To those who can remember the world beyond the current zeitgeist, what now passes with the general public for mainstream sensibilities seems bizarre. These include the displacement of the natural family of man, woman, and their offspring as the normal human condition, the acceptance of homosexual behavior and same-sex marriage – indeed decreed by the courts rather than consented to by the public – and the appearance of “gender identity,” or self-defined sexuality and identity as the new, compelling cutting edge, backed by much of the American establishment. All these things that would have been considered outlandish just ten to twenty years ago. However, much of the power of the revolution against common sense and traditional morality has been due to the ability of the revolutionaries to dominate the language used; specifically, “hurt feelings.”
Who would have thought, just a few years ago, that hurt feelings would count as legal harm, especially hurt feelings at the conscience convictions of others? And yet this is exactly what is being seriously advanced as a legal standard today. Simply by replacing a term – hurt feelings – that refers to personal pain at someone else’s adverse judgment, which in a free society ought to be a personal matter rather than a matter of public concern, with a high sounding legal term, “dignitary harm,” today’s sexual revolutionaries have managed to make an injury that people would historically have been ashamed to advance and would have been considered foolish into a claim that has to be taken seriously and engaged if we want to avoid its devastating consequences.
And the consequences will be – indeed already are – devastating. They are devastating because what millions of religious Americans continue to consider absolute, non-negotiable obedience to God in all of their lives will prevent them from participating in a wide range of business opportunities and professions where they may be required to accommodate homosexual behavior.
Many cases in which this has already happened were outlined last month in the Family Research Council’s latest edition of its report on hostility to religion in American life. After reviewing the older, twentieth century type of attacks on religion in the public square (e.g., public prayers and monuments, private prayer and religious clubs in public schools and universities), the report then extensively reviews cases during the last twenty years in which religious believers are required to accommodate what they understand to be sin. These include lawsuits against bakers, florists, and photographers for not facilitating homosexual behavior, legal attacks against non-profit organizations such as adoption agencies, employers objecting to the HHS contraceptive/abortifacient mandate threatened with ruinous fines, religious hospitals sued for declining to perform abortions, religious schools and their morality codes for students and faculty under attack, legal problems for counselors declining to facilitate homosexual behavior or transgenderism, penalties for marriage registrars declining to perform same-sex weddings, churches facing legal requirements that they hire and retain persons who violate or disagree with their sexual standards, and restrictions against the expression of the Church’s message concerning sexual morality.
Albert Mohler, in an article for the Gospel Coalition late last month, identified “dignitary harm” as “the biggest single threat to religious liberty … in our immediate future.” It likely is the greatest threat, but to understand the magnitude of the threat, which is indeed great, we need to remember it involves nothing more than making hurt feelings an important consideration in law. Sherif Girgis, one of the authors of the new book on the current legal attack on religious freedom reviewed by Mohler and discussed in this writer’s most recent article, also discussed the concept of “dignitary harm” in two articles from the first half of 2016.
Girgis maintains that “dignitary harm” flows from a Gnostic view of the person, which holds that people are not embodied selves, but bundles of “desire and consent” that possess a physical body for whatever purpose they choose. Individuals give their own life meaning. Anything contradicting that meaning is violence, a denial of the proper self. Behavior is now understood as part of identity. Whereas in the past people were understood as agents responsible for their personal behavior, which could be criticized, now personal behavior is understood as part of an inviolable personal identity. The public must therefore accept the self-defining self on its own terms. The obvious problem with this is that accommodating the self-defining self over considerations of external reality necessarily must favor some self-definitions over others.
Girgis points out making hurt feelings a legal harm will require people to cooperate in and even voice approval of things they consider immoral, lest others be offended. Also, actions taken against behavior deemed immoral, however indirect, will be held to be violence in the social fabric, an effort to prevent people from realizing themselves. The concept of “dignitary harm,” making hurt feelings into a legal harm, would “shut off the springs of moral and political reform right at the source.” Girgis believes that key to attacking this threat to conscience – which by its nature should be the most important consideration in life – is attacking the new Gnosticism, and its dualistic doctrine of human nature, with a Biblical doctrine that people are “embodied selves” made in the image of God.
In a second article for the Yale Law Journal, Girgis asserts what should be obvious, and Americans until the last decade would have recognized as obvious, that “a claimant’s moral or religious integrity matters in itself.” This is obviously so, however badly anyone is pained. But Girgis also points out that freedom for disfavored consciences spurs society on to reconsider unquestioned assumptions and perhaps to reform on the basis of that reconsideration.
Girgis also importantly notes the common liberal assertion that conscience exemptions “enforce” traditional morality on society. Yet it is service providers, not customers or clients, who are being coerced. He also notes as well that the concept of “dignitary harm” says people are harmed by conscience refusals with the message that their activities are immoral. But the generation of stigma is a two way street. Providers are as much stigmatized as being oppressors by denials of the right of conscience as customers are stigmatized as being sinners by refusals to provide an objectionable service. Further, he notes, freedom to give offense is as central to freedom of worship, religious education, and evangelism as it is to the public provision of services. This writer would also observe that denying liberty of conscience because of the stigmatizing message that it sends is really an attack on freedom of expression, which liberals, at least in this country, concede cannot be abridged.
Another article from the first half of 2016 in the libertarian blog Pro Libertate illustrated the lunacy of making hurt feelings a legal harm. In discussing the dangers of punishing intangible harm, the article references the case of an Oregon school teacher having undergone a mastectomy and now identifying as a man who was not called by her desired masculine pronouns at work. She won a $60,000 settlement against the school district simply by threatening to take her case the Oregon Bureau of Labor and Industries, which had fined Christian bakers Aaron and Melissa Klein $135,000 for declining to bake a cake for a homosexual ceremony. Essentially, the hurt feelings of persons deemed oppressed is being made the supreme legal consideration. The religious conscience claims a transcendent basis, as well as the obvious realities of human sexual nature; those who attack it claim nothing more than hurt feelings with no appeal to reality.
The same source also cites Christina Carmody Tilley of Northwestern University for an academic treatment in favor of the idea of “dignitary harm.” Tilley claims that self-defined identity must be affirmed by others, or grievable harm has been inflicted. She appeals to Ninth Amendment, which provides that rights not mentioned in the Constitution are in fact guaranteed by it, to find a right to personal dignity that is infringed by the adverse judgment of others. But as this writer noted in an article in 2015 citing Justice Hugo Black’s dissent from the decision in Griswold v. Connecticut (which made exactly this appeal) the Ninth Amendment simply says that the federal government does not possess all the powers not denied it by the Bill of Rights. It is not a blank check from which courts may find new individual rights.
An ominous possibility for the future is the election of a Democratic president and majority in Congress, who would likely enact legislation along the line of the proposed Do No Harm Act. This was proposed in response to the Hobby Lobby decision, which relied on the federal Religious Freedom Restoration Act (RFRA) to protect Hobby Lobby from having to pay for abortifacients for its employees. The proposed legislation would prohibit appeal to RFRA for any conscience claims that caused “dignitary harm.” In real terms, it would prohibit use of RFRA to protect religious consciences against the hurt feelings of those traditional sexual morality condemns.
The likely principal goal of requiring people to violate their consciences is to change beliefs by requiring action one believes is immoral. But it is also true that while the desire not to be told that one is immoral may not be proof, it is certainly an indicator of a guilty conscience, that one in fact agrees with the accusation. As this conflict progresses, we should use the expression “hurt feelings” as often as possible, and avoid as much as possible the left’s term, “dignitary harm.” And in all cases we should emphasize that is wrong to require action believed sinful or evil.
This writer is convinced that the current crisis of conscience resulted from declining faith in God, and thus religious duty. People focus on their own happiness, and how the state can best accommodate their happiness, not on their duty to God or at least some other metaphysical reality. In this regard, Girgis quotes legal scholar Michael McConnell in his second article to the effect that it is from the division of spiritual and temporal authority advanced by the early Christian church that ideas of liberty of conscience and limited government developed. Girgis says that “religious freedom is the root and civil society the outgrowth” that protects private association. We cannot expect great sympathy for the religious conscience if many people do not have religious consciences, and indeed think the religious conscience is harmful. But they must be made to understand, both through argument and noncompliance with sinful requirements, that their moral intuition should not be binding for all society.Google+