Domestic Religious Liberty


religious conscience

December 31, 2016

Should Only Religious Beliefs Be Protected? The Untenability of the Belief/Action Distinction

Liberal/left attempts to set aside religious freedom in order to legally mandate acceptance of homosexuality have depended heavily on the belief/action distinction, originally advanced by the nineteenth century Supreme Court in upholding the illegality of Mormon polygamy. Under that doctrine, which virtually narrows religious freedom to the vanishing point, one cannot be penalized for religious belief, but can be penalized for religious action. Laws that mandate the acceptance of homosexuality, and now, transgenderism, clearly require action contrary to religious doctrine.

But it is hard to see how the belief/action distinction can stand, because penalization of the religious conscience so clearly implicates religious belief. This is seen particularly in cases where religiously forbidden action is required by the state (as distinct from religious action, such as polygamy) which is what civil rights law often involves. It could be argued that all law is expressing a morality, and that all law condemns as immoral those who violate it. But civil rights law is intensely moral – it is strongly based on belief that discrimination against a protected category of persons is morally wrong, evil, and oppressive. In effect then, civil rights laws which protect personal behavior related to sexual orientation and (now) gender identity (SOGI laws) are claiming a moral obligation to take action which is believed by many religious persons to be immoral.

It should be obvious that one should never take an action believed to be evil; this is the principal behind conscientious objection, and yet violating this is precisely what SOGI laws require. The law thus impugns itself, requiring action believed to be evil. If this requirement is justified with the claim that conscientious objection is motivated by prejudice, and the state is not penalizing belief, but only failure to act against belief, then at a minimum, the state is no longer neutral about beliefs, but clearly regards them as oppressive and wrong. At a maximum, it is penalizing belief. Any efforts at re-education similarly attack belief; it is hard to see how legally mandated sensitivity training is not a penalization of belief.

As this writer has argued recently, it is now social liberals, not social conservatives, who are “imposing their views” on society. The codification of social liberal values into SOGI laws, with penalties and perhaps re-education for those who violate them, amounts to an imposition of values held by the moral intuition of part of society on the rest of society. This is not an issue of “equality,” because SOGI categories are not based on any immutable characteristic such as skin color, but on personal behavior, and personal behavior cannot be protected against discrimination, since “equality” would mandate that the vilest crimes be legal. People should not be conflated with their behavior. In Christian terms, people are not identical with their sinful behavior. Nor does widespread adverse judgment against personal behavior demonstrate injustice. It is only by the sensibility of our cultural elite, who are judged to have right opinion, that popular condemnation of particular personal behaviors can be judged wrong. By the same token, personal behavior that is made a basis for protected status stigmatizes people who believe that the behavior in question is wrong.

To repeat, discrimination must be practiced against personal behavior, otherwise the principle of equality would legalize all behavior. Nor is there an objective way to single out “harmful” behavior – what is “harmful” is ever arguable. Only immutable characteristics, which the individual cannot control, and, this writer would argue, the superficiality of such characteristics, should be a basis for protected status. The natural male/female distinction is not a reasonable basis for protected status, since natural sexual identity is deeply embedded in living creatures, and thus is a reasonable basis for discrimination.

It appears that social liberals are coming to understand the untenability of the belief/action distinction, and directly attacking belief. President Obama’s (2016) state of the union address made changing belief that homosexuality is wrong a national ideal, while presidential candidate Hillary Clinton said frankly that religious beliefs have to be changed. Such attacks on the religious belief, to say nothing of the religious practice, of millions of Americans is unprecedented, and a major threat to freedom. As John Adams said in a remark conservatives frequently quote, the Constitution assumes “a moral and religious people – it is wholly inadequate to the government of any other.” Yet social liberals have tried engineer, in large measure by court decisions above the reach of the people, a new moral order in which the state instructs the people in moral precepts. The Supreme Court’s homosexuality decisions – Romer vs. Evans (1996), Lawrence vs. Texas (2003), United States vs. Windsor (2013), and Obergefell vs. Hodges (2015) – all involve attacking the religious and moral motivation of voters and elected officials in the name of a higher law – not the Constitution, but the ideal of self-determination the Court thinks the correct moral order ought to be based on.

Similarly, in the United Kingdom, the national government is considering an “equality oath,” pledging all public officials to the principle of “equality,” and “British values.” This requirement is a direct attack on Christian doctrine and morality, which condemns sexual activity outside of the natural marriage of man and woman. As the Evangelical Christian Institute noted in reporting on the proposed oath, it is essentially a religious test for public officials, similar to those that gravely disadvantaged non-Anglicans in the British past, and prohibited by the U.S. Constitution.

If the current crusade to give protected status to sexual orientation and gender identity can be shown to be an attack on religious belief, as this writer believes that it easily can, then it clearly violates the First Amendment to the Constitution. It requires action against belief, and thus penalizes belief. “Sensitivity training” clearly penalizes belief, more or less as a prison term for having held the wrong belief would. “Free exercise,” under liberal/left analysis, no longer can be given a meaning in either belief or action. This eviscerated right is certainly not the “first freedom” it is so often proudly identified as being, in which duty to our creator precedes that to civil society, and as is proper for questions of ultimate right and wrong. It would not be recognizable to James Madison, who emphasized this primary allegiance to God in his famous Memorial and Remonstrance against Religious Assessments, which states:

“every man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance”.

If the requirements of SOGI laws can be understood by the general public as a penalization of religious belief (because people are required to act against their beliefs), then perhaps the First Amendment’s religious freedom guarantee can be made effective after all against those aspects of SOGI laws’ statutory requirements that mandate facilitating homosexual or transgender behavior. Certainly the supporters of such laws would concede that these laws are intended as an attack on prejudice and discrimination, and thus are attacks on belief. But it is not the role of the government of a free society, and certainly not a government under the First Amendment, to attack beliefs and values and prescribe a moral order, but to protect the religious and moral commitments of its citizens. Reasonably, as the “first freedom,” it informs all others.

Serious analysis shows that such an understanding of the First Amendment would not threaten racial integration, although it might (and in the view of this writer, should) threaten antidiscrimination requirements concerning religion and sex. Racial differences are the only ones of the antidiscrimination regime that are truly superficial, and thus can be publicly understood as irrational. As it happens, racial discrimination is the only kind with no plausible basis in the religious authority of Christians, Jews, or Muslims. In America, it would thus not generally be allowed by the primacy of the First Amendment.

A regime of religious freedom, in which religious beliefs may not be attacked by the state, and the belief/action distinction cannot be used to require action against belief, is a regime in which the state has a very limited ability to prescribe a moral order. The society ruled by such government could be very religious, very moral, as the American founders intended. But that would depend on the populace. The current separation of belief from action allows a legal and cultural elite to attempt to render religious beliefs “dead letter,” while they prescribe life in the practical world. As Christians, we of course want to see a righteous society. Religious freedom and liberty of conscience allows that to happen from the bottom up. Religious rule from the top down, with society ruled by correct doctrine whether people like it or not, must await the real and visible reign of Christ.

One Response to Should Only Religious Beliefs Be Protected? The Untenability of the Belief/Action Distinction

  1. david c Wold says:

    i find the points very interesting and agree, society , in the west, have reached a level of ‘we – the authorities’ (it be federal, state or Church) sets the ‘right’ belief and will punish anybody who does not comply. We see people ‘not fit’ for positions to uphold the law/doctrine etc.. due to person does not fit in with ‘right’ standard of their belief. Belief should be ‘belief’ and action should be ‘action’ and lawful. Who is not equal in the eyes of God ?

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