Magazine | April 11, 2016, Issue

Breaking the Stained-Glass Ceiling

A strategy to defend religious liberty

Many people say that our society is facing a crisis of religious liberty. I do not quite agree. I think rather that, given the Supreme Court’s redefinition of marriage and the Health and Human Services mandate that employers provide insurance coverage for sterilization, abortifacients, and contraceptives, we are facing the greatest crisis of religious liberty in American history. Our response must be commensurate. Sound tactics in political and legal contests must be part of a bold strategic vision. Otherwise our religious liberty will evaporate, and the place of religion in our public life will shrink.

The government’s steely resolve to give believers no quarter has precedent. In the 19th-century campaign against polygamy, Uncle Sam was willing to drive the Church of Jesus Christ of Latter-day Saints underground. Also, for a century before passage of the American Indian Religious Freedom Act in 1978, the federal government sought to suppress American Indian religions, which it regarded as bundles of superstitions that kept Indians in poverty and ignorance.

Present assaults on religious liberty are different, and worse. In the government campaigns against Mormons and American Indians, relatively few were affected. Catholics, too, have always been a minority in America. But denominations and churches that until a generation ago taught against homosexual acts and the use of abortifacients constituted a vast majority of America’s churchgoers. Most Americans today still hold that abortion is wrong and that same-sex marriage is a contradiction in terms: Given the nature of marriage, a marital union of two men (or two women) is no more possible in truth than would be a marriage between three-year-olds. And they hold these positions not as rules, standards, or ideals but as moral truths, knowable by reason but also divinely confirmed and sanctioned.

The cutting edges of 19th-century conflict were small and precise: If you steered clear of polygamy and the Ghost Dance, you would be okay. Now the butcher, the baker, and the candlestick-maker can all run from Caesar’s writ of complicity in abortion and same-sex marriage, but they cannot hide. I teach at the nation’s leading Catholic university. In my wallet I carry the benefits card that the Obama administration obliges Notre Dame to secure for me so that my wife and daughters can get free abortifacients. And the civilly married gay employee and his spouse count just the same in the university’s benefits package as do my wife and I.

Our social world is being remapped. Human activity is being divided into two basic realms. The first is “public” life, defined expansively to include law, political affairs, and commercial and social intercourse. This space is to be governed by a secular orthodoxy from which only private reservation is permitted. “Those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their own homes,” as Justice Alito wrote in his dissent from the majority opinion in Obergefell v. Hodges.

In the public realm, religion may supply a common stock of phrases, images, and cultural references but not the reasons or arguments for public policy. In 2006, Barack Obama, then a senator, explained that “democracy demands that the religiously motivated translate their concerns into universal . . . values.” Religion, he argued, does not allow for compromise and is not subject to argument or amenable to reason. In other words, religion is irrational, or at least non-rational. “To base one’s life on such uncompromising commitments may be sublime,” Obama said, “but to base our policymaking on such commitments would be a dangerous thing.”

The only harbor in which religion is safe is the “private” sphere, an ever shrinking enclave of heart and home. There it is subsumed under the project of individual self-definition; it is assimilated to a person’s “conscience,” “dignity,” or “identity.” This sphere is suffused with will and imagination. Here the value of religion is measured according not to its objective truth but to its authenticity, its ability to empower, console, and express some subjective truth about one’s self. Religious liberty in the new dispensation is really a subcategory of the one Great Liberty given authoritative expression 24 years ago in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Justice Anthony Kennedy in Burwell v. Hobby Lobby wrote that the free exercise of religion is “essential” to preserving the “dignity” of those who choose to strive “for a self-definition shaped by their religious precepts.” This same liberty anchors his opinion for the majority in Obergefell: “The right to marry . . . dignifies couples who ‘wish to define themselves by their commitment to each other.’” In Casey, Kennedy declared that a woman’s abortion decision “may originate within the zone of conscience and belief” and must be settled by “her own conception of her spiritual imperatives.” Senator Obama described religion as a person’s “narrative arc,” which “relieve[s] a chronic loneliness, . . . an assurance that somebody out there cares about them, is listening to them — that they are not just destined to travel down that long highway toward nothingness.”

Believers might fare pretty well in this brave new world when their claims affect diffuse governmental interests in security or administrative efficiency, especially when they represent beliefs that are marginal and unlikely to elicit social change. But when a believer goes up against other persons exercising their own right of self-definition but in sexual, not religious, terms, the believer fares poorly, especially when he represents orthodox Christian beliefs, because accommodating them would mean that they could be used to deny to sexual minorities what the new secular orthodoxy holds to be the requirements of basic justice. In other words, meeting the moral requirements of orthodox Christians would redraw the social map. Meeting those of prisoners who keep kosher, for example, would not. And so the government exempts only houses of worship from the HHS mandate; from the legal implications of Obergefell, the government exempts only clergy unwilling to perform same-sex weddings.

As long as religion is defined and valued mainly as a source of personal identity and as a personal motivation for those in religious social services, the fight to preserve religious liberty is doomed. Its defenders soon meet a stained-glass ceiling. Legal and political arguments cast in the adversaries’ terms of engagement may produce some victories for some believers, but not many, and none for long.

One reason is that fear of violating another person’s attempt at self-definition haunts every orthodox believer. The fear is propelled by the great political imperative of the day: equality of “dignity,” which amounts to a right to be respected for all of one’s choices, commitments, and beliefs defining one’s life.

Another reason that religious liberty grounded in the present terms of engagement is gravely endangered is that the Christian moral life is marked by what I call its asymmetry, which is a function of the Christian’s adherence to some exceptionless negative moral norms, such as “adultery is never morally permissible.” (And so on down the line of the Decalogue and of the moral tradition that it anchors: no slavery or intentional killing of innocents or false witness under oath, ever.) Christians do not reason that performing a few abortions or one same-sex wedding is okay because that will keep them in the game to assist at many live births or to perform a hundred traditional, opposite-sex weddings. No one may do evil so that good may come of it, Saint Paul teaches in Romans. Christians are called to suffer privation — and, in the limit case, martyrdom — rather than do evil. This means that the conscientious among them will abandon their trade or profession, or be purged from it, when it becomes clear that the price of staying in is to facilitate abortion or same-sex marriage.

“Conscience” refers to the good that a person enjoys when he acts in conformity with his judgments and feelings. For adherents of theistic religions, “conscience” includes a distinctive additional dimension: harmony with God, through conforming their actions to his will. It is appropriate in many cases to argue for special treatment for those acting on religious or moral convictions. Remember that the case for believers is always richer, and stronger, precisely because it includes “conscience” in both its most basic meaning (conformity to personal judgments and feelings) and its special meaning as conformity to the will of God.

Religious liberty, as its advocates must never tire of explaining, rests in part on an understanding not only that religion is compatible with reason but that much of religion is knowable through reason. The American political tradition through roughly the last quarter of the 20th century included the affirmation of foundational divine truths, such as those that appear on the back of the dollar bill, in the Pledge of Allegiance, and in countless other testimonies to the existence of a good God who created all and who remains involved in human affairs, weaving them providentially into an eternal plan. From time out of mind, Americans have affirmed also that, as Saint Paul wrote to the Christians in Rome, the revealed law is written on the hearts even of unbelievers.

In our public life today, however, the concept of natural religion as truths concerning God and knowable through reason — the concept such as we find it in the Declaration of Independence and in Lincoln’s Second Inaugural — is shattered. “In God We Trust” has been reduced to a civic totem. It is no longer accepted as a proposition about the order of the cosmos and the proper human response to it. “Under God” in the Pledge of Allegiance is treated as a “sectarian” invocation, indistinguishable from a truth (such as the doctrine of the Trinity) known only through the revealed Word.

Where the overriding constitutional and legal understanding of religion, conscience, and therefore religious liberty collapses into an undifferentiated liberty of self-definition, an action that is informed or motivated by religion but violates another person’s self-esteem and therefore “dignity” will be judged harmful and undeserving of any protection under the “objective” law of a pluralistic democracy. The only way to break the stained-glass ceiling is to sharply distinguish religion from issues of personal identity and emphasize its public value. To that end, proponents of religious liberty should maintain, in season and out of season, that religion concerns the truth about reality and that some religions provide a more plausible account of all that there is than does any secular story.

– Mr. Bradley is a professor of law at the University of Notre Dame.

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