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Real Talk About Religious Liberty

Advocates must grasp that the weakness of their position
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A reader who is active at a high level in the religious liberty fight writes:

First, let me say how much I appreciate the yeoman’s work you have been doing on the religious liberty issue. Few have done as much to attempt to make clear the nature and extent of the threat to religious liberty that is now before us. While some seem to think that the sense of urgency you bring to the issue is overwrought, I think we NEED Jeremiahs on this issue. We also badly need those relatively few groups and individuals who are committed to working on religious liberty issues in the public square to coalesce around a prudent political strategy that better takes into account the cultural realities we face.

On balance the religious freedom movement is quite strong when it comes to litigation. We have a number of reasonably well funded groups with excellent attorneys that are day in and day out making the best available arguments to protect religious individuals and institutions in the courts given current law. This is far from saying they will always win, but they are pursuing a coherent strategy that maximized the likelihood of success.

Unfortunately, I do not think the same can be said of legislative strategy. At the state level in particular many of the most popular proposals presume a level of political and cultural support for religious freedom that simply does not exist (or that evaporates quickly upon first contact with particular types of opposition). My sense is that in order to overcome this it is critical that we better internalize certain core facts about America in 2016 that suggest compromise is the only path to achieving comprehensive religious liberty protections.

First and most obviously, Americans live under a legal regime in which same sex marriage has been fully implemented, and there is no plausible legislative path to undoing this reality. Furthermore, more than half of all Americans already live under sexual orientation and gender identity (SOGI) laws, most of which contain little or no religious liberty protection. The reality is that these laws have taken effect because they enjoy significant public support; especially when nuanced to neutralize concerns over bathroom and changing facilities issues. Proponents of vigorous protections for religious liberty must account for these realities as part of any prudent political strategy.

With this in mind I think far too many of even the smartest folks engaged in the religious freedom movement are mistaken when they reject out of hand proposals to mitigate the harm of this existing legal regime through legislation that would extend vigorous protections for religious freedom while simultaneously codifying certain anti-discrimination protections desired by LGBT groups, particularly in the areas of employment and housing. The current way in which the debate over religious freedom is playing out bodes extremely poorly for those with traditional views on marriage, family and sexuality, and time to shift that debate is growing short. Clinging to a legislative strategy that seeks total victory as opposed to a prudential balancing of rights is simply not going to end well for religious freedom.

As Edmund Burke teaches, “To complain of the age we live in, to murmur at the present possessors of power, to lament the past, to conceive extravagant hopes of the future, are the common dispositions of the greatest part of mankind… Yet as all times have not been alike, true political sagacity manifests itself in distinguishing that complaint which only characterizes the general infirmity of human nature, from those which are symptoms of the particular distemperature of our own air and season.” In assessing the particular distemperature of our own air, Ryan Anderson was correct, in Truth Overruled: The Future of Marriage and Religious Freedom, when he wrote that, “In our own time, however, the sexual revolution has shattered the American synthesis of faith and freedom, setting religion at odds with ‘liberty’ – or more accurately, license.”

Arguments for religious liberty which presume the existence of a political consensus that has in fact already been shattered do a profound disservice to a noble cause. It was the great insight of the pro-life movement, learned through bitter experience, that small incremental reforms were important victories, not betrayals of sacred principles. In the immediate years leading up to Roe the nascent pro-life movement enjoyed a period of relative political strength; winning statewide ballot initiatives in Michigan and North Dakota, effectively blocking abortion liberalization proposals in close to 30 state legislatures, and coming within a Rockefeller veto pen of reversing New York’s 1970 abortion law which had been the last significant pre-Roe legislative victory for pro-abortion forces.

Under such circumstances, and given the profound moral questions at stake, it was understandable that many at that time viewed anything less than a personhood amendment to the United Sates Constitution as collaboration. It took years of self destructive infighting for the pro-life movement, broadly speaking, to coalesce around the principle so well articulated by Pope John Paul II, in his Encyclical letter Evangelium vitae; that it is licit to support proposals that serve as “legitimate and proper attempts” to limit the harm of an existing legal regime. Here the lessening of “negative consequences at the level of general opinion and public morality” was understood to be a positive good, even though the legislation in question might tacitly acknowledge the continued legality of abortion.

In the aftermath of Obergefell the political landscape for religious liberty legislation is very arguably less favorable than the political environment that faced pro-life groups after Roe. Perhaps most obviously, it is safe to say that no abortion bill in the past 40 years has engendered the kind of focused and intense opposition from corporate interests that is now common place for any stand alone religious liberty proposal that seeks to extend protections to for-profit businesses. The big business, big law and big government phalanx that unites to oppose such measures is highly effective. Indeed, only Mississippi has passed even the narrowest of for-profit wedding vendor protections in the face of such opposition – and that law is now enjoined by a federal District Court.

This is not to say that no such protections could ever pass anywhere else and be upheld, but rather that any expectation that they will do so in a proportion remotely approximating the percentage of the population already living under SOGI laws today is fantastically optimistic. Meanwhile, the path to even broader application of SOGI laws is clear; resolve the bathroom and changing facility issue and religious liberty arguments will prove little impediment to the continued steady expansion of such laws, at least at the municipality level.

It is important to note that this is not merely because of LGBT interest group money, or corporate lobbying efforts. Rather, a broad societal consensus exists that, at minimum, it is wrong for individuals to be denied housing or employment based upon sexual orientation and gender identity. Indeed, virtually everyone agrees that sexual minorities should not be subjected to unjust discrimination. Arguments, no matter how well formulated, that this does not necessitate some level of legal protection, misread an understanding of justice that has already taken hold among Americans at a pre-suppositional level.

The pedagogical effect of the law is real. Our rights focused legal culture has taught its lessons well – that a just society is one in which external constraints on individual autonomy must be circumscribed by legal sanction. This particular distemperature of our day can not be swept away by legislative fiat. Moreover, the legal reality of same sex marriage and the proliferation of SOGI laws with no meaningful religious protections, is presently teaching its own lessons. These lessons serve to reinforce the notion that the shattering of the synthesis between faith and freedom was both necessary and inevitable. The fact that this lesson is wrong is no sure guard against it taking further hold.

Those who have been on the front lines of state legislative efforts to pass religious liberty legislation and the faith groups that have the most to lose from their failure, are increasingly coming to terms with some basic facts. Among them is that in the long run it will be very difficult to sustain meaningful protections for religious rights that conflict with majoritarian social norms, unless there is some willingness to consider balanced political compromise. In our system of federalism, what these compromises will entail must necessarily differ according to a myriad of local factors.

Securing the rights of religious institutions to fill their tradition role as communicators of core cultural values, is especially critical in an age when the societal synthesis regarding the meaning of liberty has been radically altered. As de Tocqueville observed, it is ultimately “those associations that are formed in civil life without reference to political objects” that most forcefully form our social ties. Such religiously based associations face pressing threats that have real social consequences: a public square increasingly denuded of the salutatory influence the moral suasion provided by faith communities; a society in which faith groups that hold to traditional views on marriage, family and sexuality are precluded from providing mercy ministries from adoption services and homeless shelters; a culture in which those who wish to live according to the dictates of their faith find in law an impoverished notion of religious liberty limited to mere worship and belief. Absent more vibrant statutory protections of religious freedom all of the above are more than mere possibilities. Absent a cleared eyes assessment of our cultural condition and the political limitations this imposes, such protections will largely not be achieved.

The fight for religious liberty is critical first because to compel men and women to violate their most deeply held beliefs in order to enjoy the full benefits of participation in society is tyrannical. But almost as important is creating a context in which religious institutions are free to carry out their key role in rectifying, over time, the social ills discussed above. While political institutions are vital, they are ultimately of secondary importance in the monumental work of cultural renewal that lies before us. Churches, schools and all of the other faith based institutions that have long played a vital role as mediating institutions in our culture must be free to do such work, but this will require restored legal breathing space. Those who in service to abstract principle would turn their backs on politically tenable legislative proposals that would help achieve such breathing space have misread the implications of the reality of the shattering of the American synthesis of faith and freedom.

Newfound respect for and protection of religious freedom must be grounded in old principles. But we must build on those principles from where we actually are today. The protection of religious liberty and freedom of conscience is critically important, we must not indulge in the comfortable fantasy that it is achievable.

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