Politics & Policy

Religious Liberty: The Necessary Fight

Supporting the Hobby Lobby decision at the Supreme Court, June 30, 2014. (Scott Olson/Getty)

In more than two decades spent litigating to preserve religious liberty in this country, one thing has become abundantly clear to me — millions of Christians don’t want this fight. It’s not that they’re reluctant warriors; they’re not warriors at all, and they will look for almost any excuse to stay on the sidelines.

There are no shortage of Christian pundits willing to soothe their consciences. Some tell them that defending America’s first freedom isn’t “loving” or “compassionate.” Some even adopt the Left’s language and argue that religious liberty is a mere pretext for bigotry. But perhaps the most destructive (and seductive) argument of all is that conservatives are overreacting, and the entire fight does more harm than good — i.e., that controversial religious-liberty bills are a solution in search of a problem.

Writing in The Atlantic, Jonathan Merritt presents the textbook example of this argument, asserting that conservatives are “fighting ghosts” and that the “problems these [religious-liberty] bills claim to solve don’t actually exist.” As the piece goes on, and he lays out example after example in an attempt to prove his point, Merritt makes clear he just doesn’t know the facts.

Let’s start with the counseling profession. Yesterday, Tennessee governor Bill Haslam signed into law a common-sense protection for mental-health counselors, immunizing them from liability when they refuse to treat clients whose “goals, outcomes, or behaviors” conflict with their own sincerely held beliefs. In other words, a Christian counselor doesn’t have to counsel someone in methods to make their adulterous or same-sex relationship more successful.

Merritt says that he’s interviewed Christian counselors and can’t find anyone who believes their religious liberty is at stake. He could and should have cast a wider net: I’ve personally advised counselors in Tennessee who expressed deep concern that they will be drafted into the sexual revolution. In fact, some feared that even the act of advocating for the new law could expose them to punitive action.

RELATED: Why Do LGBT Radicals Want to Cleanse the Counseling Profession of Christians?

That fear is well-founded. In 2014, the American Counseling Association made a number of significant changes to its code of ethics. It not only declared “promoting social justice” to be one of the “core professional values” of counselors, it made intentional revisions designed to require counselors to counsel clients even when clients seek outcomes that are antithetical to the counselor’s values.   

Specifically, the ACA called out two cases, Ward v. Polite (I was counsel on that case) and Keeton v. Anderson-Wiley (I wasn’t a counsel of record but worked with the plaintiff’s lawyers) where Christian students were ousted from counseling programs because they were unwilling to promote and facilitate same-sex relationships. The ACA wanted to make it crystal clear that its code of ethics would give no aid and comfort to values-based referrals. An ethics-revision task force specifically said that they were trying to close “a little ‘out’ in the old code.”

RELATED: Turning American Law Upside Down for the Transgendered

They chose to do so in a particularly Orwellian way. The new code requires re-education — telling counselors that they must “seek training” in those areas where “they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.” You don’t like gay marriage? Get thee to diversity training!

The argument is that unstable and dangerous perverts will exploit gender-neutral bathrooms to gain increased access to women and girls.

And that’s just one issue. Regarding gender-neutral bathrooms, Merritt ignites the same burnt-over straw man that the Left has been torching for months, claiming that conservative arguments against allowing men in women’s bathrooms and locker rooms are “based on stereotypes claiming transgender people are unstable and dangerous perverts.” Wrong, wrong, wrong. The argument is that unstable and dangerous perverts will exploit gender-neutral bathrooms to gain increased access to women and girls. I’m not worried about Caitlyn Jenner. I’m worried about actual sexual predators.

Finally, Merritt repeats the common (and mistaken) claim that religious-liberty laws such as the one vetoed in Georgia and those signed in Mississippi and North Carolina are practically useless, because those states’ public-accommodation laws don’t prohibit discrimination on the basis of sexual orientation or gender identity in the first place. In other words, there is no way that a Christian baker in Georgia or a Christian florist in Mississippi can be forced to participate in gay weddings to begin with, so why pass the law?

#share#This analysis ignores a number of crucial legal realities. State law may not prohibit discrimination based on sexual orientation or gender identity, but that doesn’t mean state governments can’t creatively manufacture their own de facto nondiscrimination regimes. In Georgia alone there are now two cases pending — one against the city of Atlanta and the other against Georgia’s Department of Public Health — in which government officials allegedly fired Christian employees because of their private speech on matters of sexual morality.

EDITORIAL: Capitulation on Religious-Liberty Laws Is Shameful and Shortsighted

The absence of an explicit statewide nondiscrimination law doesn’t prevent local governments or public colleges from passing (and vigorously enforcing) their own regulations, either. I’ve been personally involved in dozens of cases and controversies where public universities restrict religious liberty based on their own rules and regulations — often in states where public-accommodation laws don’t include protections for sexual orientation or gender identity.

The existence of vicious opposition isn’t evidence that your arguments are flawed; it means you’re on the right track.

Finally — as the Obama administration and federal courts have proven — bureaucrats and judges can “find” additional nondiscrimination protections even in pre-existing statutes. It would come as some surprise to the drafters of Title VII and Title IX, for example, that these statutes are now being interpreted by the EEOC, the Department of Education, and some federal courts to prohibit discrimination based on sexual orientation and gender identity — even though those words appear nowhere in the laws themselves.

When courts, bureaucrats, university administrators, and professional associations are stocked with sexual revolutionaries, corrective action is necessary. State law provides an imperfect remedy, but it can at least give people of faith one additional weapon in the battle against coercive secularism.

#related#It is undoubtedly true that religious-liberty battles tend to enrage the secular Left. Each public confrontation motivates social-justice warriors to destroy jobs in conservative communities and slander Christians in endless, bigoted online broadsides. But to argue that one shouldn’t fight censorship because it might make the censor angry is to simply surrender your liberty. The existence of vicious opposition isn’t evidence that your arguments are flawed; it means you’re on the right track.

Men have died to preserve our fundamental freedoms. Woe to this generation if we back down in the face of boycotts and hashtags. I’ve discussed this before, and I’ll discuss it again. The church was built by apostles who withstood beatings; too many modern Christians can’t even endure Tweetings. Secular fury is a fact of faithful Christian life, and if placating PayPal takes precedence over defending liberty, then we deserve our cultural and political fate.

— David French is an attorney, and a staff writer at National Review.


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