Christian Conscience, Christian Institutions, and Behavior Based Antidiscrimination Doctrine

on July 17, 2016

Despite the intense concern of faithful Christians, and serious effort at legal protection in the last two years, results have been frustrated by corporate coercion, media hostility, and judicial moral decrees imposed as legal judgments. The severe legal threat to the free exercise of traditional Christianity continues to grow. At risk is really all of Christian life, which must be separate from sin, and from compromise with sin. This includes not only Christian merchants and professionals offering their services to the public, but also Christian social services, such as educational institutions, hospitals, schools, and publishing and broadcast organizations. Less directly, but still within the sights of the secularist enemies of religious liberty, is the internal life of families and churches. The strongest weapon against Christianity today is antidiscrimination law and policy, particularly as pertains to homosexuality, but more generally in any matter related to sex. Beyond that, a prevailing doctrine of inclusivism is hostile to exclusivist religious requirements.

As this writer noted in an article last year shortly before the same-sex marriage decision, the legal attack on Christian sexual morality, which shares with other religions and the human moral sense in general from antiquity the belief that sexual activity outside of marriage is defiling and evil, began in the 1960s and 1970s. The U.S. Supreme Court then declared, based on its observation of the concern for freedom in the Bill of Rights, and its own intuition of a morality superior to the Bill of Rights, that private decisions about sexual matters are just too personal for adverse judgment. Originally, in the Griswold vs. Connecticut decision (1965), sexual autonomy was concerned only with the use of contraceptives by married couples, but revolutionary 1970s decisions extended this personal autonomy to contraceptive use in non-marital intercourse and the right to abort an unborn child. Sustaining the latter right in the 1992 Planned Parenthood vs. Casey decision, it was found that “intimate and personal choices” are part of the “liberty” guaranteed by the 14th Amendment. The conflict with religious liberty has come when “civil rights” laws extend this immunity from adverse judgment beyond state action restricting sexual behavior to private discrimination against sexual behavior. People wonder why sexual rights, not mentioned in the Constitution, supersede religious rights, which have a primary place in the First Amendment. The Griswold decision tells us – sexual rights are known by the intuition of Supreme Court justices to be “older” than the Bill of Rights.

The deck has been stacked as far as the gravest threat to religious freedom is concerned, the issue of homosexuality, since the 1990s, when the Supreme Court made clear its attitude that opposition to homosexuality in law is illegitimate. In the seminal Romer vs. Evans (1996) case, advocates of religious liberty emphasized that their desire, in passing Colorado’s Amendment 2, prohibiting local homosexual rights ordinances, was to protect the religious freedom of merchants against having to contribute to homosexual behavior. This is the very issue with which the nation is struggling today, and it is sobering to realize that the court decided against religious liberty years ago on this issue. The law placed a civil disability on no one; it simply precluded a protected status for homosexual behavior. In line with the earlier Planned Parenthood vs. Casey (1992) decision and its “mystery of life” clause, which found an individual right to define reality as one wishes, the court confused behavior with personal identity, and found the law disadvantaged homosexuals as a class.

Yet there is no fixed class of homosexuals – anyone can engage in homosexual behavior, and anyone can consider himself or herself homosexual, with or without behavior to confirm it. The Casey decision’s “mystery clause” can of course not be applied consistently, to do so would make any behavior legal. The result of the Romer decision is not equality of persons, but privileged behavior, behavior against which there can be no adverse judgment. As Justice Scalia pointed out in his dissent, the decision means that there can be adverse moral judgment against many things, but not against homosexual behavior. While the term “special rights” is used to point out what is wrong with the concept of homosexual civil rights, this writer believes that it does have a somewhat suspicious sound to it, and might be used to refer to any protected status– “privileged behavior” might be a better term, as it more precisely conveys the real problem, and highlights that inequality is masquerading as equality.

It is in the second decade of the twenty-first century, the most notable and publicized infringements of religious liberty have happened to private businessmen and professionals. Those in the wedding industry, or related occupations such as florists and bakers who, among their other business, service wedding ceremonies, are legally unable to decline to provide goods and services to homosexual ceremonies where there are sexual orientation and gender identity (SOGI) laws, or in other cases just sexual orientation antidiscrimination laws. The plea that it is only sexual behavior, not homosexual customers that is being refused service is rejected by homosexual activists and the courts with the claim that sexual behavior is the distinguishing feature of this minority group, and cannot be discriminated against any more than black skin.

As this writer has argued before, protecting personal behavior from adverse judgment is not a reasonable function of a legitimate government. It cannot be done impartially; some behaviors must be condemned, and makes nonsense of the basic moral lesson of civil rights law, that people should be judged by character (which is known by behavior), not by immutable characteristics.

But beyond the immediate and pressing crisis of conscience for individual Christian businessmen and professionals, there is the looming, and rapidly developing crisis for Christian organizations which serve the public. Old federal civil rights law protected these organizations against claims of discrimination on the grounds of religion, but not in other categories. Thus a Baptist institution may restrict members and employment to Baptists, but not to whites or men. Yet for a religious institution, any characteristic might be an important religious requirement; there is severe infringement on religious liberty if the only religious characteristic that has protection from antidiscrimination law and policy is church affiliation. In particular, doctrines and practices concerning sex are of prime importance to major religions. To say that there is no protection from antidiscrimination requirements on sexual matters is a gross infringement of religious liberty. Yet this is exactly what the cultural left and its lawyers do say– that the only religious freedom protection these organizations have is with respect to belief, not action.

The current crisis facing Christian schools in California has been widely noted recently in the mass media and in IRD articles late last month. What is particularly disturbing about the proposed law is that while it focuses on state aid in the form of “Cal grants,” religious institutions can be sued for “discrimination” against sexual orientation regardless of whether they receive state aid. This is part of a larger picture in which Christian education is attacked because it involves requiring students and faculty to abstain from sexual behavior that the Scripture declares to be sinful. Recently, in Canada, the long embattled Trinity Western University continues to have difficulty in opening a law school because its covenant proscribes (among many other things, including many non-sexual things) homosexual behavior. This despite the fact that Trinity Western, religious schools in California and generally, are entirely voluntary. Most people attending these institutions can be presumed to agree with their religious and moral ethos– the only “discrimination” being practiced is against behaviors, not against people. It is, as the president of William Jessup University in Sacramento, California has said, Christians who will be denied the Christian education they desire if these schools are compromised or forced to close.

Similarly, the Christian dating sites noted in Darryck Green’s article earlier this month were certainly not discriminating against (the fluid class of) homosexuals or any other class of persons, only against homosexual behavior. Intended to advance a traditional Christian understanding of marriage, they were reasonably exercises of religion, not services to the general public, a fact that did not save them from being required to accommodate what Scripture calls sin.

Closure will be the only alternative open to these Christian organizations if there is no legal recourse left and no practical way to avoid accommodating sin. The requirement that Christians not contribute to sin establishes this. It is clear from Jesus’ words in Matt. 18:7 – “Woe to the world because of the things that cause people to stumble! Such things must come, but woe to the person through whom they come!” Similarly, for Christian organizations, there must be separation from sin. This is clear from various New Testament epistles – “Therefore, come out from them and be separate, says the Lord. Touch no unclean thing, and I will receive you” (II Cor. 6:17); “Religion that God our Father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world.” (Jas. 1:27) – “Do not love the world or anything in the world. If anyone loves the world, love for the Father is not in them.” (I Jn. 2:15) (all NIV renderings).

Christian catechisms have expanded on this. Question 99 of the Westminster Larger Catechism asks what things are necessary for a correct understanding of the Ten Commandments. However, two of the things it notes are applicable to all of God’s binding commandments in Scripture. They are:

Answer 5 – That what God forbids, is at no time to be done; what he commands, is always our duty; and yet every particular duty is not to be done at all times.

Answer 8 – That in what is commanded to others, we are bound, according to our places and callings, to be helpful to them; and to take heed of partaking with others in what is forbidden them.

Similarly, the Catechism of the Catholic Church, sections 1868-1869 states:

1868: “we have a responsibility for the sins committed by others when we cooperate in them:
– by participating directly and voluntarily in them;
– by ordering, advising, praising, or approving them;
– by not disclosing or not hindering them when we have an obligation to do so;
– by protecting evil-doers.
1869: Thus sin makes men accomplices of one another and causes concupiscence, violence, and injustice to reign among them. Sins give rise to social situations and institutions that are contrary to the divine goodness. ‘Structures of sin’ are the expression and effect of personal sins. They lead their victims to do evil in their turn. In an analogous sense, they constitute a ‘social sin.’”

It is very obvious from this that Christians and Christian organizations are not to compromise with sin. Organizations must maintain standards which do not tolerate sin in their internal functioning, in the lives of their personnel, or in their relation to the world.

Christians must make sure that the general public understands clearly that religious liberty requires the right to discriminate against behaviors, which are not the same as persons. Elite culture has rejected this from the beginning of the conflict over sexual morality, but it is important for the kind of country and cultural engagement we will have in the future that this distinction be clearly and repeatedly stated. Given that we may well get another liberal Democratic administration in the 2016 election, and resulting permanent (generation or more) liberal majority on the Supreme Court, and that even Donald Trump has shown himself cool to social conservatism, there is a strong likelihood that the religious liberty protections that are needed to protect the Christian subculture which has developed in response to the secularization of the twentieth century will not only not be granted, but that antidiscrimination laws and rules which prohibit Christian individuals and organizations from acting according to their conscience will be put in place.

Then is when faithful Christians must not compromise, but rather will have to become an underclass, or stated differently, internal exiles within American society. Those who do compromise are not only sinning through compromise, as noted in the Biblical and confessional passages, and therefore absolutely wrong, but also will likely come to accept sin as righteousness, because in routinely violating their beliefs, their beliefs will change. It is, of course, this for which the cultural left hopes. There is nothing to be gained in advancing the kingdom of God by compromising with sin. It is both absolutely wrong, and self-defeating.

Churches and families, the next step beyond the destruction of Christian organizations, will not be immune; the teaching and enforcement of Christian doctrine and morality, which clearly involves discrimination against homosexual and other sexual behavior, will be attacked and perhaps prohibited there too.

At this point, the Christian subculture will have been destroyed. But Christian life must go on, without compromise to the state’s requirements. As already noted, it will simply mean that Christians become an underclass in American society. It is vital to true discipleship that individuals not give in and take action that complies with sinful requirements, despite the personal disaster that may ensure, and that organizations cease functioning rather than comply with sinful requirements. This in particular means that Christians never support, either individually, or organizationally, activities that do not conform to Christian sexual morality, or retain on staff persons in disagreement with the doctrines that the organization is committed to, or participate in or cooperate with compromised organizations.

This commitment is simply a matter of obeying God as he requires. But is also the only strategy that has any hope of gaining eventual accommodation. The very logic of liberty of conscience is that one can never take an evil action, even when the law requires it. If we can take state required action we do not want to take without sinning, then we certainly should comply with the law. It is not uncommon to have to take action one doesn’t want to take. Only if an action is sinful should we disobey the law. In secular terms, we might say that only if an action is evil should we disobey the law. And there is no one really who disagrees with that.

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