Religious freedom – an eternal conflict?

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The long and winding road that leads to the double doors of religious tolerance and the tolerance of religious freedom will, it seems, never disappear. The history of mankind shows us this, as does the daily news of our own time.

Stephanie Slade, managing editor at Reason magazine and a Robert Novak Journalism Fellow, has written a long, – very long – powerful and sobering essay in the Jesuit-edited America Magazine, reflecting on the battles for religious freedom in the United States. No summary can do justice to the historical analysis which she offers us and all we can do here is highlight some of the evidence she puts before us to support her overall contention: the fight for religious liberty is never going to end. We’d better get used to it.

But it is not just an American story. It is a story which unfolds daily in almost every country in the world in one way or another – sometimes in the form of mild hostility, sometimes leading to martyrdom and unthinkable cruelty. Slade’s focus is on America and on the more institutional forms of intolerance and denial of freedom of conscience. Those of us in other jurisdictions within the democratic tradition can easily extrapolate from her analysis and see the parallels in our own public squares.

Populism is the bête noir on everyone’s political horizon just now. New Criterion, the heavyweight journal of ideas, has just published the seventh in a series of essays on the phenomenon and how it may be threatening to tear apart the trusted and tried political institutions through which we try to organise a civilised society. Populist movements across the democratic world no longer seem to trust those institutions.

But who is populist and who is not? One of the suggestions implicit in the historical picture presented to us by Slade is that populism, from both left and right, has being playing fast and loose with our politics and laws for a long time. Our fundamental freedoms, and especially our freedom of conscience and religion, have been suffering at the hands of populism for centuries.

Sometimes it changes sides and it cries stop, in defence of a freedom denied to “the other side”. The United States may now have experienced one such moment. Slade recounts a conversation on CNN.

“I feel the country was founded on Christian principles,” Sandra Long, an 80-year-old resident of Mahanoy City, Pa., and a lifelong Democrat, told CNN before the election. “And now, if our ministers don’t marry a gay couple or refuse to marry a gay couple, they can be arrested and taken to jail.”

Long was mistaken. Despite the Supreme Court’s legalization of gay marriage two years ago, ministers are not required to perform same-sex wedding ceremonies. But the perception that they might soon be—and that the government is continually encroaching on the ability of houses of worship and even individual Americans to live out their beliefs—seems to be widespread. Moreover, it likely played a role in the decision of many voters, such as Ms. Long, to support now-President Trump last November.

Megan McArdle, a columnist at Bloomberg View, wrote in December, “When you think that you may shortly see your church’s schools and your religious hospitals closed, and your job or business threatened in the private sphere by the economic equivalent of ‘convert or die,’ you will side with whoever does not seem to set its sights on your conservative beliefs. If that side is led by an intemperate man who more than occasionally says awful things … well, at least he doesn’t want to destroy you.”

The Catholic writer Mary Eberstadt, in her recent book It’s Dangerous to Believe, called this “the new intolerance” and said that what many believers “feel to the marrow these days is fear.”

“There is no doubt,” Slade says, “the concern is widespread. If the government can force family-run businesses to provide services for gay weddings and Catholic sisters to facilitate access to birth control, people are asking ‘what might be next?’ Could laws be on the way that criminalize traditional beliefs about sex and marriage? Or punish churches for excluding gay men and women from ministerial positions? Or, as Sandra Long assumed was already the case, compel houses of worship to host and solemnize same-sex weddings?”

The political left is of course quick to assure believers that their rights are safe. After all, they say, the First Amendment protects the freedom to believe whatever you want, and any attempt to constrain that freedom would surely be invalidated by the courts.” Really?

McArdle, doesn’t buy the response from the left which, she says, “has (mostly) been that this is so much whining, clinging to a victimhood belied by Christians’ social power and majority status. No one, they have been assured, wants to touch their freedom to worship, but when they enter the commercial realm, they have to abide by anti-discrimination laws, whatever their private beliefs.”

Mozilla’s founder, Brendan Eich, donated to an anti-gay-marriage campaign and was kicked out of his own company.

Slade is certainly unconvinced by this assurance. She quotes Douglas Laycock, a law professor at the University of Virginia who is an expert on issues of religious freedom. While Laycock thinks there is too much alarm about the issue he did acknowledge that the line is moving all the time. Even those pushing the line admit this openly. During arguments in Obergefell v. Hodges, the case that legalized same-sex marriage nationwide, Justice Samuel Alito asked the Obama administration’s lawyer whether a college could have its tax-exempt status revoked because it upholds traditional marriage. “It’s certainly going to be an issue,” the solicitor general replied. “I don’t deny that. I don’t deny that, Justice Alito. It is going to be an issue.”

But Slade shows us that the war is not a new one.

Ninety years before the U.S. Supreme Court heard arguments in the case of the Little Sisters of the Poor, another group of Catholic sisters appeared before the highest court in the land.

This time it was the Sisters of the Holy Names of Jesus and Mary. An Oregon law passed by voters, at the behest of the anti-Catholic Scottish Rite Masons, required all children to attend public schools. “The effect of this law will be, if upheld by the courts, to close every private school in the State,” The New York Times reported. “That was its purpose, openly avowed in public discussions preceding the election.”

The measure had the enthusiastic support not just of the state’s majority-Protestant electorate but also of the Ku Klux Klan, newly arrived in the Pacific Northwest. “We are against the Catholic machine which controls our nation,” explained “Kleagle Carter,” according to a book about the Oregon chapter of the Klan. It is a refrain being heard repeatedly in Ireland just now. “Dear Catholic Church, get out of our wombs,” one histrionic headline screamed at Catholics last week. But that’s another story.

The Oregon story had a happy ending: The Supreme Court justices unanimously struck down the statute.

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That does not reassure Slade because other violations of religious liberty did not have such a happy ending. More than 30 states have on their books to this day some form of legal prohibition on public dollars going to religious institutions. They are known as Blaine amendments, after the House Speaker James G. Blaine.

As with the Oregon private school ban, all accounts suggest that the Blaine amendments were motivated by deep animus toward Catholics. “They were passed in a series of outbursts of anti-Catholicism, there’s no doubt about the history,” Professor Laycock says. State-level “baby Blaines,” as some now call them, remain in force.

As bad as anti-Catholic sentiment has been at points in America’s past, however, it is nothing compared to the vitriol directed at smaller religious groups over the years. Just consider what the Mormons have had to suffer.

Justices Alito, Thomas and John Roberts noted in their dissenting opinion on one court challenge, ominously wrote, “those who value religious freedom have cause for great concern”.  Slade says that it is hard to escape the conclusion that strong forces hostile to traditional belief are on the march.

If a form of populism is not driving much of what Slade describes, what is? The glib phrases being bandied around about conservatives being on “the wrong side of history” betray a populism as sinister as anything on the right. It is not rational argument. Slade asks us to look at the history of the Supreme Court to see how much more than measured legal judgement is at play here.

If a study of Supreme Court history makes one thing clear, it is that there is no fixed line differentiating the kinds of laws that are acceptable under the First Amendment from the kinds that go too far. Where lawmakers and the courts come down on contested questions is often influenced by what a majority of Americans seem to favour.

None of the experts I talked to thought the Supreme Court literally keeps an eye on poll numbers as it hands down decisions. But they all agreed that as fallible humans, even the most upstanding jurists will be affected by the cultural zeitgeist.

Gay marriage is among the most vivid illustrations of that. For decades, public support for legal recognition of same-sex unions was a minority position. Between May 2011 and May 2012, according to Gallup, the numbers flipped. On May 9, 2012, President Obama suddenly announced that his views had “evolved” and he was now in favour of same-sex marriage. Thirteen months later, the Supreme Court ruled the federal Defence of Marriage Act unconstitutional. Two years after that, it struck down all state-wide bans on same-sex unions.

Within hours of the Obergefell decision, people began suggesting the precedent should be extended even further. Fredrik DeBoer wrote an article for Politico titled “It’s Time to Legalize Polygamy.” Similarly, in 2013, Jillian Keenan had argued at Slate that “Legalized polygamy…would actually help protect, empower, and strengthen women, children, and families.” If marrying whomever you want is a fundamental right, they wondered, shouldn’t the same be true of taking multiple spouses?

So what does Slade suggest we conclude from all this history?

She wants us to accept that institutional protections are only as strong as the underlying culture. If people are willing to see a minority group’s rights disregarded, neither the courts nor the Constitution is an airtight safeguard against abuse. But if the majority is unwilling to see liberties infringed, those in positions of authority are likely to take notice. Like it or not, popular culture has been in the driving seat for decades and conservative thinking has been in the back seat.

Slade reminds us that Martin Luther King Jr. famously said that the arc of the moral universe bends toward justice. “It might have been truer if he had said it can be bent, assuming enough people are willing to do the hard work of persuasion. In other words, if what counts as ‘religious freedom’ is eternally in dispute, it matters who shows up to the debate.”

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