Who’s Imposing on Who? Why Liberty of Conscience Should Be Protected

Social conservatism has a new lease on life due to the unexpected election of a Republican president and Congress. Hopefully the new administration and Congress will be able not only to reverse the anti-conscience policies of the past eight years, but put in place laws, policies, and judges who will protect religious freedom and liberty of conscience into the future, beyond this administration.

This election is not, however, as decisive a turn to social conservatism as might have been possible following the 2004 election, which also elected a Republican president and Congress. With a better outcome of the second Bush administration, it might have been possible to avoid the disastrous 2005 compromise that left in place the judicial filibuster, preventing a free hand in appointing conservative judges (only to be eliminated in the second Obama Administration giving liberals a free hand in appointing judges). A more successful Bush presidency might also have been succeeded by another Republican administration and a solid conservative majority on the Supreme Court, preventing the same sex marriage decisions and their bitter condemnations of traditional morality, overturning the abortion license, and securing a favorable hearing to the rights of conscience against the sexual revolution.

Perhaps a benefit of the Obama presidency is that the social conservative constituency and the general public can see that the predictions of the denial of religious freedom and liberty of conscience were not alarmist, but accurate. A common revolutionary strategy is to deny real intentions before gaining power, and that is exactly what the cultural left did. The downside, however, is that religious freedom has been stigmatized as prejudice, and, worst of all, this has been given momentum by Republican governors (one soon to be Vice President) and legislators caving in to pressure and abandoning measures to protect conscience, and most recently by the narrow defeat of the one governor who stood up to pressure, Gov. Pat McCrory in North Carolina.

It is in this environment that the U.S. Commission on Civil Rights report in September of this year, issued long after hearings in 2013, which this writer reported on, and after the disastrous state level defeats of religious freedom legislation under corporate pressure, condemned religious freedom as a tool for oppression. While the report resulted in swift response and rebuttal, the report remains dangerous for its leading idea that religious freedom must be edited to exclude anything which is deemed reactionary.

Since it appears that denial of liberty of conscience against sexual behavior has become the top priority of the American left, and since other substantial conservative victories have been seen since the advent of the moral struggle that began in the 1960s, conservatives can hardly rest easy after the 2016 election. A review of perennial commitments to liberty of conscience is in order, and should be continually reiterated, regardless of victories and defeats in politics.

We need to remember in doing this that our unconditional duty is to God, regardless of civil law. Duty to obey God either in what we do and don’t do does not change, regardless of time or place. Prudence may be called for under a severe regime, but this does not permit disobedience to God, regardless of the penalty.

Religious belief and practice should be protected under our Constitution, not judged, as the civil rights commission essentially did. Religious freedom is often called “the first freedom,” because it pertains to what is ultimately right and wrong. Since righteousness should inform all our actions and abstentions, other considerations are subordinate. Religious freedom is also the first freedom mentioned in the Constitution, and reasonably informs all other freedoms. Religiously required action obviously cannot be an absolute right in a religiously neutral regime, as the cases of human sacrifice and polygamy make clear, but the right to conscientiously decline religiously forbidden action should be an absolute right. As this writer has argued before, there is no greater harm than being required to take action against one’s conscience. A person required to take action against his or her will is obviously the party being imposed on, not the party requiring action. There is no conflict of rights between religious liberty and civil rights, since there is no just right to require action against conscience. To require action against conscience in the interest of civil rights (which concept itself is intensely moral) amounts to saying that there is a moral obligation to take action believed to be immoral, which is nonsense. A pluralistic society respects the religious conscience; what is being advanced instead is a pervasive secularism that denies liberty of conscience.

We must reject the argument that liberty of conscience is impractical because it would result in numerous conscience claims. Conscientious objection to laws and regulations has been practicable for years in the past, even in World War II, when it bore on the nation’s ability to survive. It can certainly be allowed with respect to sexual morality and unborn life. The only real “harm” such conscience objections cause is hurt feelings, which if allowed to overrule religious freedom, would render that freedom and any other meaningless – freedom means nothing if it can be set aside when others are pained.

Racial discrimination cannot be claimed on a religious basis only because there is no plausible claim based on the common religious authorities that can be cited. While it does involve making some judgment about the content (not the value) of religious texts, Christians, Jews, and Muslims have no plausible claim to denial of service based on race from their religious texts. On the other hand, Bob Jones University, a private religious institution, and not a public accommodation, should not have been penalized for its own interpretation of the Bible in mandating separation of the races, which certainly did not involve public service.

As Commissioner Peter Kerisnow of the civil rights commission noted, not only has religious freedom primary place among enumerated rights in the Constitution, but antidiscrimination law and policy are only inferred from the Fourteenth Amendment. He correctly noted that liberals are presenting the conflict as a conflict of rights, but there should be no conflict of rights, because religious freedom is the primary right. It should be added that the original intent of the Fourteenth Amendment was to secure racial equality, and this writer believes that protected status should not be extrapolated to other categories, as has in fact been done. While extending antidiscrimination policy to additional categories of persons is presented as an expansion of freedom, it really diminishes individual freedoms, since the individual’s choice is now pre-determined by antidiscrimination law. People must stop being afraid of the word “discrimination,” since it simply means distinguishing between things, and the freedom to choose based on that.

As this writer has argued in the past, antidiscrimination law and policy ought to be restricted to race, not only because of original constitutional intent, but also because of reason. Racial differences are superficial, a mere variety of the human species; sexual differences are profound, going to the core of who we are as human beings, even as living organisms – therefore, racial discrimination is unreasonable, whereas any kind of discrimination based on sexual reality is reasonable.

Overall, the commission’s report exemplifies nothing so much as liberal prejudice against conservative, Christian America. Religious freedom is not being advanced to make one religion dominant over others, as the report claimed, but to protect the practice of traditional Christianity (and realistically, other religions as well, since traditional sexual morality, whatever its variations, is not that different) from hostile government laws and policies. Those laws and policies, like the commission’s report, really hold that religious practice concerning homosexuality and other sexual issues is oppressive. This holding can only be a judgment by the government that religious doctrine on sexual matters is wrong. Such a judgment is not the competence of the government. Nor does religious conscientious objection to sexual behavior deny anyone “civil rights or civil liberties,” as the commission claimed, since no one has the right to require action against conscience. To claim that action against conscience should be required by the state is to claim that there is a moral obligation to take action believed to be immoral, which, as noted above, is ludicrous. Evidently, the “full promise of America,” which the commission majority thinks is threatened by religious freedom, involves all Americans accepting the personal behavior of everyone else – the ideal of a totalitarian state.

Happily, the report included extensive rebuttals by commissioners Peter Kerisnow and Gail Heriot. It also elicited strong responses from America’s religious leaders and their organizations this fall. Archbishop William Lori of Baltimore, Chairman of the United States Conference of Catholic Bishops Ad Hoc Committee on Religious Liberty, released a statement which noted that Catholics in their social services, which serve the poor and vulnerable, “do not seek to impose our morality on anyone, but neither can we sacrifice it in our own lives and work.” Catholic social services cannot involve contributing to sin, and so, it might be added, cannot involve paying for contraception and abortion inducing drugs for their employees (which really involves paying for other people’s choices believed to be immoral), nor can they provide children for homosexual couples, since that is to affirm sinful activity and place children in sinful relationships. Against the commission’s identification of religion with past justifications for racial inequality, Lori noted the religious motivation of the leaders of the mid-twentieth century civil rights movement, and, it might be added, the abolition movement against slavery in the nineteenth century. The Southern Baptist Ethics and Religious Liberty Commission (ERLC) correctly noted that the commission’s report is “a stunning devaluation of religious liberty as a preeminent American principle” grounded in the First Amendment, denying the right to act on beliefs, and replacing this constitutional protection with “status based liberties and identity politics” (which being status based, deny equality to achieve it) only inferred from the Fourteenth Amendment and really existing in statutory law, not constitutional law. Further, the “status based liberties” which really occasioned the report, namely the sexual orientation and gender identity (SOGI) categories, are not even protected statuses in federal law.

Early in October, a joint statement by a wide range of religious leaders, Catholic, Evangelical, Mormon, Jewish, Muslim, and other religions addressed President Obama, House Speaker Paul Ryan, and Senate President Pro Tempore Orrin Hatch concerning the report. It condemned the report for stigmatizing and marginalizing millions of religious Americans and their organizations, essentially for demanding a national orthodoxy about the relation of religious faith and antidiscrimination doctrine. The leaders said that “a robust and respectful debate over ideas is not something harmful to be demonized … Slandering ideas and arguments with which one disagrees as ‘racism’ or ‘phobia’ not only cheapens the meaning of those words, but can have a chilling effect on healthy debate over, or dissent from, the prevailing orthodoxy. Such attacks on dissent have no place in the United States where all religious beliefs, the freedom to express them, and the freedom to live by them are protected by the First Amendment.”

Other alarming features of the report’s recommendations were pointed out in subsequent criticism by the religious press. The Catholic News Agency admonished that the religious conscience should not be banished from the public square, and that the commission had in fact called for the repeal of the federal Religious Freedom Restoration Act of 1993 (RFRA), which would result in a dramatic shift in religious freedom jurisprudence. The Hobby Lobby decision, for instance, was based on RFRA, and all the HHS mandate cases, such as that of Little Sisters of the Poor, depended on it. The state must not judge conscience convictions, as the commission is essentially attempting to do. The conservative World News Daily reported shortly after the commission’s report that another disturbing recommendation was to amend state level RFRAs to exclude conscientious objection on any status based issue, and that future state level exemptions should protect only religious beliefs, not religious action. But action which violates beliefs is obviously immoral action, since it is believed by the actor to be immoral. There is thus no way to protect religious beliefs without protecting religious action. The Christian Post approvingly noted that the October 7 joint statement by religious leaders quoted President Obama’s speech, given as a U.S. Senator from Illinois, in which he observed that one cannot object to injecting “personal morality” into public policy debates, since law inescapably involves morality, and many honored American reformers did just that.

There is thus no “peaceful coexistence” envisioned by the report, but only the commission’s judgment that religious consciences are oppressive. The commission proposed not “peaceful coexistence,” but a requirement that everyone agree with the cultural left’s vision of what is and is not acceptable behavior. It is obviously traditional religious believers, not those their sexual morality condemns, who are being imposed on. And, again, this is because it is believers, not the devotees of the sexual revolution, who are being required to take action they believe is wrong.

To return to the initial point of this article, the recent election results, which undoubtedly the commission’s majority did not expect, are only a reprieve for traditional religious believers, not a secure deliverance. We should make every effort to secure religious liberty for the future through religious freedom legislation and court appointments. President-elect Trump is willing to lead on making conservative judicial appointments, but not on the currently most contentious issue of religious freedom legislation that protects against SOGI requirements. We must bear firmly in mind that the view of the civil rights commission is now the view of the Democratic Party, and a matter of strong conviction for that party. During the Cold War, the Italian electorate knew better than to elect the communists, however articulate they were, and however honest their local governments were by contrast to the Christian Democrats. But experience has shown that the American electorate does not know better than to elect a Democratic President and Congress. This is entirely possible, and could come as early as 2020. If that party ever does come to power, it will enact its anti-religious commitments into law.

Christians and other social conservatives must have arguments to defend religious liberty against a bitter assault. We know that the most important duty of anyone is to obey God, but especially important today is to point out that is wrong to require action against conscience, because that is to require immoral action. It is traditional religious believers who are being imposed on, not their adversaries of the cultural left.