In the words of Harvard Law Professor Mary Ann Glendon, “until recently the status of religious liberty as one of the most fundamental rights of Americans has seldom been seriously challenged.” This is understandable. After all, proponents of religious liberty simply ask the right to have and exercise their beliefs; they don’t ask others to approve of them.
This “live and let live” sensibility made it easy for both Democrats and Republicans to pass the Religious Freedom Restoration Act (RFRA) in 1993. RFRA is the basis for many religious freedom lawsuits against the federal government, including the challenges to the HHS mandate, and it is the framework adopted by many states in their own religious liberty laws. RFRA passed in the Senate 97-3, unanimously in the House, and received a swift signature from President Bill Clinton.
Yet twenty years later, religious liberty claims brought in RFRA’s name are criticized by many on the Left as smokescreens to advance a distinctly conservative agenda.
Understanding why religious liberty became politically controversial requires more than just identifying the political fault lines. The underlying problem is our society’s movement toward a Rousseauian, and away from an authentically American, conception of religion’s role in public life. While our founders greatly valued religion as a public instructor of virtue, Rousseau thought that religions should only have educational power in spheres not relevant to society at large, and further that the state should determine those precise boundaries. The Left has progressed quite far along this track, and its members can hardly be expected to protect religious liberty unless they relearn its value for any free society.
The Left’s Qualified Value for Religious Freedom
The Left’s post-RFRA efforts to expand the meaning of civil rights—in particular, to prioritize “lifestyle” rights, and public validation of them, over traditional civil liberties—have changed its tune toward religious freedom.
In March, Dr. Jay Michaelson of Political Research Associates released a report titled “Redefining Religious Liberty: The Covert Campaign Against Civil Rights.” Michaelson argues that conservative Christians co-opted genuine religious liberty into “the freedom to discriminate and harm others.” He compares religiously based exemptions from laws redefining marriage to racist efforts to thwart civil rights. Former NAACP president Julian Bond argued the same in a June op-ed.
Indeed, many Leftist organizations and individuals have echoed this thesis, including the American Civil Liberties Union, the Center for American Progress, and noted professors such as Michael Kent Curtis.
Richard T. Foltin, a member of the American Bar Association’s governing council on individual rights, explains that RFRA’s breadth of religious liberty protection (reflected too in state laws designed to mirror RFRA locally) was invoked against a “signal achievement of the civil rights community,” preventing landowners from refusing to rent property on the basis of marital status.
The landowners’ religious liberty claims, made in the context of renting property to unmarried couples, had mixed success in court. Yet Foltin argues, “it quickly became evident [to progressives] that these cases had implications for cases in which landlords might want to refuse to rent to same-sex couples.”
This conditional view of religious liberty began to break down other efforts to protect religious freedom in law. University of Virginia law professor Doug Laycock has noted that in 1999 this “civil rights exception” caused controversy when Congress debated adopting the Religious Liberty Protection Act (RLPA). Liberals argued that religious liberty claims shouldn’t trump discrimination lawsuits on matters of sex, employment, and even ordination. With these controversies, RLPA and other broad religious freedom legislation became flashpoints.
These developments show when, where, and how the Left-Right fault line over religious liberty and civil rights took shape—but they don’t explain why the rift took this particular shape. To answer that question we need to consider how a liberal society creates the well-formed citizenry necessary to preserve liberalism.
The Founders and Rousseau on Religion in Public Life
The founders saw America’s religious vibrancy and diversity as essential—or as George Washington said in his Farewell Address, an “indispensable support”—for civic formation. While this view rejected the idea of an established national church, it allowed religion to flourish through debate and diversity—akin to James Madison’s description in Federalist 10 of the flourishing of republican government through diverse political interests—and offered a basic rationale for individual freedom: the soul needs to remain sovereign.
Madison noted this in his “Memorial and Remonstrance,” confirming that “every man” has a “duty . . . 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 degree of obligation, to the claims of Civil Society.” This duty’s natural check on state power makes other limits follow, which protect freedom of conscience from legal coercion while encouraging virtue through vibrant religiosity.
Implicit in this view of religion’s role in civic life is not only a broad terrain for conscience, but also restraint on the government’s role. Only a government that refrains from dominating the usual spheres of moral and religious development—the family, the church, the school, and civic associations—can reasonably encourage growth in virtue through religious practice and defer to conscientious objections. Madison could hardly claim that the duties of conscience are “precedent both in order of time and degree of obligation” to one’s duties to the state if he agreed with the sentiment of House Minority Leader Nancy Pelosi that one just “do[es] religion on Sundays, in church.”
Unsurprisingly then, as the government’s power grows in the areas reserved for citizen-formation, it begins to supplant religion in that role. This diminished place for religion as a civic teacher leaves room only for religious believers that fit the state’s view of virtue, while rendering dissenters an annoyance to be placated at best, and a hostile force to be marginalized at worst.
The philosopher Jean-Jacques Rousseau, whose work heavily influenced a separate experiment in liberalism, the French Revolution, thought that the state should determine religion’s educational role. In his famous work, “The Social Contract,” Rousseau argues that the division between the Master of conscience and the masters of the state justifies limiting religion’s educational power to matters of little or no concern to the community. Where the community is concerned, however, there will be a civic religion with the goal of “binding the hearts of citizens to the State.” Citizens can maintain purely private religious opinions on matters unimportant for societal order, but to Rousseau, “the Sovereign is sole judge of what is important.” Dissent from the state’s goals cannot be tolerated.
The Left’s Rousseauian Tendencies
From Rousseau’s perspective the government can more easily disregard religious objectors. If one argues, as Planned Parenthood president Cecile Richards did in February 2012, that “birth control is basic health care and women should have access to birth control, no matter where they work,” then why tolerate dissent from that? Rousseau would not, and neither did Richards, saying it was wrong for the Obama administration even to exempt houses of worship from this requirement.
The same logic appears in Julian Bond’s argument, which concludes that religious belief cannot be a “license to discriminate”; the state has the power both to define and to police the line between legitimate religious belief and impermissible discrimination. One might say that the state locuta est, causa finita est.
Clearly the Obama administration, Bond, Michaelson, and others are not so Rousseauian as to rule out the idea of any religiously based exemption from generally applicable laws. But by embracing an expanded role for the government in the areas of life that impact how citizens form and manifest their beliefs, the government becomes a Rousseauian arbiter of opinions on the matters it touches. The result is a purely pragmatic view of religious accommodation.
This view doesn’t embrace accommodation out of respect for religion’s role in citizen-formation. Rather, accommodation is used to reassure one’s soft political supporters that no harm will come to religious dissenters who are too divorced from society’s new consensus to be a real threat anyway. HHS mandate opponents won’t be apprehended, for example; they will simply be fined.
Like Rousseau’s view, however, the pragmatic view reluctantly embraces accommodation in areas where the space between authority of conscience and authority of government regulation seems bigger. So, as Michaelson’s report explains, while a church may not be expected to perform a same-sex marriage, a religious individual running a photography business may face fines for being unwilling to photograph one. This approach is different only in degree, not in kind, from what Rousseau argued.
There is no doubt, as Bond, Michaelson and others argue, that racists invoked religion to defend slavery and racial segregation. But there is equally no doubt, as historical figures from Abraham Lincoln to Martin Luther King, Jr., demonstrate, that abolitionists and anti-segregationists relied on a religious understanding of civic virtue and human dignity to fight the government institutions of slavery and Jim Crow laws. In fact, many ardent abolitionists found that their root problem with slavery came from their religious formation—thanks in part to religious groups like the Quakers resisting the government’s view of “justice.”
The Left should embrace the founders’ appreciation for religion in public life, which would allow religions to refine their understanding of the truth through vibrant public discourse. Doing so would require greater respect for conscience and for dissent from laws that are perceived as unjust. Through debate and time, wisdom is revealed.
Keeping religion vibrant in public life, as Justice Elena Kagan has noted, crafts a “critical buffer” against state power. This “often serves as a shield against oppressive civil laws,” and a rationale to reform them. The Rousseauian society, in contrast, is left with the mere hope that the law always teaches toward true justice, because accommodating any type of religious-based dissent is an unacceptable compromise.
Giving the state power to decide which lifestyles every person must validate is incompatible with respecting human dignity because it infringes on the very type of citizen-formation left to the individual conscience.
Conclusion: The Left Needs to Relearn the Value of Religious Freedom
A free society consistently debates how to harmonize government protection of individual rights with educating citizens about liberty. Our disagreement over the value of religious liberty has arisen largely because in our society, government ever more conflates itself with community.
As long as some groups continue to appeal to government for public validation of their lifestyle, and as long as people are taught that religion is merely something one does “on Sunday, in church,” the less surprising it is that the Left, and Americans more broadly, are losing an appreciation for religious freedom. We can hope that the true freedom provided by a society where civic formation can occur without outsourcing nearly all questions of right and wrong to the state’s discretion will reveal itself. Our generation seems increasingly unaware of it.
William J. Haun, Esq., writes from Chevy Chase, Maryland.