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September 27, 2013

The Killing of Religious Liberty

By William McGurn

(A speech delivered September 19  at a symposium on “Religious Freedom Under Obamacare,” the University of Notre Dame, South Bend, Indiana.)

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The official title of this talk, “New Gods on the Public Square,” is a cleaned-up version of what it would be at the New York Post, where I now work as editorial page editor: “Tolerance, Health and Sex: How America’s New Holy Trinity is Murdering Religious Liberty.”

The great challenge of the contraceptive mandate is not legal, political, or even constitutional. The primary challenge is an evolving orthodoxy that no longer assumes religion in American public life is a good thing, much less that it ought to be constitutionally privileged. The contraceptive mandate is more the logical extension of this new orthodoxy than its instigation.

My proposition has three parts. First, the distinctive freedoms our constitution offered – I am thinking mostly of speech and assembly – translated in practice to a public square that has been crowded with institutions, including wide varieties of churches and related religious institutions. These defined American civic society in a way that Tocqueville rightly found unique.

Second, the basic assumptions that went into this arrangement were that a free people needed morality and self-control – and that for most people religion was the most reliable source.

Finally, my main point: these assumptions have all changed, largely because of a sexual revolution that helped give us a different understanding of rights and is now taking us to a correspondingly different understanding of the role of churches. Increasingly the old assumptions are being replaced by the new gods on the public square I mentioned.

Increasingly Fragile Freedom

And my fear is this: Even with the Constitution firmly on our side, even if we are upheld in the courts, religious liberty will become increasingly fragile because the understandings about human nature and the role of religion upon which they rest are no longer ascendant in the institutions that forge and shape public opinion.

…The fact of the founding was this. Free of a national church and a crown, American society has from the beginning been thick with private associations. This American penchant for private associations is the basis for one of Tocqueville's most famous observations:

“Americans of all ages, all conditions, all minds constantly unite,” he said. “Not only do they have commercial and industrial associations in which all take part, but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fêtes, to found seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons, schools.”

Now, there’s several ways to look at this. One is to consider how the diffusion of civil society over multitudes of private institutions helps guarantee freedom for all by diluting the power and reach of government. That’s what Supreme Court Chief Justice John Roberts was getting at in Hosanna Tabor when he said private associations “act as critical buffers between the individual and the power of the state.”

Another aspect is the merely practical. That is to say, the profusion of church and charitable groups make our communities better off in a way that would be almost impossible to replicate if they were to be shoved off the square.

An Army of Religious Volunteers

A year or so ago, I wrote an article in the Wall Street Journal attempting to give a window into what, say, Chicago would look like if Catholic Charities were forced out of its public work because of the contraceptive mandate. Each day this wonderful organization shows what it means to be our brother's keeper, in works that include everything from ministering to people with HIV/AIDS and housing seniors to training people for jobs, assisting refugees and immigrants, stocking food pantries and helping struggling families become self- sufficient.

The church provides far better value than the government in all these areas for a simple reason: for every staffer, it can count on seven volunteers. That works out to a volunteer army of 17,000 people – larger than Chicago's police force. Now think what Chicago would be like if this army is no longer allowed to do its good work. Think what it would mean to replace -- if you could find enough replacements -- all those dedicated volunteers with government workers. And ask yourself this: Who’s going to pay the highest price?

That’s the practical aspect of what churches contribute by way of their presence on America’s public square.

Which leads me to my second point. Now, I have no intention of wading into the debate about whether the Founders were Christians or Deists. For my purposes, it doesn’t matter. These were men fully conversant with Enlightenment thinking. They understood Enlightenment ethics. Yet when it came to the American experiment in liberty, the choices they made show they believed religion as traditionally understood was vital to the success of freedom.

What the Founders Thought

We are all familiar with their remarks.

Washington: religion is “a necessary spring of popular government.”

John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Ben Franklin, in arguing for prayer at the Constitutional Convention: “The longer I live, the more convincing proofs I see of this Truth – that God governs in the Affairs of Men. I also believe that without his concurring Aid, we shall succeed in this political building no better than the builders of Babel.”

These are not obscure statements. These have been widely quoted for centuries. As a Library of Congress exhibit on religion and the American founding puts it, “it is no exaggeration to say that on Sundays in Washington during the administrations of Thomas Jefferson and of James Madison the state became the church.” By this is meant that these presidents attended religious services in federal buildings. Though Jefferson and Madison are generally deemed among the most hostile to traditional Christian doctrine, they attended these religious services in these government buildings, as the exhibit goes on to say, because they “consciously and deliberately were offering symbolic support to religion as a prop for republican government.”

Just Expressions of Bigotry?

Today this is all gone. By “gone,” I don’t mean there aren’t Americans who assent to this understanding, even large numbers of Americans. I mean that the view no longer animates the body politic and large parts of the public. I would go further: today many Americans believe religion is about advancing claims that at best cannot be defended rationally and at worst are really just expressions of bigotry. They may not be right – I believe they are in fact wrong – but this is what growing numbers believe.

Any number of reasons might explain this. Tonight I confine myself to one: the sexual revolution.

Whatever the old assumptions about human nature and limited government, the sexual revolution has ripped them up at the root. And we see what has replaced it in Anthony Kennedy’s passage in Planned Parenthood v. Casey: “At the heart of liberty,” wrote Kennedy, “is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

How far that is from the idea that at the heart of liberty are self-evident truths ... that there exist Laws of Nature and of Nature’s God we do well not to defy ... and that the most precious and unalienable rights we have come from our Creator. Yet how apropos the Kennedy formulation is for our day, when Bradley Manning can decree himself a woman and the New York Times agrees ... when the quick retort to any appeal to any suggestion of a sexual norm is Who Are You To Judge? ... and when churches supporting moms and dads trying to raise their children with traditional notions about human sexuality are thought to be spreading hate.

In his 2011 McElroy Lecture, Douglas Laycock sums up what’s going on this way: “Disagreements about sexual morality, and disagreements about the truth and significance of any and all religions, are re-opening the debate over first principles.”

If he is right, even our religious liberty victories may inadvertently encourage the view that we have no business privileging religion. Let’s take the recent Hosanna Tabor decision I mentioned earlier. In a 9 to 0 decision, the Supreme Court held that churches get to determine their own ministers, and these ministers are entitled to the ministerial exemption from employment laws that even the Obama administration recognizes, albeit in a highly narrow form.

What Was the Court Saying?

Here’s the problem: for most ordinary Americans, who are not looking at this as constitutional lawyers, it sounds as though what the Court is saying in Hosanna Tabor is that the churches have some weird privilege to do nasty things that would be against the law if any of the rest of us did them.

The more honest objectors acknowledge this. Most of you are familiar with Brian Leiter’s Why Tolerate Religion? Some of you might point out that he misunderstands religion, and I would agree. But for someone who does not believe religion has any particular insight into human nature, and sees religion, at least as it is traditionally understood, as the enemy of important and widely held ideals about health, equality, and tolerance, it is surely logical to ask why it should merit special protections. Especially if you believe that religion is at its heart subjective and incapable of making rational arguments that can persuade non-believers.

This is what I mean by new gods. And in the contraceptive mandate all three come wrapped into one.

Tolerance: Look at how those arguing for religious liberty are held to be not just wrong but engaged in a war on women.

On health: So supreme has the right to reproductive health become, even Americans who have strong moral objections to contraception, sterilization and drugs that cause abortion are told they must not only tolerate these things but pay for them when anyone else wants them.

On sexual freedom: We are free to keep to our teachings about human sexuality within our homes and our churches. Once we step outside, however, we are again told we must support and underwrite whatever sexual lifestyle others choose.

Like Bryan in the Scopes Trial

If I am right, what this means is that we who make the case for religious liberty find ourselves in the position of Williams Jennings Bryan in the Scopes trial: we speak a language we have not noticed has been abandoned by much of the rest of America. And by the way, for the record, William Jennings Bryan won that case, much as his side lost the war.

Gerry Bradley of this university’s law school puts it this way:

This far into the Age of Aquarius, no more needs to be said about the meaning and seductive appeal of “equal sexual liberty.” It is the emerging public orthodoxy about where sexual satisfaction, expression, and identity fit into the good life, and about the government’s responsibilities to establish conditions that make this life achievable for all with ease. This orthodoxy commands the cultural heights and has achieved ascendancy in the academy. We are in the midst of a high-stakes fight over its grip on our law. The outcome of this battle is in doubt.

Gerry has it right. These are the new gods of the public square, and they are very jealous gods.

The Lost Language of Liberty

It’s quite possible to imagine a free society based on principles that are agnostic about man's ultimate purpose or the Creator who fashioned us in His image. At time I have imagined such a society myself, and have amused myself by sketching out what a Declaration and Constitution might look like for such a society. The problem is, while it may exist in theory it is decidedly not the society imagined in 1776, bequeathed us in 1787, and handed down, with its animating assumptions largely intact, for most of our
history. Today, alas, the chief thing we appear to take from those founding documents is Jefferson's "pursuit of happiness" – and here we do so in a way that Jefferson, who essentially equated it with the pursuit of virtue, would not recognize. And this is having real consequences: in American society, in the Supreme Court, and in our understanding of who we are as a people.
So while in theory a society that has lost its faith might still sustain an understanding of freedom that safeguards religious liberty, in practice we are seeing that the likelier consequence of such an evolution will be a different society with a different understanding of rights and a different understanding of the role of our churches and their attendant institutions. What is the answer? The answer is to restore the lost language of liberty: whence come these strange truths that were self-evident to our fathers ... how limited government flows from them ... and why human freedom becomes impossible when human nature is denied. In its essence, the challenge before us is as old and as timely as the challenge of the Gospel: And ye shall know the truth and the truth shall set ye free.

…The challenge of religious liberty today is not to convert America to Christianity but to restore the truths about man that allowed faith and freedom to flourish in this land as no other.

So I end with this: If we lose, we will not have a public square that is neutral. The new gods are not of the live and let live sort. The contraceptive mandate started as a constitutional battle over religious liberty. We are learning, however, that it will finish as a fight over the reality of truth.

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William McGurn, editorial page editor of the New York Post, has served as a columnist at The Wall St. Journal, and as chief speechwriter for President George W. Bush.



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