The Future of Religious Liberty

This week should bring two significant Supreme Court decisions on the matter of same sex marriage, in the cases of Hollingsworth v. Perry (the California Proposition 8 case) and the United States v. Windsor (the DOMA issue). Personally, I think it would be a shame for the Court to hand down any sweeping ruling on the issues involved. Just like it did in Roe and Doe, the Court could stop the conversation, halting the ability of voices to be heard and for this to play out in a representative political sphere. Representative politics ought to represent, and the people and their representatives should decide what marriage is, and whether they wish to change their minds on it, not the Court. The Summer 2013 issue of The City, which mails this week, is full of smart writing on the issue of marriage and religious liberty. In editing the issue, I read a great deal of the work from Robbie George, Ryan T. Anderson and others who have been making essentially the natural law argument in defense of the traditional definition of marriage. The core of their argument is here. Upon closer inspection, I think they have really been arguing against the rise of something which has a much larger impact than just a small number of homosexuals getting married – they have instead been arguing against the modern concept of sexual identity. And this is a much tougher task, considering how ingrained this concept has become in our lives.  During the sexual revolution, we crossed a line from sex being something you do to defining who you are. When it enters into that territory, we move beyond the possibility of having a society in which sex acts were tolerated, in the Mrs. Patrick Campbell sense – “I don’t care what they do, so long as they don’t do it in the street and frighten the horses” – and one where it is insufficient to be anything but a cheerleader for sexual persuasion of all manner and type, because to be any less so is to hate the person themselves. Sex stopped being an aspect of a person, and became their lodestar – in much the same way religion is for others. As Walker Percy wrote, “Pascal told only half the story. He said man was a thinking reed. What man is, is a thinking reed and a walking genital.” The problem with gay marriage is not about gay people getting married – they’ve already been doing that, or living that way. The problem with gay marriage is not that it will redefine marriage into a less valuable social institution in the eyes of the populace – that is already happening, has been for decades, and will continue regardless of whether gays are added to it or not. And the problem with gay marriage is not about the slippery slope of what comes next – though yes, the legal battle over polyamory and polygamy is inevitably coming, as the principle of marriage equality demands it does (these relationships already exist below the radar, albeit with more poly than amory involved – of the 500 gay couples followed in the respected San Francisco study, about half of the partners have sex with someone else with their partner knowing).  No, the real problem with gay marriage is that the nature of the marriage union is inherently entwined in the future of the first line of the Bill of Rights: our right to religious liberty. Orthodox believers of Christian, Muslim, and Jewish faiths were slow to understand this. I’m talking about something much bigger here than the discrimination lawsuits brought across the country against bakers and photographers: I’m talking about whether churches will be able to function as public entities in an era where their views on sin, particularly sexual sin, are in direct conflict with not just opinion but the law – and proselytizing those views from the pulpit or in the public square will be viewed as using the protection of religious expression to protect hateful speech. We saw this problem already in Illinois’ marriage law, where churches that do not allow same sex unions would essentially have to close their doors to full participation in civil society. We see it as a constant issue regarding Canada’s hate speech laws, where courts must discern whether quoting Bible verses amounts to “harming the public discourse.” We will see it more here. That obvious oncoming clash strikes me as the most troublesome aspect of this, and the one that has received the least attention in the rush to legalize. The argument has been more about benefits and social outcomes and “won’t somebody think of the children”, ignoring the core problem, which raises challenges to the freedom of speech and expression the likes of which led to the pilgrims crossing the sea in the first place. The conflict between sexual liberty and religious liberty is unlikely to be one the religious will win, in large part because of the broad and increasing acceptance of an idea President Obama has espoused more than once in public: that the religious have a freedom to worship, and that’s where it ends. When you leave the pew, you must leave your faith there. Among the religious, this is absurd – their entire lives are defined by their faith, in ways large and small. For both Christianity and Islam, the core of their faith is built on a call to take the message to the world, spreading it through public witness and preaching. Yet this belief in the limited freedom to worship is what led Obama’s administration to argue that faith-based hiring and firing is a discriminatory act for religious entities. It will lead to similar cases in the years to come regarding the marriage issue, but not just focused in that space – expect it to factor in divorce proceedings, custody battles, and more points involving the nice folks from Child Protective Services. Expect it also to factor in dramatically expanding the scope of these discrimination lawsuits – think on the doctor in California who was brought up on discrimination charges for referring a lesbian couple to a colleague for artificial insemination. In a litigious society, those conscience conflicts will multiply, with pressure on anyone who “refuses and refers” to be stripped of their government-provided license or memberships in professional society. This will occur in part because the gay and lesbian population is distinctly different in comparison to the rest of the public when it comes to religion. Half of the LGBT population is atheist, agnostic, or religiously unaffiliated – and this makes them far less likely to respect the religious defenses of those they view as preaching and practicing bigotry, and recruiting people to join their bigoted club.  Without religious liberty, there really is no such thing as free speech. When government can pick and choose which form of expression is religiously defensible and which is unjustified hate, it fundamentally alters the relationship between state and citizen. If a different path toward gay marriage had been followed – the compromise of a simple civil union approach to ensure access to rights and benefits – it’s possible this clash could’ve been avoided. A federalist solution to marriage could’ve slowed the approach to the issue to a point where the concerns of the faithful could achieve proper protection. But those for whom sexual identity is paramount have insisted on redefining institutions, through a series of repeated flashpoints – from the Boy Scouts to the Catholic hospitals and adoption centers – disregarding any of the outcomes. The calculation is simple: ensuring the supremacy of their worldview is the goal, and those who disrespect it (for religious reasons or not) deserve to be shunned, regardless of the fallout for civil society. And there will be fallout. So the real issue here is not about gay marriage at all, but the sexual revolution’s consequences, witnessed in the shift toward prioritization of sexual identity, and the concurrent rise of the nones and the decline of the traditional family. The real reason Obama’s freedom to worship limitation can take hold is that we are now a country where the average person prioritizes sex far more than religion. One of the underestimated aspects of the one out of five Americans (and one out of three Millennials) who are now thoroughly religiously unaffiliated is that, according to Barna’s research, they aren’t actually seekers. They’re not looking or thinking about being part of a community focused on spirituality, in prayer, fellowship, worship, or anything else. Their exposure to faith is diminished because they want it to be. In a nation where fewer people truly practice religion, fewer people external to those communities will see any practical reason to protect the liberty of those who do. The world could in time come full circle to Mrs. Campbell’s old line: You are free to believe, as long as you don’t do it in the streets, so as not to frighten the horses.

  1. KC Mulville

    Suppose someone does hate you. Suppose someone expresses that hate.

    Why does that give you a right to anything?

  2. Mendel

    This essay gets a lot right, but the real truth is buried at the bottom:

    The root problem is neither gay marriage nor, even, the sexual revolution.  The main threat to religious freedom is America’s loss of religion.

    Conflicts between church practices/beliefs and the law are nothing new.  Whether it be the condemnation of divorce, the refusal to re-marry divorcees, the right to discriminate when hiring: we have often granted churches exceptions to the law, and there is no substantive reason why gay marriage should be  different.

    The real difference today is that we are at or near the tipping point that a majority of society no longer views traditional, faith-based values as important or relevant to modern life.  ”Sexual identity” just happens to be the issue du jour when the wave hit its peak – but even if we could sweep gay marriage off the table, some other secular vs. religious conflict would arise to carry on the fight.

    In other words, the sexual revolution is simply the mask that secularism/humanism happens to be wearing to the big fight.

  3. Merina Smith

    Well written article, Ben.  I think in the big picture you are right that regarding sexual identity as the core of a person is the bottom line for some factions, but many people don’t agree with that.  And it is also about children, because children have to be raised and taught something.  The sad experiment that is unfolding in MA, Sweden and other places, where children are aggressively taught that gender doesn’t matter, just won’t work in the end.  It’s a recipe for utter confusion, a birth dearth and general chaos.  Also, you underestimate the power of religion.  I admit that things seem to be headed in the direction you say, but such lies and idiocy ultimately collapse of their own weight, unable to sustain life.  

  4. Merina Smith

    Good points, Mendel.  The irony is that tolerance itself is based upon a religious understanding of the world.  People who believe God is the judge can be tolerant.  Others–well look at the contemporary left. They are deeply intolerant but unable to see their own intolerance.  What you end up with is a French Revolution scenario.  

  5. Keith Keystone

    Brilliant article. With self-congratulatory liberals speaking about a more diverse, tolerant society in recent years, it actually feels like we are moving in the opposite direction. The cultural divisions run deep and wide in our society. The next great divide is the non-religious vs. the religious. This one, though, will lead to greater social upheaval than all others. Look out, it’s going to be a rocky road ahead.

  6. KC Mulville: Suppose someone does hate you. Suppose someone expresses that hate.

    Why does that give you a right to anything? · 20 minutes ago

    It doesn’t, and I think that goes to the heart of the fallacy in this post.

    Civil marriage equality need not, and likely will not, result in state interference in religious speech.  Yes, the Obama administration has overreached, but that can’t be a surprise to a Ricochet poster.  I have enough confidence in not only the first amendment, but in our history of jealously protecting it, to believe the excesses will be reined in.

    Of course if you want to preach against homosexuality without being subjected to contradiction or opposition, then you’re on your own.  The right to speak is not reserved for the religious alone.  Criticize, demonize, or condemn a whole class of citizens if you like, but don’t expect your views to be privileged when that class responds by criticizing you.

  7. Aaron Miller
    Ben Domenech: The world could in time come full circle to Mrs. Campbell’s old line: You are free to believe, as long as you don’t do it in the streets, so as not to frighten the horses.

    Beautiful summary.

    The problem is aggravated by the way in which traditionally religious individuals have succumbed to political correctness — pretending that fundamental differences in perception of reality are inconsequential.

    God is not a divine watchmaker who merely set the world in motion. God is active and necessary to daily life. He cannot and will not be ignored in public life.

  8. mask
    Cato Rand f/k/a GFL

    Of course if you want to preach against homosexuality without being subjected to contradiction or opposition, then you’re on your own.  The right to speak is not reserved for the religious alone.  Criticize, demonize, or condemn a whole class of citizens if you like, but don’t expect your views to be privileged when that class responds by criticizing you. · 1 minute ago

    The issue isn’t that the religious don’t want others to express disagreement with them it’s using the power of the state to push them out of the public square – which has happened and is happening in America.  We’re not as bad as other western countries in this regard but progressives continually work at pushing us closer to them every day so I’ll take your promises that it would never happen here with a grain of salt.

  9. Mendel
    KC Mulville: Suppose someone does hate you. Suppose someone expresses that hate.

    Why does that give you a right to anything?

    Of course, this goes both ways.

    Churches don’t have the “right” to a prominent presence in our public square.  Religious hospitals don’t have a constitutional “right” to receive Medicare/Medicaid payments from the government.  Those are privileges granted by society through government, which could be revoked if society turns against the churches.

    Be careful when wielding the “you don’t have a right not to be hated” argument.  It is certainly valid, but it may soon be used against religion, not in support of it.

  10. KC Mulville
    Cato Rand f/k/a GFL

    Civil marriage equality need not, and likely will not, result in state interference in religious speech.  [...]

    Of course if you want to preach against homosexuality without being subjected to contradiction or opposition, then you’re on your own.  The right to speak is not reserved for the religious alone. 

    I’ll happily take my chances in a public forum.

    But what we’ve seen so far is that the agents of “progress” first seek to silence the opposition. That’s what “hate speech” legislation is all about; it’s about silencing voices. 

    And our experience is that rights don’t come by themselves,  nothing’s guaranteed. If you don’t fight for rights, you lose them.

    Your confidence that free speech will prevail is one thing; but it’ll only survive if we fight for it. 

  11. Mendel
    mask

    Cato Rand f/k/a GFL: 

    So you support polygamy? 

    Please, let’s not let another promising conversation get sucked into the bottomless “SSM/polygamy/slippery slope” black hole.  Please.

  12. KC Mulville

    I want to go back to what I think is the essence of Ben’s original post.

    Consider this: does the government have the right to regulate action? Yes, it does; not all action, only those actions prescribed by the Constitution. Of course, we conservatives believe that government authority stops there. Liberals (cf. Nancy Pelosi, are you serious?) believe that government has the right to regulate everything. 

    So now consider, does the government have the right to regulate belief ? Most of us are horrified at the idea. 

    I say that expression is a halfway ground between belief and action. Where does government’s authority end?

    The government has a right to prevent speech that is likely to cause an imminent danger. They do have some authority about expression. And what we’re afraid of is that people will use that as a foot in the door to exert authority over belief. 

    I’m inclined to say that government has no authority over expression unless they can show that such expression has a direct, necessary, and imminent connection to actions … and those actions have to be pre-defined as criminal.

  13. mask
    Cato Rand f/k/a GFL: mask — I’m not going to reargue ever anti-SSM argument in your post. 

    ….

    Additionally…

    I do appreciate your response.

    I am curious though, how you can argue for equality for your particular group but not for others who have just as valid a claim (polygamists).

  14. mask
    Mendel

    mask

    Cato Rand f/k/a GFL: 

    So you support polygamy? 

    Please, let’s not let another promising conversation get sucked into the bottomless “SSM/polygamy/slippery slope” black hole.  Please. · 0 minutes ago

    Isn’t it relevant though?  Isn’t this exactly what we’re talking about?

    The pro traditional marriage side claims that the state recognition of gay marriage will (and has) been used to attack religious liberty while the pro SSM side either thinks that this is a valid use of state power or agrees with the ends but not the means (while denying there is a “slippery slope”).

  15. Sabrdance
    Mendel

    KC Mulville

    Mendel

     

    Practically speaking, it does.  Having worked for non-profits, if donors representing a majority of the organization’s funding refuse to donate unless the management is replaced, the non-profit is faced with capitulating to the donors’ demands or shutting its doors.  That is de facto ownership.

     · 5 minutes ago

    There are other donors, there are not other states.

    And if we have reached the point where the entire not-for-profit sector -secular and religious -is dependent on the state and the state can act in such a way – if civil society itself exists at the whim of the federal government -then we are lost.

  16. mask

     

    So you support polygamy?

    1) I said I’m not going down these same old SSM thread rabbit holes.  Been down them too many times to no avail.

    2) “Support” no.  But I don’t necessarily oppose it under all circumstances either.  I do regard it as an entirely separate subject from SSM that raises separate and different issues.

  17. Mendel

    mask

    Cato Rand f/k/a GFL: 

    So you support polygamy? 

    Please, let’s not let another promising conversation get sucked into the bottomless “SSM/polygamy/slippery slope” black hole.  Please. · 16 minutes ago

    Fear not.  Been there, done that, not doing it again.  It leads nowhere.

  18. Mendel
    mask

    Mendel

    mask

    Cato Rand f/k/a GFL: 

    So you support polygamy? 

    Isn’t it relevant though?  

    Relevant, perhaps; necessary, no.  

    And experience on Ricochet has shown that the question “if you support SSM, do you also support polygamy?” very often derails and stifles whatever other conversation was blossoming, to be replaced with yet another iteration of the same debate we have rehashed uncountable times. 

    The “SSM/polygamy/slippery slope” discussion seems to be an Achilles’ heel of this site, and I think it would be wise for us to avoid it, when possible, for the time being.

  19. Mendel

    mask

    Mendel

    mask

    Cato Rand f/k/a GFL: 

    So you support polygamy? 

    Isn’t it relevant though?  

    Relevant, perhaps; necessary, no.  

    And experience on Ricochet has shown that the question “if you support SSM, do you also support polygamy?” very often derails and stifles whatever other conversation was blossoming, to be replaced with yet another iteration of the same debate we have rehashed uncountable times. 

    The “SSM/polygamy/slippery slope” discussion seems to be an Achilles’ heel of this site, and I think it would be wise for us to avoid it, when possible, for the time being. · 11 minutes ago

    LOL.  I’m just glad I’m not the only one who’s noticed.  :)

  20. mask
    Cato Rand f/k/a GFL

    Mendel

    mask

    Mendel

    mask

    Cato Rand f/k/a GFL: 

    So you support polygamy? 

    Isn’t it relevant though?  

    Relevant, perhaps; necessary, no.  

    And experience on Ricochet has shown that the question “if you support SSM, do you also support polygamy?” very often derails and stifles whatever other conversation was blossoming, to be replaced with yet another iteration of the same debate we have rehashed uncountable times. 

    The “SSM/polygamy/slippery slope” discussion seems to be an Achilles’ heel of this site, and I think it would be wise for us to avoid it, when possible, for the time being. · 11 minutes ago

    LOL.  I’m just glad I’m not the only one who’s noticed.  :) · 8 minutes ago

    Ok, how about this then.

    Cato, you say that you don’t want state power to be used to marginalize those who disagree with you on this point (though you agree with the ends) but can and do you claim this for the SSM movement?

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