The cultural left has had to struggle in the last decade with the fact that the American public has a spontaneously favorable attitude toward religious freedom. Many Americans understand that the American colonies were founded by different groups of people seeking a secure place to practice their religion, and that the Constitution guarantees the free exercise of religion. The term “conscience” – by its very nature our moral sense – seems hard to argue against. This is a serious problem for the mandatory acceptance of religious and moral relativism. Traditional religious believers are not willing to acquiesce in abandoning their religious commitments.
The response has been to counteract the term “religious freedom” with the term “discrimination.” In this way the leftist partisans can exclude from religious freedom whatever they want. A sympathetic legal profession has produced much case law that excludes the Left’s social engineering efforts from the adversary judgment religious freedom would mandate. The recent Masterpiece Cakeshop and Asher’s Bakery decisions are hopeful signs, but the crucial issue is still very much in play.
Scholars from Baylor University and the Religious Freedom Institute are preparing a defense of religious freedom as including liberty of conscience. This freedom is best understood as the legal right to decline actions contrary to a person’s religious or moral precepts, and in a more qualified sense, to take actions as well. Their proposed document, the American Charter, was recently posted online by critics, and is found in a recent critical article by Frederick Clarkson from Religion Dispatches. Essentially – and this is a standard leftist response to religious objections to their legal requirements – Clarkson claims that the American Charter alters the historic American doctrine of religious freedom to protect the unworthy motives of Christian conservatives.
This claim cannot be sustained. What Clarkson and the cultural left propose is that the idea of religious liberty exclude conscientious objection from the sexual revolution. But this cannot be done. Marriage, sexual behavior, and family structure and relations are all intimately bound up with most major religions. Religious believers cannot be required to accept values and behaviors which their religious authorities condemn without violating religious freedom. Nor can they be required to act against the dictates of their consciences without violating religious freedom. While there is precedent for restricting religious action (indeed, any government must have some restrictions), religious freedom cannot be limited to mere belief, since the First Amendment specifically refers to the “free exercise” of religion, using an action word to describe the freedom guaranteed.
Religious liberty is the first freedom, so recognized by the American founders. It is the first liberty because it recognizes an area of life outside of state control, and is thus a threat to any tyrannical system, or as we would say in our day, any totalitarian or authoritarian system. Conscience cannot be stigmatized, it is our sense of right and wrong, and so the state is in no position to require that we violate it. Quite obviously one should never take an action one believes to be evil. Ethicist Christopher Tollefson has argued that indeed, there should be an absolute right of conscience (declining action), although, of course, no absolute right of action can exist. This accords with the statement of Scripture that whatever does not proceed from faith is sin (Rom. 14:23).
But it is not true, as Clarkson maintains, that the right of religious action as well as belief was not part of the founder’s intention. James Madison’s Memorial and Remonstrance against Religious Assessments quite clearly says that our duty to God supersedes our duty to the state.
As this writer noted more than two years ago in an article concerning Georgia’s religious freedom bill (vetoed by the governor) Madison declared in the Memorial that:
It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance”
Contrary to claims the American founders did not intend freedom from law requiring conscience violation, Madison quite clearly considered that religious freedom includes the right to act according to one’s conscience convictions. His original version of the First Amendment stated:
The civil rights of none, shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.”
While it is often observed that religion and conscience can say anything, and so complete freedom of either would make every person a “law unto himself,” it is also true that the law can say anything. Who is willing to argue that the fugitive slave law should have been obeyed? Or should it have been broken? Laws which provide for conscientious objection from legal requirements take account of the fact that human law is fallible and may require what at least some people are convinced is evil. The most basic moral sense makes clear that one should never take an action believed to be evil, regardless of the penalty.
It is hardly advocates of the sexual revolution who are the objects of an effort “to silence dissent,” but advocates of traditional morality. Dissenters from the traditional and religious sexual morality which reserves sexual activity to the natural marriage of man and woman are free to dissent vocally. And thanks to the judicial and legislative decisions of recent decades, they are free to engage in sexual activity forbidden by traditional morality. What Clarkson seems to be maintaining is that the moral revolutionaries are being “silenced” if the law protects people from cooperation in activities they believe to be sinful or evil. Such protection is an acknowledgment that it is morally wrong to require action believed to be evil, and thus that justice does not require protecting people from feeling their personal behavior condemned. It is this condemnation which is the injustice and suffering Clarkson maintains that LGBT persons and participants in abortion experience. But what justice requires is protecting people from taking action against their consciences, however badly anyone is pained.
A crucial notion in support of the contemporary attack on religious freedom is the distinction in recent decades between “negative” and “positive” freedom. The former is the right not to be coerced by the state. The First Amendment freedoms of religion, speech, the press, and assembly (interpreted as freedom of association) are freedom from coercion. “Positive freedom” is the right to be assisted, and it is this which is being used against religious freedom. Not only is it held the state must provide same-sex marriage and not restrain people from abortions, but people have the right to be assisted by religious believers who believe these things are evil, lest clients be offended. It would seem that “positive freedom” is really an attack on freedom. True freedom is freedom from coercion, the right to act or not to act, as one wishes. This appears to be stigmatized by calling it “negative.” “Positive” freedom is the right to demand action, which is the opposite of freedom.
Aren’t people required to take actions in support of racial integration, and haven’t religious justifications for racial separation been offered? These claims are true, but dissolve when considered seriously. In the first place, religious justifications for racial separation are extremely weak compared with those demanding traditional chastity (restriction of sexual behavior to the marriage of man and woman). Any Christian, Jew, or Muslim can easily show a demand for chastity from explicit statements their canonical texts. The teaching of racial separation or superiority, at least from the Bible, depends on inventive interpretations of a few Biblical texts, such as the story of Noah and his sons. In the second place, legal equality, if it is to have moral force and thus be good law, should be supported by reality. The races are mere varieties of the human species, indeed, there are no firm, objective boundaries between what are commonly understood to be races. Sexual boundaries are clear and objective, with exactly two sexes and their definite reproductive functions, throughout the human species and in animal and some plant species. The two sexes are different, and reasonably treated differently.
Still more, personal behavior and inclinations cannot really be equal, and thus personal behavior and inclinations cannot have legal equality. This would make the vilest crimes legal. Nor can such liberty and equality be given to sexual behavior and inclination alone. We cannot know what sex is if we define our own reality, as contemporary opinion and the Supreme Court hold that we should be free to do. Beyond that, the reason why sexual behavior must be above public judgment (and by extension, private judgment where antidiscrimination law applies to it) given by the Supreme Court in the Griswold and subsequent revolutionary decisions was the extremely personal and important nature of sex, making it above public judgment. But people differ in what they consider extremely important in their lives. Some may value sex above all else, others may make their religious commitments first. It is not accurate to say that sex should have priority because it is obviously real and the supernatural is unseen. All that is real is sexual desire. So is religious feeling real, but that does not establish any particular religious belief as true and proper. Similarly, sexual desire does not establish that any sexual activity that people want is proper.
It is important to recognize the subtle shift that occurs when sexual activity is declared off limits to judgment. It can be presented as simply neutrality about sexual activity, but once sexual behavior is accepted as off limits to judgement, the sexual activity tends to be seen as proper, and due respect. For example, sexual orientation and gender identity (SOGI) laws may be presented as the state reserving judgment about sexual matters, but have the effect of saying that the protected activity is proper, and private judgment against it is improper.
The rhetoric and logic of the cultural and legal left against religious freedom depends on incorporating inclinations, wishes, and behavior into personal identity, and thus giving liberty and equality to one’s personal preferences and behavior. But this simply cannot be done consistently. Equality cannot be given to all behavior. This will become more and more apparent as additional letters are added to LGBT. Full equality for all letters, which are endless, is impossible and would immediately lead to chaos. If behavior and inclination-based categories are established, then at the very least, persons who object to such behavior and inclination should not be required to be complicit in it. This would mean that persons in the protected categories cannot be discriminated against in non-objectionable activities, but providers can decline those to which there are moral objections. But this will not satisfy the cultural left.
As mentioned in the beginning, the polemic against religious freedom has pitted the term “discrimination” against the term “religious freedom.” But it is the idea of discrimination which is being abused. Discrimination is simply freedom, the choice of one thing and not another. This is absolutely essential for life. Where there is no discrimination, there is no freedom. One could not perform basic functions in everyday life without discriminating. Nor can we pick out legitimate and illegitimate forms of discrimination by finding some discrimination to be “invidious.” Freedom means nothing if it can be set aside because other people are pained. Certainly religious freedom and liberty of conscience cannot be set aside because other people are pained, or consider religious words or actions an attack on their identity. With respect to religious freedom, one person’s religious practice may imply that another person’s religion is wrong. There is no more reason to disallow conscientious objection in sexual matters because it implies certain sexual activity is wrong. In fact, by establishing behavior-based categories of antidiscrimination law, the state is directly addressing the area historically addressed by religion and morality, and thus making itself a final moral arbiter.
The state determining good and evil on the basis of the sensibility of part of the population, albeit an influential part, is not anything the founders envisioned. What the founders envisioned was, as John Adams said, “a religious and moral people” ruled by natural law. A morality of hurt feelings is not something that the majority of Americans want, many of whom have religious and moral commitments contrary to the sexual revolution, and it is certainly nothing that faithful Christians can acquiesce or cooperate in even where it is legally brought to pass. The decisions Christians make in life, and surely those of other religious believers of deep conviction, must be unalterably based on our understanding of the will of God.