Religious freedom – an eternal conflict?


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.


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.”

The not-so-little Sisters of the Poor

On Monday last, William McGurn, columnist with the Wall Street Journal, wrote a powerful oped piece about the battling Little – or not so little, it now seems – Sisters of the Poor whom he describes as “front and center” in the battle for freedom of conscience in America.

He recalls the Bing Crosby classic “The Bells of St. Mary’s,” where a nun teaches a bullied boy to fight back, even though she herself believes in turning the other cheek.

Today (April 9), when they will be at Notre Dame to accept an award from the Center for Ethics and Culture for their work upholding the worth and dignity of every human life, the Little Sisters have an opportunity to do the same. Two weeks ago, they were in the US Supreme Court battling the Obama administration’s contraceptive mandate. Front and centre? Dead on.

Perhaps while on campus, McGurn suggests, the Little Sisters could take a page from Hollywood—and put some fight back into the Fighting Irish. He wrote:

Sister Mary Benedict (Ingrid Bergman) gives a boxing lesson in ‘The Bells of St. Mary’s’ (1945).

The Little Sisters are front and center in the challenge to the Affordable Care Act mandate that requires them to change their health-care plan to offer employees contraceptives, sterilization procedures and abortion-inducing drugs—all contrary to Catholic teaching. The Little Sisters argue the administration is forcing them to choose between their faith and the loving care they provide men and women too old or too poor to care for themselves.

Notre Dame faces the same mandate. There, alas, the similarities end.

At the heart of the government’s case is a phony accommodation for objecting nonprofits. All it wants from the Little Sisters or Notre Dame, it says, is a signed “opt-out.”

In fact, the notice the Obama administration demands is not an opt-out (which the Little Sisters would happily sign) but the legal authorization to have their health plan commandeered. Remember, if the federal government wanted to distribute contraceptives on its own, there would be no Supreme Court fight.

The fight has been joined for two reasons. First, the Obama administration insists on having these contraceptives distributed through the Little Sisters’ own plan. Second, it has at the same time underestimated the pluck and mettle of these women.

For even with courts ruling against them and the threat of fines of $70 million a year, the Little Sisters consistently refused to bend.

And Notre Dame? Big ol’ shake-down-the-thunder Notre Dame, with its $10 billion endowment? Under pressure, the Irish signed.

It wasn’t the only mixed signal. In July 2013, when the White House announced its final rules for its fake accommodation, most objectors who had their earlier suits dismissed because they were not ripe simply refiled. But Notre Dame dithered, and didn’t refile until just three weeks before the mandate’s requirements were to take effect. When they lost on appeal they signed the form to avoid the fines while the litigation proceeded.

Is it any wonder that some observers, such as the trial judge who heard the case, say Notre Dame’s actions suggest it doesn’t really believe what it claims it believes?

Cue to the more recent announcement from Notre Dame that it will bestow on Joe Biden its Laetare Medal, the oldest award in American Catholicism. Not only does Vice President Biden have a long and loud public record in opposition to Catholic teaching on abortion and marriage, he is the second-highest official in an administration that Notre Dame has accused in court of forcing it to “violate its own conscience.”

Mr. Biden will receive the Laetare at commencement alongside former House Speaker John Boehner, a Republican. In choosing the duo, Notre Dame’s president, Father John Jenkins, says the school is striking a blow against the “toxic political environment.”

Presumably contributors to our toxic environment include the local bishop, who has spoken out against the award. For Notre Dame is doing the one thing the bishops have asked Catholic institutions not to do: give those who act in defiance of the church’s fundamental moral principles “awards, honors or platforms which would suggest support for their actions.”

How thoroughly Obamalike Notre Dame has been here, coupling an in-your-face award with the suggestion that anyone who has an argument to the contrary must be uncivil. On top of this, the university gets a prince of the church—Washington’s Cardinal Donald Wuerl—to come out for an honorary degree, providing an imprimatur that effectively big-foots the local bishop and, as the National Catholic Reporter gleefully notes, undermines the bishops’ own 2004 statement on Catholics in public life.

And the intellectual defense of the claim that Mr. Biden’s “genius,” as the Laetare news release puts it, has “illustrated the ideals of the Church”? That there is no connection between a politician and his policy record.

All in all, it’s a sad message Notre Dame sends: Principles are a fine thing—just don’t let them get in the way of a comfortable place in society.

The good news is, the Little Sisters do not punt. And if freedom does prevail over this mandate, it will be in good part because these women put it all on the line when others—far wealthier and better connected—took the road more timid.

Originally at:

Et tu Disney?


Christians truly are at a head-scratching moment as they confront the drift of the modern secular world. Drift indeed may be a too gentle a phenomenon to describe what is bearing down on them. It is much more like a deluge and so much so that not a few of them must be contemplating building an Ark. They have wished for better for this world, have worked for its configuration to a model of our species’ true nature but now appear to have their backs against the wall.  They continue living in this secular society hoping for peaceful coexistence with those who do not see our nature or our world in the same way as they do. With each day that passes this hope is challenged more and more.

For decades now there has been concern and debate among believing and conscientious Christians about their representation in the legislative assemblies of the Western world. In jurisdictions stretching from the United Kingdom, through Ireland, France and Spain to the United States and Canada, national and federal chambers have one by one enshrined laws which contravene central moral principles of their faith.

These legislatures have now set out on a path to recalibrate their respective societies according to the fundamental principles of an anthropology alien to much of what Christians both rationally and religiously know and believe to represent the true nature of the human species.Today the political establishment seems to be turning its back on the Christian ethics which for 1700 years have been advancing as the standard behind our laws.

But this is not really their biggest problem. The first Christian communities on the planet lived under such regimes, managing a level of coexistence which enabled them to survive, thrive and evangelise – barring sporadic episodes of paranoid persecution. The forces which from time to time set out to destroy them were for the most part inept and dysfunctional. The Edict of Milan in 313 brought the political establishment to its senses and outlawed intolerance against Christians.

Now in the 21st century, through a creeping process in the legislatures of formerly Christian countries across the globe, the notional Edict of Milan has been revoked and the right of Christians to practice and live by the principles of their religion is now no longer being tolerated. This, of course, has happened before, but never in a way in which it is happening now.

Within a few decades of the death of the Emperor Constantine, his successor,  Julian, tried to reverse the Edict. For that abortive attempt he is known in history as Julian the Apostate. Then came the armies of Islam which wiped out Christianity in half the known world, and threatened to do so in the other half. Nearer to our own time the French Revolution sent thousands of Christians to their deaths. Then in the last century the twin scourges of Marxism and Nazi ideology did the same.


On all those occasions the challenge was met and the threat subsided.

But now it is different. In our age there is a new element. It would seem that the grass roots have been to a degree, transformed. Add to this the sad trend among the political classes of abandoning any pretension to leadership. They seem to be followers of fashion and are now turning their backs on Christian values because that is the way they think the wind is blowing. They unashamedly leave their consciences at the door when they enter legislative assemblies. Christians are being regularly told now that they are on the wrong side of history.

The character of the modern state compounds the problem for Christians. In 313 the Roman Empire may have covered the lion’s share of the known world. Despite, however, the impression of power it has left us with, its totalitarian reach was minuscule in comparison with the reach modern governments have into our lives.  We tolerate this totalitarianism because it is accepted as democratic – up to a point – and is seen to be “in our best interests”.

Is it either? This is now the question that is preoccupying many of us, Christians or not. This question takes us away beyond the Christian-secular debate. Nevertheless, the essential issue, which many see affecting our lives, is at the heart of the predicament of the Christian in the modern 21st century world. A tyrannical populism, driven by ambiguously democratic forces, now seems rampant in the public square. A formerly benign Leviathan, called up to help secure the common good, has now gone native. The threat he poses to the believing Christian is exemplified in the news this week – reported in Time magazine and elsewhere – about big business’ latest foray into the culture wars. Time tells us:

Disney says it will not film in the state of Georgia if a bill, which critics say would effectively legalize discrimination based on sexual preferences, becomes law. Gov. Nathan Deal has until May 3 to sign or veto the Free Exercise Protection Act, which protects faith-based organizations that refuse to provide services that would violate their beliefs—such as performing gay marriages, according to the Los Angeles Times.

Add to this what we remember of the relentless drive of big media and internet corporations which successfully pushed the political establishment to legalise same-sex marriage over the past few years and we have every right to ask what has happened to the democratic process.

The answer may be simple. These unelected corporations in their turn, like the politicians, are responding to a populist new reading of the nature of our species. They are driven by the market and they are reading the bottom line – follow the money.

Christians look on in dismay as all this unfolds. Not only are their values being disregarded. Their personal freedom, their freedom of association and their freedom of conscience is being threatened and increasingly denied. The consciences of the Little Sisters of the Poor, the future of the work they undertook to dedicate their lives to for the love of their God and the good of mankind is now in the hands and at the mercy of eight judges of the US Supreme Court. Should the Court decide in their favour – and I wouldn’t want to bet on it – there will be outrage and cries for their blood.

What Christians see before them is a population subverted by a reading of our nature which distorts and destroys what they see as some of the most precious truths about humanity. Not only has that happened but that same popular will is now seeking to tyrannically impose that vision of humanity on all. Coexistence is not on offer  – and it is not just being denied by Disney.

What Christians are now asking is where did this reading of our nature come from? How did it take hold? German author Gabriele Kuby asks all these questions in her book, The Global Sexual Revolution: Destruction of Freedom in the Name of Freedom – now translated into English. In summary, her argument is this:

The core of the global cultural revolution is the deliberate confusion of sexual norms. It is the culmination of a metaphysical revolution as well–a shifting of the fundamental ground upon which we stand and build a culture, even a civilization. Instead of desire being subjected to natural, social, moral, and transcendent orders, the identity of man and woman is dissolved, and free rein given to the maximum fulfilment of polymorphous urges, with no ultimate purpose or meaning.

Kuby surveys gender ideology and LGBT demands, the devastating effects of pornography and sex-education, attacks on freedom of speech and religion, the corruption of language, and much more. From the movement’s trailblazers to the post-Obergefell landscape, she documents in meticulous detail how the tentacles of a budding totalitarian regime are slowly gripping the world in an insidious stranglehold. Here on full display are the re-education techniques of the new permanent revolution, which has migrated from politics and economics to sex.

Kuby’s work advocates one viable response, not just for the Christian, but for all interested in the true good of humanity. It is essentially a call to action for all to redouble their efforts to preserve freedom of religion, freedom of speech, and in particular the freedom of parents to educate their children according to their own beliefs, so that the family may endure as the foundation upon which any healthy society is built.

And where does all this leave the ordinary Christian who conscientiously wants to live and practice the mandate he or she considers they have received from Christ and which is summarised neatly in the Catechism of the Catholic Church, (900):

Since, like all the faithful, lay Christians are entrusted by God with the apostolate by virtue of their Baptism and Confirmation, they have the right and duty, individually or grouped in associations, to work so that the divine message of salvation may be known and accepted by all men throughout the earth. This duty is the more pressing when it is only through them that men can hear the Gospel and know Christ. Their activity in ecclesial communities is so necessary that, for the most part, the apostolate of the pastors cannot be fully effective without it.

The chances are it will leave them in prison. Kuby’s book enumerates more than one case where it has done so.

But Christian culture is not dead, or even dying. It is taking stock and – although wrong responses are never off the option list which may be presented for action – it will survive and thrive.

From the earliest days of the history of their Faith, the Christian community was assailed by opposing forces, from within as well as from without. It will never, it seems, be otherwise. Each struggle in which they have had to engage has presented new challenges, new issues and new dangers, or at least new variations on old dangers. On every occasion solutions have been hammered out and victory has lead it to new and even richer landscapes. Believing Christians may have to scratch their heads a little more but they do not doubt that they will also prevail in the struggles they face today.

(Updated on 26 March with the following sentence from the original draft. It is in the third paragraph and was inadvertently committed from the first posting:  Today the political establishment seems to be turning its back on the Christian ethics which for 1700 years have been advancing as the standard behind our laws. )