As reviewed by this writer in articles in February, the denial of religious freedom involved in the proposed Equality Act will result in a daunting challenge to faithful Christians. It will give traditional religious believers the choice of underclass status or disobeying God. Professions and occupations will be closed to them because they will be required to facilitate sinful behavior. At the heart of the problem is giving civil rights status to sexual behavior and inclinations, an impossible project if liberty and equality are taken as the justifications. With sex self-defined, it becomes impossible to say what is and is not sexual; virtually anything could be done or required by someone claiming to be a victim.
The ludicrous but dangerous situation the nation is now faced with is the result of the attempt to incorporate sexual license into people’s understanding of virtue via the Constitution. As also reviewed in earlier articles, this process began in the 1960s, with Supreme Court decisions finding a constitutional right to marital contraception. While the Griswold decision (1965), appealing to a “law older than the Bill of Rights,” is well known, its background in a dissent from an earlier case is perhaps most important.
In Poe vs. Ullman (1960), the court had dismissed a case challenging Connecticut’s law banning contraception. Associate Justice John Marshall Harlan’s dissent from the dismissal turned out to be one of the most important statements in American jurisprudence. He declared that the freedom guaranteed by the Constitution was not a series of discrete rights, such as freedom of religion, speech, and the press, but a “rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” In subsequent years the court found this meant a right to contraception, abortion, and sodomy. “Rational continuum” appears to be a vision of the good life which is understood to be held by all enlightened persons.
By introducing civil rights law into the mix, this vision of the good life, focusing on the sexual aspect of life, becomes binding on everyone. This puts it on a collision course with religious freedom, since an important part of any religion is commonly restrictions on sex, and the enlightened vision declares consensual adult sexual activity to be righteous.
A summation of the sexual standards of the major world religions easily shows this. Christian ethics is drawn first from the Bible, which while recognizing marriage as part of creation, and therefore good, devotes most of what it has to say about sex to restriction and condemnation. The unhappy ending of the Garden of Eden account has clear sexual overtones, and sex appears again and again in the Book of Genesis as a cause of violence and suffering. Condemnation of adultery is part of the Ten Commandments. The sexual condemnations of the so-called Holiness Code in Leviticus 18, really in the heart of the law given by Moses, focuses on such gross departures from sexual morality as incest, bestiality, and sodomy. Harlotry, lust, and non-marital sex generally are repeatedly condemned in Old Testament history, the prophets, and the wisdom literature.
The New Testament is even more restrictive, prohibiting divorce, which the Old Testament allowed. The vice lists, found in the Gospels, Epistles, and the Book of Revelation prominently include condemnations of non-marital sexual activity. Notice particularly that this includes the vice lists of Jesus, in Matthew and Mark, and the vice list of damnation at the end of the Book of Revelation. Thus it is not at all a secondary, but a primary concern of the Christian Gospel. Of particular concern for today, Jesus identified complicity in sin as sinful. While it is sometimes said that the Bible has no uniform condemnation of all non-marital intercourse, the words of Jesus and Paul indicate otherwise. Jesus rebuked the woman at the well for cohabitation, while Paul’s admonition to the young unmarried couple to get married, saying that it is “not sinning,” clearly indicates that a sexual relationship without marriage is a sin.
Jewish sexual ethics are in large measure covered by the foregoing mention of the Old Testament, although supplemented by subsequent rabbinical judgments, just as Christian sexual ethics are understood through post-Biblical interpretation. The Catholic Encyclopedia expands on the Catholic interpretation of the commandment against adultery, for instance.
Islamic sexual ethics appear to comprehend all forbidden sexual activity under one word “zina.” It covers all non-marital intercourse, and as in the teachings of Jesus, the “lust of the eye.” Like Jewish and Christian ethics, it is well worked out by scholars over the centuries.
Other religions, although not monotheistic, do not seem greatly different on sexual ethics in their generalities. Severe condemnation of adultery seems almost universal, as in Hinduism, along with a more general condemnation of pre-marital intercourse. For Buddhism, sexual morality is comprehended under the third of five precepts that are basic to the religion. Like other religions, it focuses on restrictions, specifically prohibiting adultery, but is commonly understood by traditional societies to cover a much broader range, such as pre-marital sex. Scholarly discussions of homosexuality seem to strain to find ways of understanding it permissible by traditional standards, but as with Buddhism, finally concede that “Theravada Buddhist countries are not terribly open to homosexual practice.” Similarly, the same source endeavored to point out that the Dalai Lama offered no absolute condemnation of homosexuality, while conceding that he did say that all but biological intercourse if forbidden to Buddhists.
Confucianism is sometimes thought of as an ethical system rather than a religion, but it is not greatly different from undoubted religions in holding the restrictive view of sex common from antiquity. Several NIH authors seem disappointed that traditional Confucian morality has not greatly weakened with respect to pre-marital sexual behavior in the Far East, while the ancient Persian religion of Zoroastrianism offers much the same morality as Judaism, Christianity, and Islam, with an especially strong condemnation of homosexuality.
Sexual morality is thus fundamental to most world religions. Sexual standards differ from one religion and one culture to another, but there is also, and more importantly, a profound similarity. In particular, all acknowledge that non-marital sexual activity is in some measure defiling. Any language in the world can be expected to have a word that means “adultery,” and a word that means “virgin.” What does this say? It says that from antiquity, humanity considers non-marital intercourse to be defiling.
The contrary viewpoint of the sexual revolution is that humanity is wrong, and should change its mind. Modern technology and affluence can be held to eventually make possible a world without families, their responsibilities, and emotional strings. The mental and physical ailments that result from departing from the ancient standards are simply problems calling for enlightened resolutions by science and technology. How do we know that this is right? Apparently because people are entitled to what they want. It can be seen as part of the “rational continuum” of freedom. But this is not at all obvious – it seems to be offered as a moral intuition. Sexual desire is certainly real; that it is necessarily proper is simply an assumption. There is as much reason to give the consensus of the ages credence as there is the views of the modern international elite – many think, much more reason.
But more importantly than current trends, for traditional religious believers, traditional religions present themselves as an apprehension of ultimate reality. Therefore, the deliverances of religious precepts are non-negotiable. But there is nothing uniquely dogmatic about that. So is the secularist commitment to moral autonomy non-negotiable. Non-negotiable commitments cannot be rejected because they are non-negotiable. There must be a final good (a non-negotiable) in all moral assessments. Today there remains a common sense that marriage and family breakdown, the confusion about what sexuality means, and the death and pain visited by the promiscuity of the sexual revolution are not good things. By that standard, the non-negotiable of sexual purity received from antiquity ought to be favored. These generally recognized goods should be strong enough for law and public policy.
And so sexual morality cannot justly be excluded from religious freedom, as the cultural Left demands be done, because sexual morality is integral to world religions. Personal behavior and inclinations, as noted above, cannot consistently be given civil rights protection, and even if they could, the law should never require action against conscience.
But action against conscience is now being required by the sexual revolution in the interest of overthrowing the common human morality. It is exactly what the Equality Act, and any similar laws or rules will do. Especially for the religious conscience, commitments on sexual matters are rooted in an apprehension of ultimate reality, and cannot possibly be given up, for any penalty. Therefore, the religious conscience ought to be accommodated in law and public policy, regardless of how badly anyone is pained.