Religious Liberty Under the Gun

April 2013

R.R. Reno
Editor, First Things
Religion and Public Life in America

From the end of the Civil War until the 1960s, the wealthiest, best educated, and most powerful Americans remained largely loyal to Christianity. That’s changed. There were warning signs. William F. Buckley, Jr. chronicled how Yale in the early ’50s could no longer support even the bland religiosity of liberal Protestantism. Today, Yale and other elite institutions can be relied upon to provide anti-Christian propaganda. Stephen Pinker and Stephen Greenblatt at Harvard publish books that show how Christianity pretty much ruins everything, as Christopher Hitchens put it so bluntly. The major presses publish book after book by scholars like Elaine Pagels at Princeton, who argues that Christianity is for the most part an invention of power hungry bishops who suppressed the genuine diversity and spiritual richness of early followers of Jesus.

One can dispute the accuracy of the books, articles, and lectures of these and other authors. This is necessary, but unlikely to be effective. Experts savaged Greenblatt’s book on Lucretius, The Swerve, but it won the National Book Award for non-fiction. That’s not an accident. Greenblatt and others at elite universities are serving an important ideological purpose by using their academic authority to discredit Christianity, whose adherents are obstacles not only to abortion and gay rights, but to medical research unrestricted by moral concerns about the use of fetal tissue, to new reproductive technologies, to doctor-assisted suicide, and in general to liquefying traditional moral limits so that they can be reconstructed according to the desires of the Nones. Books by these elite academics reassure the Nones and their fellow travelers that they are not opposed to anything good or even respectable, but rather to historic forms of oppression, ignorance, and prejudice.

I cannot overstate the importance of these ideological attacks on Christianity. Our Constitution accords us rights, and the courts cannot void these rights willy-nilly. But history shows that the Constitution is a plastic document. When our elite culture thinks something is bad for society as a whole, judges find ways to suppress it. The First Amendment offered no protection to Bob Jones University, which lost its tax-exempt status because of a policy that prohibited inter-racial dating. As the Supreme Court majority in 1983 wrote in that case: “Government has a fundamental, overriding interest in eradicating racial discrimination in education . . . which substantially outweighs whatever burden denial of tax benefits places on [the University’s] exercise of their religious beliefs.”

In recent years the Supreme Court has been largely solicitous of religious freedom, sensing perhaps that our cultural conflicts over religion and morality need to be kept within bounds. But the law professors are preparing the way for changes. Martha Nussbaum, who teaches at the University of Chicago Law School, has opined that the colleges and universities run by Catholic religious orders that require their presidents or other leaders to be members of the order should lose their tax exempt status, because they discriminate against women. She allows that current interpretations of the First Amendment don’t support her view, but that’s not much comfort. All Nussbaum is doing is applying the logic of the Bob Jones case to the feminist project of eradicating discrimination based on sex.

Former Georgetown law professor Chai Feldblum—who is also a current Obama appointee to the Equal Employment Opportunity Commission—has written about the coming conflicts between gay rights and religious liberty. With an admirable frankness she admits, “I’m having a hard time coming up with any case in which religious liberty should win.” Again, the Bob Jones case is in the background, as are other aspects of civil rights law designed to stamp out racial discrimination. For someone like Feldblum, when religious individuals and institutions don’t conform to the new consensus about sexual morality, their freedoms should be limited.

It is precisely the possibilities evoked by Nussbaum and Feldblum that now motivate the Obama administration’s intransigence about allowing places like Notre Dame to be classified as religious employers. In the Bob Jones case, the justices were very careful to stipulate that “churches or other purely religious institutions” remain protected by the First Amendment’s principle of free exercise. By “accommodating” rather than counting Notre Dame and other educational and charitable organizations as religious employers, secular liberalism can target them in the future, as they have done to Catholic adoption agencies that won’t place children with homosexual couples.

A recent book by University of Chicago professor of philosophy and law Brian Leiter outlines what I believe will become the theoretical consensus that does away with religious liberty in spirit if not in letter. “There is no principled reason,” he writes, “for legal or constitutional regimes to single out religion for protection.” Leiter describes religious belief as a uniquely bad combination of moral fervor and mental blindness, serving no public good that justifies special protection. More significantly—and this is Leiter’s main thesis—it is patently unfair to afford religion such protection. Why should a Catholic or a Baptist have a special right while Peter Singer, a committed utilitarian, does not? Evoking the principle of fairness, Leiter argues that everybody’s conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary “liberty of conscience.”

Leiter’s argument is libertarian. He wants to get the government out of the business of deciding whose conscience is worth protecting. This mentality seems to expand freedom, but that’s an illusion. In practice it will lead to diminished freedom, as is always the case with any thoroughgoing libertarianism.

Let me give an example. The urban high school my son attended strictly prohibits hats and headgear. It does so in order to keep gang-related symbols and regalia out of the school. However, the school recognizes a special right of religious freedom, and my son, whose mother is Jewish and who was raised as a Jew, was permitted to wear a yarmulke. Leiter’s argument prohibits this special right, but his alternative is unworkable. The gang members could claim that their deep commitments of loyalty to each other create a conscientious duty to wear gang regalia. If everybody’s conscience must be respected, then nobody’s will be, for order and safety must be preserved.

* * *

The Arabic word dhimmi means non-Muslim. Under Muslim rule, non-Muslims were allowed to survive only insofar as they accepted Muslim dominance. Our times are not those times, and the secularism of the Nones is not Islam. Nevertheless, I think many powerful forces in America would like to impose a soft but real dhimmitude. The liberal and libertarian Nones will quarrel, as do the Shi’a and Sunni, but they will, I think, largely unify against the public influence of religion.

What can be done to prevent them from succeeding?

First and most obvious—defend religious liberty in the courts. Although I have depicted deep cultural pressures that work against religious liberty, we live in a society governed by the rule of law. Precedent matters, and good lawyering can make a substantive difference.

Second—fight against the emerging legal theories that threaten to undermine religious liberty. This is a battle to be carried out in the law schools and among political theorists. For decades, legal activists on the Left have been subsidized by legal clinics and special programs run in law schools. Defenders of religious liberty need to push back.

Third—fight the cultural battle. Legal theory flexes and bends in accord with the dominant consensus. This Brian Leiter knows, which is why he does not much worry about the current state of constitutional law. He goes directly to the underlying issues, which concern the role of religion in public life.

We must meet the challenge by showing that religion is indeed special. Religious people are the most likely Americans to be involved in civic life, and the most generous in their charitable contributions. This needs to be highlighted again and again. Moreover, we need to draw a contrast with the Nones, who tend to outsource their civic responsibilities and charitable obligations to government in the form of expanded government programs and higher taxes.

There is another, deeper argument that must be made in defense of religion: It is the most secure guarantee of freedom. America’s Founders, some of them Christian and others not, agreed as a matter of principle that the law of God trumps the law of men. This has obvious political implications: The Declaration of Independence appeals to the unalienable rights given by our Creator that cannot be overridden or taken away. In this sense, religion is especially beneficial. As Popes John Paul II and Benedict XVI both emphasized, it gives transcendent substance to the rights of man that limit government. Put somewhat differently, religion gives us a place to stand outside politics, and without it we’re vulnerable to a system in which the state defines everything, which is the essence of tyranny. This is why gay marriage, which is sold as an expansion of freedom, is in fact a profound threat to liberty.

Finally, we must not accept a mentality of dhimmitude. The church, synagogue, and mosque have a tremendous solidity born of a communion of wills fused together in obedience to God. This gives people of faith the ability to fight with white fury for what they perceive to be a divine cause, which is of course a great force for righteousness—but also a dangerous threat to social peace, as early modern Europe knew only too well.

In conclusion, I want to focus not on fury but on the remarkable capacity for communities of faith to endure. My wife’s ancestors lived for generations in the contested borderlands of Poland and Russia. As Jews they were tremendously vulnerable, and yet through their children and their children’s children they endured in spite of discrimination, violence, and attempted genocide. Where now, I ask, are the Russian and Polish aristocrats who dominated them for centuries? Where now is the Thousand Year Reich? Where now is the Soviet worker’s paradise? They have gone to dust. The Torah is still read in the synagogue.

The same holds for Christianity. The Church did not need constitutional protections in order to take root in a hostile pagan culture two thousand years ago.

Right now the Nones seem to have the upper hand in America. But what seems powerful is not always so. If I had to bet on Harvard or the Catholic Church, Yale or the Mennonites in Goshen, Indiana, the New York Times or yeshivas in Brooklyn, I wouldn’t hesitate. Over the long haul, religious faith has proven itself the most powerful and enduring force in human history.

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