexual behaviors and identities condemned by traditional morality. Inazu said he does not feel like a lone holdout Japanese soldier in this war. There are many other traditionalists in America. He noted that the “loudest and least thoughtful voices” advancing sexual liberation are now the most heeded in the wider society. Moderate voices among the homosexual and transgender components of society will not come to the table, because extremists say they have won.

To more successfully engage the threat to the practice of Christianity, Inazu believes that Christian groups should stop pursuing exclusively short term objectives. Christian foundations have much money to invest, but they do not invest in supporting Christians in areas visible to the popular culture. These areas have been thought to be lost by many Christians. But Inazu feels that they need to be engaged. The Christian hip hop artist LaCrae, for instance, is seen by the popular culture, and so is Hollywood.

Inazu presented a realistic, somber picture, but not a picture of hopelessness. The significant number of Christians, unexplored and unrealized possibilities, and greater sophistication in engagement seemed to be his recommendations. Nevertheless, it is also essential that both the state and society understand that obedience to God is the most important thing in life for Christians, for which any penalty will be taken, and that there will be a resulting loss of talent and service to society if the religious conscience is not accommodated. Most important is God’s sovereignty and providence. It is our duty to serve him in this conflict to the best of our ability.