Religious liberty was planted in America by Protestants working on distinctively Protestant soil. Their handiwork was nonetheless supple enough to absorb the shock of Roman Catholicism during the nineteenth century, and to survive the death of the “implicit” Protestant establishment at the turn of the twentieth.
By the end of World War II, American religious liberty incorporated Judaism into the new “tri-faith” America. The term “Judeo-Christian tradition” was introduced into our national vocabulary to indicate this successful merger, or melding, of biblical religions. By that time, American religion had balkanized into more than 250 sects, at least according to one Supreme Court justice’s estimate. Another justice, Robert Jackson, quaintly observed in 1944 that “Scores of sects flourish in this country by teaching what to me are queer notions.” These odd groups included Jehovah’s Witnesses, who believed in no human government and held that God’s sovereignty over the universe was undivided. They refused to salute the flag, and they bitterly denounced Catholics. These Witnesses won signal religious liberty victories in cases where they did these very things!
In the 1960s, American religious liberty renewed itself by confronting and integrating rugged religious individualism. Existentialists who doubted God, and other loners who professed no creed and belonged to no sect, won Supreme Court victories for religious liberty. (For examples, see United States v. Seeger and Frazee v. Illinois).
Each of these encounters left its mark: religious liberty changed and grew stronger and more inclusive, even as America experienced profound secularization through the whole twentieth century. Religious liberty weathered that challenge, too, proving itself a most resilient “first freedom.” But today’s identity politics pose a very grave threat to religious liberty in America. The same-sex wedding vendor cases, most prominently including the continuing saga of Masterpiece Cakeshop, constitute the aggressive front of this threat.
For the first time in American history, it has become respectable to publicly oppose religious liberty and its supreme value in our polity. This unprecedented turn is ominous. It will not only diminish our constitutional law; it will remap our common life, for religious liberty has always been a linchpin of our political culture.
Rising Hostility toward Religion
Americans in the past often opposed particular claims of religious liberty—claims made by Latter-Day Saints who wanted to practice polygamy, by Catholics who resisted Protestant observances in public schools, or by Native American parents claiming their rightful authority to direct the religious upbringing of their children. In past debates about the precise scope of religious liberty, though, no one publicly questioned the great and general value of religious liberty itself.
What’s happening now is different. Opposition back then was to a specific activity of a particular religious group. What’s happening now is happening to religion across a broader front of issues. Meanwhile, the percentages of Americans who belong to any sort of religious body or say that they believe in God are at all-time lows.
The brunt of the new hostility to religious liberty is not being borne by religious minorities, either. Instead, Christians who adhere to what was until recently America’s common morality are its chief victims. In the past, even when Mormons, Catholics, or Indians found themselves on the losing side, no one associated religious liberty itself with unjust discrimination, hatred, or bigotry.
Now many do.
You might think that all of this is just another example of the sexual revolution threatening religious liberty, as it has for decades. Think again. I was aware of the rebellion against sexual morality while I was in high school; how could any teenage boy not notice the cleavage and innuendo even in prime-time television in the late 1960s and early 1970s? And I discovered that college life was in full debauch when I enrolled at Cornell in 1972. Yet the Religious Freedom Restoration Act passed unanimously in the House, with just three dissenting votes in the Senate—in 1993! Then-Representative Chuck Schumer introduced it in the House; liberal lion Ted Kennedy introduced it in the Senate.
The sexual revolution may be a necessary part of the gale-force headwind buffeting religious liberty. But sexual freedom itself is not nearly sufficient to threaten it. Only identity politics could do that.
The Threat of Identity Politics
Here are three of many possible illustrations of what I mean when I say that identity politics poses an especially great threat to religious liberty. They stem from three related errors.
The first is that what believers invariably understand themselves to be doing (steering clear of immoral involvement in the bad conduct of another person) is forcibly reconceptualized as an attack on the personal status or “identity” of a person self-identifying or presenting as a member of a supposedly vulnerable group. Thus, Masterpiece Cakeshop’s refusal to supply anyone, straight or gay, with a cake for celebrating an ersatz marriage is reconceptualized as discrimination by the owner against gay customers. Innkeepers who refuse to rent to fornicators are charged with discriminating on grounds of marital status. Employers who cannot conscientiously distribute contraceptives discriminate against women. Teenagers who refuse to disrobe in the presence of a member of the opposite sex demean that person’s self-understanding.
You get the idea.
This override of the believer’s self-understanding amounts to the sort of religious stereotyping that I used to think was well behind us. The gross mistakes in this way of thinking about Jack Phillips (the proprietor of Masterpiece Cakeshop) were cogently laid out here at Public Discourse by Professor Steven Smith, in an open letter to Justice Ginsburg.
Compounding this first error is the prevalent notion that where public authority recognizes the religious liberty of someone like Jack Phillips, the state puts its own “imprimatur” on Phillips’s unjust discrimination, and even on his normative premise that marriage between two men or two women is morally impossible.
Not so, as Professor Smith ably showed, and as I just suggested. Besides, no one ever suggested that when the Jehovah’s Witnesses won the flag salute case the Court was endorsing their denial of United States sovereignty in favor of God’s undivided sovereignty. Lawmakers who recognize Amish claims about limited schooling do not thereby ratify Old Order Anabaptist beliefs. You do not profess, endorse, ratify, or show the slightest sympathy with Native American beliefs by supporting their right of access to peyote-infused rituals. And so on. This claim about “imprimaturs” is jerry-rigged to make the facts of these cases fit an identity politics morality tale.
A third error builds on the first two. Often styled as “dignitary” harm, the idea seems to be that when you are refused a service due to the provider’s moral qualms about assisting you in certain activities, your personhood or identity is “demeaned,” and your “dignity” is attacked.
There are many mistakes in this line of thought. One mistake is about dignity itself, which has to do with the inherent qualities of persons that make them rights-bearers and worthy of respect. “Dignity,” properly understood, is not prone to be compromised by others’ bad behavior. But let’s set that mistake aside. It is ever more apparent that, in this context, we are really talking about perceived insult, about a same-sex couple’s feeling that they have been humiliated or demeaned, even though no word has been spoken, no gesture made, that means anything more than “It is against my conscience to participate in this activity.” In the realm of identity politics, self-esteem—at least for those who happen to be in favor—rules the day.
Obergefell v. Hodges traffics in this same identity politics. The opening sentence declares that liberty “includes . . . [the] right of persons within a lawful realm to define and express their identity.” The center of gravity in Obergefell is communal affirmation of each person’s intimate, and self-defining, choice of a companion to ward off “the universal fear that a lonely person call out only to find no one there.” Indeed, if you deleted from the majority opinion the complex of thoughts about “identity” (which could be summarized thus: the purpose of marriage law is to communicate the whole community’s affirmation of the same-sex couple’s self-defining choice to marry and thereby to avoid “demeaning” or “humiliating” them), there would not be a syllable of justification left in it.
The appeals of aggrieved sexual minorities could not threaten religious liberty if identity politics had not already significantly infiltrated and hollowed out religion itself. Before sexual identity could emerge as the colossus it is, religion had to be reduced from a set of beliefs and truth-claims about the way the cosmos really is to nothing more than one’s singular expression of ineffable spiritual experiences or of the collective identity of one’s religious tribe. Religion first had to be authoritatively re-described, against the self-understanding of many believers, as experience, or even as raw subjectivity, somehow walled off from the realms of genuine knowledge about reality, such as science and economics. The realm of “faith” is by now conceived of as some inner domain of feeling and emotion, outside the dominion of rationality.
Only after the public realm was secularized and religion privatized—treated as just one of many possible sources of personal “identity”—could American religious liberty be so threatened by the individual’s demand to define oneself sexually without having to endure moral criticism by others. And the only way for religious liberty to climb back out of this rabbit hole of subjectivity is for believers to insist that theirs is a worldview, an account of the way that reality, visible and invisible, the temporal and the eternal, really is.