Bench Memos

Wading Into Other People’s Consciences

Yesterday, the latest column by Kirsten Powers at USA Today made quite a splash.  Commenting on a proposed law protecting religious freedom, which was passed by the lower house of the Kansas legislature but killed by the upper house, Powers goes straightaway to hypebole.  This would be like reviving Jim Crow for gay people!  Never mind, as Ryan Anderson pointed out yesterday, that Jim Crow laws coerced businesses to segregate the races and deal with them separarately, while the proposed Kansas law would free businesses and others from state coercion.  Powers mostly directed her fire at those people who, for religious reasons, would prefer not to participate in the “wedding” ceremonies of same-sex couples, as bakers, florists, or photographers, for instance. 

She wrote: “Whether Christians have the legal right to discriminate should be a moot point because Christianity doesn’t prohibit serving a gay couple getting married.”  And she enlisted a couple of Christian pastors who feel about this as she does.  Fine.  But as Ramesh Ponnuru noted, “the key point . . . is that whether the state should compel someone to violate his conscience or protect him in his exercise of it cannot turn on the contents of that conscience.”  And the contents of Kirsten Powers’ conscience, or of her favorite pastors’ consciences, are evidently very different from the consciences of other religious people. 

Andrew Walker met Powers’ argument at First Thoughts yesterday, squarely on the ground Powers herself chose, of the meaning of Christian principles.  And if Christians and others want to argue with one another’s consciences, that’s fine.  (Conscience, after all, isn’t what your “gut” tells you, but what your reason tells you about the application of your most considered moral and religious principles.)

But the government cannot rightly participate in that conversation, about what a Christian (or any other religious) conscience requires of anyone.  As I argued last week at Canon & Culture, when the government “does theology,” as it does whenever it makes a judgment that someone’s sincere claim of conscience is not to be credited as a genuine stand on a religious principle, it violates the freedom of religion.  So, in the HHS mandate cases, when the government argues that the mandate imposes no “substantial burden” on employers who object on religious grounds to providing contraceptives and abortifacients to their employees, and when judges say (as one judge did in November) that the mandate doesn’t require anyone “to do anything that violates the Catholic Church’s disapproval of contraception,” in the very moment when they decide that no one’s religious freedom has been violated, they’ve violated it.

Kirsten Powers has spoken out on behalf of the Little Sisters of the Poor, and rightly so.  But Hobby Lobby and other for-profit employers are in an indistinguishable situation.  And small business owners threatened with the destruction of their livelihoods by a government forcing them to do business in ways that violate their religious beliefs about the sanctity of marriage are in exactly the same position too.  The proposed Kansas legislation was a good-faith attempt to protect the consciences of religious believers.  If such a bill needs improvement, then improve it.  But the liberal reaction to it, as though it were the second coming of Jim Crow, is wildly out of proportion.  And the claim that such beleaguered Christians don’t have to be respected because “that’s not how I would behave as a Christian,” is a substitution of your conscience for theirs, and a license for the invasion of religious freedom by the government.


Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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