Bench Memos

Law & the Courts

Discriminating Against Religious Liberty

Mosaic, a journal of Jewish thought, has two very interesting essays on the ongoing legal battle over LGBT issues in which, as history professor Richard Samuelson puts it, “the radioactive charge of ‘discrimination,’ borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.”

In “Who’s Afraid of Religious Liberty?,” Samuelson explains how over the past 50 years America’s formerly “robust civil society has become increasingly subject to government regulation.” The Civil Rights Act of 1964 played an essential role in ending state-enforced segregation, but it also had the secondary effect of changing the broader “American understanding of the job of government vis-à-vis the liberty of citizens.” In particular, many Americans now believe that “it is the government’s job to prevent any and all discrimination,” and they seem not to care that such belief “is pushing government more and more deeply into our daily affairs” and is “exacerbat[ing] [social tensions] by establishing a permanent relationship between growing classes of legally recognized victims and their designated protectors at every level of society.”

Samuelson nicely sums things up:

Today’s post-Christian, anti-Christian bigots have set themselves against the “large and liberal policy” that to George Washington also left Jews free to be Jews, to associate with whom they chose, and to live by the teachings and practices of their tradition: liberties that, along with legal equality, became enshrined as of natural right in the American Constitution. One would hope that this same large and liberal policy lies so deep in the American DNA that the national immune system will finally respond in time to repulse the latest attack on it. Doing so, however, will entail recovering both specific laws and an idea of justice based upon treating Americans as individuals who “all possess alike liberty of conscience and immunities of citizenship”—that is, upon the ideal of live and let live.

In “How Anti-Discrimination Became a Religion, and What It Means for Judaism,” law professor David E. Bernstein, responding to Samuelson’s essay, broadly concurs. Bernstein offers three reasons “why traditional religious perspectives are increasingly losing out to legal challenges mounted under the rubric of anti-discrimination”:

The first is the gradual transformation of the primary rationale for anti-discrimination laws. These started as part of an effort to redress the exclusion of African-Americans and others from mainstream American life. Because of that relatively defined goal, the framers of early civil-rights legislation, as Samuelson notes, were content to provide exemptions from its stringencies for minor economic players, such as landlords who were living on their own property.

Over time, however, Americans gravitated to the notion that discrimination, per se, is immoral and harmful and must be forcibly suppressed, even if the economic consequences are minimal or nonexistent. We have reached a point where, if even one out of hundreds of local wedding photographers declines for religious reasons to photograph a same-sex wedding, that lone photographer is seen by many to have committed a grave offense deserving of punishment.

Another factor favoring anti-discrimination laws over religious liberty is that the left, which traditionally fought for both religious liberty and non-discrimination, has made a virtual religion out of the latter while largely abandoning traditional religion….

Many secularists see adherence to longstanding moral teachings as compelling evidence of irrational animus. Secular liberals seem unable to discern why—unless out of a prejudiced hostility to women’s rights—a Catholic university should decline to provide its employees with insurance coverage for birth control. This failure of moral imagination is quite staggering, especially given that progressives consider themselves to be exceptionally open-minded and tolerant of diversity.

Still another, related factor in the rout of religious liberty is the unwillingness of the American Civil Liberties Union and other one-time supporters of the free exercise of religion to defend the rights of traditionalist Christians lest, by doing so, they fall on the wrong side of the culture wars.

(I addressed this same topic in my 2013 testimony to the U.S. Commission on Civil Rights.)

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