Domestic Religious Liberty


August 30, 2016

Traditional Christians at a Critical Juncture – Where We Are and How to Respond – Part 1

The devastating loss of religious freedom for traditional Christians over the last two decades, barely foreshadowed by earlier religious/secular conflicts about school prayer and monuments, and occasioned largely by homosexual liberation, has left the faithful staggered. We have seen the great mass of Americans either indifferent or hostile, with hostility particularly pronounced from the mass media. The likely election of another liberal Democratic administration will mean another quantum loss of religious freedom, both through legislation and a liberal Supreme Court for the indefinite future, and so now is a good time to assess where we’ve been, see where we’re going, and anticipate how we will respond.

As a recent BreakPoint commentary noted, the battle was really decided by the Romer vs. Evans decision from the Supreme Court in 1996, which essentially said that laws motivated by opposition to homosexuality were unconstitutional. Supposedly based on the 14th Amendment’s equal protection clause, the decision was terrible because it noted, and set aside, the claim of religious conscience against contributing to homosexual behavior as the justification for Colorado’s Constitutional Amendment 2, which prohibited local homosexual rights ordinances (what today we would call sexual orientation and gender identity [SOGI] laws). It was terrible as well because of the obvious partisanship of the decision. As Justice Scalia noted, it blocked a state law which bound local laws in a very ordinary way, accorded “equal protection” (and thus immunity from adverse judgment) to a group identified by the behavior of its members (could not the same logic be applied to drug users?), and went beyond merely claiming a violation of equal protection by citing hostility to homosexuals as an illegitimate motive of the voters, thus attacking the democratic process. As this writer has noted before, the impugning of an idea in the democratic process, in this case, the belief that homosexuality is sinful (in religious terms) or evil (in secular terms), sets government away from constitutional liberalism and towards ideology, with ideas deemed to be oppressive excluded from law and society. Most importantly, the Romer decision implied the denial of what Christians now need, the right to conscientious objection from homosexual behavior.

Subsequent decisions regarding homosexuality – Lawrence vs. Texas (2003) which voided state sodomy laws, and in particular voiced disapproval of “private discrimination” against homosexual persons (now conflated with their behavior, which would rule out conscientious objection), United States vs. Windsor (2013) which struck down the Defense of Marriage Act which made traditional marriage the federal standard, and Obergefell vs. Hodges (2015), which imposed same-sex marriage on the nation – were all authoritative moral pronouncements, declaring homosexuals to be oppressed by traditional morality, not reasonable judgments from the text or originally intended meaning of the constitution. The Constitution says nothing about sexual rights, nor could the original founders or the authors of the 14th Amendment possibly have meant to guarantee sexual license outside of traditional marriage. The real reliance in these decisions was on the Griswold vs. Connecticut decision (1965, which essentially says sexual choices are too personal for external judgment) and the Eisenstadt vs. Baird decision (1972, which extended this for purposes of contraception to cover non-marital intercourse). These decisions turned morality on its head. No longer is damage to personhood and dignity the result of improper inclinations and conduct (what Christians call sin), but the result of attacks on those inclinations and conduct. Pain and humiliation at attacks on sexual conduct is sufficient to prove injustice, and this is known, as the Griswold decision said, by “a law older than the Bill of Rights.” No wonder the newly decreed sexual rights overcome all other considerations.

For Christians, our concern is not first with dignity, but with our duty to God. This is really the duty of all creatures, and the appeal (in all things in this world, not just sexual matters) to the created order and to conscience (which speaks worldwide and from antiquity in favor of sexual purity) is right in setting our case before the world. Even an unbeliever may acknowledge some of these considerations, but where this fails, our appeal has to be to the right of conscience not to take an action believed to be evil. The right not to do what is understood to be wrong is surely “a law older than the Bill of Rights,” a law not to be violated for the sake of avoiding anyone’s pain or humiliation, or by any law. The reason should be obvious to anyone in any culture at any time – namely, that it is wrong to do what one believes to be wrong.

Is it Biblical to appeal to such a general principle? Although Christians are duty bound, above whatever moral sense we seem to have, to obey God as his will is revealed in Scripture, yet Scripture itself declares that action taken in doubt, which does not proceed from faith, is sin (Rom. 14:23). Thus, action believed to be evil, is evil.

This intuition, that one should never take an action believed to be evil, was given a very well-reasoned discussion by Christopher Tollefsen in an early 2009 article. He very carefully distinguished between actions considered religiously or morally obligatory, which the state may forbid for the sake of the public good (indeed this is unavoidable, at least in principle, for a state professing religious neutrality), and religiously or morally forbidden actions which are understood to be evil in themselves, which should never be required by the state. To require such action is to require action believed to be evil. Both the state’s requirement and compliance with it therefore are evil.

It is precisely this, justifying a state requirement to perform actions believed to be evil, which is now advanced as the top priority of the cultural left. Faced with the fact that Americans have historically regarded religious freedom and liberty of conscience as goods, in addition to the general human sense that people shouldn’t take actions they think are evil, the denial of liberty of conscience is presented as a compromise of fundamental rights, when in fact no compromise is offered, and none should made in any case by the religious objector because of the moral nature of religious objection.

A good example is Columbia Law School’s Public Rights/Private Conscience Project. Its discussion of the issues throughout really advances the claim that there can be no religious or conscience exceptions where professionals or businesses are required to take action that supports sexual liberation, either in contributing to homosexual behavior and transgenderism or in contributing to abortion. In general, it is claimed that there can be no religious conscientious objection from state authority; it is also clear that the obligation to state authority is presented as a conclusive moral claim, rooted in “dignity” and “equality,” and supported by reason against religious dogma. But the entire project of Christian apologetics supports Christian revelation with arguments from reason, and the personal self-determination advanced against it is finally just as dogmatic as religious revelation, enshrined in the Supreme Court’s infamous “mystery clause,” which says that each individual has a right to define reality. As should be obvious, no law could survive self-defined reality, it would justify the vilest crimes. Instead, the legal culture of the western world uses personal self-determination to set aside any reasons advanced to support religious belief and the morality it requires. But the self-determination of believers as servants of God, and their duty to avoid involvement with unchaste behavior or the taking of innocent unborn or aged life is not similarly honored. In fact, it is clear that advocates like PRPCP are claiming that there is a moral obligation to take action believed to be evil. But this is impossible. There can be no duty to action believed immoral, or as Christians would say, sinful.

If there is, as Tollefsen suggested, an absolute right to conscientious objection, it gives “free exercise” (which is obviously an action term) some meaning beyond mere belief, which was held to be its only meaning in the Reynolds vs. the United States (1878, which prohibited Mormon polygamy) and the Employment Division vs. Smith (1990) cases. As far as civil rights legislation is concerned, the “neutral generally applicable law” which the Smith decision says overrides religious obligations is anything but neutral; it clearly teaches that the discrimination that it prohibits is morally wrong. Stanford University’s encyclopedia of philosophy article on discrimination, after discussing discrimination generally, concludes with sections on the conflict with religious liberty, claiming that it is necessary to justify why the liberal idea of “fairness” should not be applied thoughout all of society, including within religious groups. On the other hand, a recent (2016) article from Notre Dame Law Review urges that liberals consider pluralism (toleration of traditionalist religious groups) as a better strategy of dealing with traditionalists than rationalism (prohibiting what liberals consider oppressive everywhere in society), since rationalism is likely to lead to persecution of traditionalists, and the resulting intransigence of these groups. But the goal of overcoming religious exclusivism and separatism seems to be the same. What now has prominence is really a claim that the liberal conviction of what “fairness” is should be binding on everyone everywhere.

But secular fairness cannot judge religious doctrine, because religious doctrine claims a transcendent basis, and secularists cannot know that believers have not apprehended transcendent reality, and that their own nontranscendent way of knowing is the correct approach to knowledge. This means that the state cannot advance a secular vision of the good life, only maintain a basic public order, as it has in the past.

The whole life of Christians and Christian organizations must be in accord with Christian precepts, as Archbishop Charles Chaput of Philadelphia so clearly stated in his 2012 homily at the concluding mass of the Fortnight for Freedom. The same obligation to their respective religious precepts is true of Muslims and Orthodox Jews, who also claim allegiance to a supreme personal being, and even Hindus, Buddhists, or other Eastern religious devotees would doubtless consider religious obligations, since they deal with ultimate reality, as primary over all other considerations. James Madison, in the famous Memorial and Remonstrance against Religious Assessments, acknowledged that different persons understand their duty to God differently, but held that one’s duty (as a “subject”) to the supreme being is primary, above any obligation to human authority. There can be no “theocracy” in this doctrine, because there is no single religious system. The right of religious action may have to be curtailed in view of state requirements, but not the right of conscientious objection, which means that the state cannot require disobedience to an absolute religious requirement.

Religious schools, hospitals, charities, publishing houses, and broadcast organizations are all exercises of religion and must function by religious standards, which focus on obedience to God, or they should not exist at all. This means that practically they should be free from antidiscrimination laws, which pursue a far different ethic of egalitarianism and quality of life. The authors of the First Amendment Defense Act (FADA) are at pains to say that their legislation will not do this, but at least it will endeavor to maintain the status quo, relying on Justice Kennedy’s opinion in the Obergefell decision that “religious organizations and persons” have “proper protection” in “their own deep aspirations to continue the family structure they have long revered.” It is to be hoped that “seeking” to “continue the family structure” will involve the right to religious action as well as belief, since the right to believe, whether by individuals or organizations, is hardly any right at all.

The outlook for passing religious freedom legislation, even under the most favorable circumstances, will be very contentious, and really nonexistent with another Democratic administration. Therefore we must be prepared to live in obedience to God in a hostile regime. This will be discussed in a subsequent article.

One Response to Traditional Christians at a Critical Juncture – Where We Are and How to Respond – Part 1

  1. Wesbury says:

    Very sobering. Thank you for the assessment of our current legal environment and its philosophical underpinnings and ideological commitments vis a vis religious liberty. It seems that, regarding our presidential election as related to religious liberty, perhaps “a devil we know” is actually worse than “a devil we don’t know.”

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