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There’s been heavy debate regarding religious liberty in the past several years, specifically in relation to the mandate under Obamacare for employers to provide contraception and the surging movement to legalize same-sex marriage. The conversation extends to other issues such as the right to refuse service in commerce, discrimination in employment and housing, and adoption—among many others.
Without question, there are an abundance of examples one might reference suggesting a violation of religious liberty. In other words, many laws require a person to act contrary to the tenets of his faith, presenting him with what Bastiat called “the cruel alternative” of deciding between obedience to God or Caesar. This trend led Pope Benedict XVI to comment in 2012 that this, the “most cherished of American freedoms,” was being undermined by government policies.
But what, exactly, is religious liberty? Most would define it as the ability to believe in God—or, more generally, the supernatural—and act on those beliefs. Of course, religion is often comprehensive and all-encompassing; theology isn’t just focused upward upon God, but more importantly downward on each individual—our lives, our interpersonal relationships, our behaviors, our thoughts, our feelings. As Stephen L. Richards once stated:
Our religion is not a thing apart from our life. It is incorporated in it, and forms a part of the very tissue and sinews of our being. It provides a rule of conduct and of action for us, not only in our occasional worship but in our lives, in our work, in our play, in all that we do in the whole course of our conduct.
Few object to this conduct and action when it is personal, confined, and inconspicuous. How and where a person prays, for example, is not a subject of public controversy. A person who fasts, renders service, or baptizes another person is rarely the topic du jour amongst talking heads on TV. But when these actions affect other individuals, especially in a visible and direct manner, many consider the activity to be appropriately subject to public scrutiny and government regulation.
Consider the case of George Reynolds, a member of The Church of Jesus Christ of Latter-day Saints. While married to one woman he additionally married another in the polygamous Utah territory. Reynolds was convicted in 1875 and sentenced to two years of hard labor in prison along with a fine of $500. He was defeated in each level of court appeals, including the U.S. Supreme Court, the justices of which unanimously upheld his conviction.
“Can a man excuse his practices to the contrary [of the law] because of his religious belief?” questioned the Court. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
Thus did the black-robed lawyers in the Supreme Court draw a dividing line between religious belief and religious behavior. While the former was protected by the 1st amendment to the U.S. Constitution, the latter was subjected to legislative mandates, bureaucratic restrictions, and judicial interpretations. Religious opinion was still a jealously guarded freedom, but religious activity thereafter became a circumstantial, government-granted permission.
Those who speak of religious liberty today hope to converge the two, allowing people of faith to outwardly act in a manner that is consistent with their inward thoughts. “I am deeply concerned,” Rep. Raul Labrador recently said, “that this administration will begin to use the federal government to discriminate against individuals and organizations who believe [in] traditional marriage and believe in it for religious reasons.” Of course, the belief alone in opposite-gender marriage is not the issue—it is the desire by those who hold this belief to use political power to enforce their belief as a statewide (or nationwide) standard, to the detriment of those who have different beliefs. Thus, Rep. Labrador added, “all Americans should be free to act in the public square based on their beliefs about marriage without fear of any government penalty.”
But is this true? Should individuals be free to act based on their religious beliefs? This was a question the Court dealt with in the Reynolds case. In an editorial defending the Court’s decision, the New York Times wrote that “a sect which should pretend, or believe, that incest, infanticide, or murder was a divinely appointed ordinance, to be observed under certain conditions, could set up that the enforcement of the common law, as against either [sic] of these practices, was an invasion of the rights of conscience.” It’s a valid point—there certainly must be boundaries against actions that are excused because they are based on a religious belief.
The glaring difference between polygamy, on which the Times was commenting, and things like incest, infanticide, or murder, is that polygamy is consensual and does not harm those whose beliefs oppose the practice. To the extent that religious action does not violate the life, liberty, or property of another, then it should not be prohibited. Abstaining from offering contraception insurance coverage to one’s employees does not violate their rights. Refusing to offer products or services to a person because of one’s religious belief does not violate that person’s rights.
This is why religious liberty is the wrong fight to pick. The issue here is not that religious people are being compelled to choose between conscience and Caesar—the issue is that the state is requiring these things at all. We should not give the green light to burdensome mandates so long as exemptions exist for those whose religious beliefs require them to act differently. Focusing on faith in the context of the law necessarily excludes those who object to a given law on non-religious grounds.
Myopically focusing on religious liberty narrows our attention and energy to a small subset of liberty—an important one, yes, but a subset nonetheless. Questions of oppressive government shouldn’t be framed only in terms of violations of conscience; our focus should be in pointing out, and objecting to, violations of authority. The government should not oppress anybody, religious or not. Thoreau was right:
Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? — in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right.
It can certainly be useful to object to oppression on religious grounds—but this alone should not be the summum bonum of our advocacy and efforts. We should fight for liberty, generally. Occupational licensure, property rights, tax reform, gun control, education, drug legalization, immigration, environmental regulations, searches and seizures—these and a host of other political issues have no, or at best only a minimal, connection to religious belief. But these issues are equally worthy of our attention, despite our religious beliefs finding little to no application to them.
Religious liberty is important; people should be free to act in a manner consistent with their privately held beliefs, so long as that action does not violate another’s rights. This benchmark alone should be the litmus test for whether the government may be permitted to mandate or prohibit an action. Ultimately, however, it does not matter whether the belief and intent underlying the action stems from religious conviction, personal interest, ignorance, a profit motive, or some other influencing factor. So long as it’s consensual and not harmful, the government should butt out. Religion, in the end, has nothing to do with it.
Daniel Webster once stated, “God grants liberty only to those who love it, and are always ready to guard and defend it.” Focusing only on religious liberty is tantamount to wearing only a breastplate in a battle against the state. Let’s instead wear a complete set of armor, defending liberty generally—not only for the religious among us, but for all individuals whose birthright it is.