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April 17th, 2014
Why Religious Liberty is the Wrong Fight to Pick
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.
14 Responses to “Why Religious Liberty is the Wrong Fight to Pick”
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Great post, Connor. I appreciate the thorough research of relevant examples. It saddens me that many well-meaning people have been framing these debates in the context of religion. To me, it can all be boiled down to property rights. When viewed with property rights in mind, it becomes clear that the freedom to practice religion only means something when non-religious people have the same freedoms.
“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.”
This was one thing that I was concerned with from Elder Oaks discussion on religious liberty yesterday at UVU. He said the following:
“Another encouraging development in the world of ideas is the increased academic interest in finding ways to avoid an all-or-nothing approach to resolving the conflicts between civil rights nondiscrimination claims and the free exercise rights pursued by religious groups. For example, an influential article by now Dean Martha Minow of the Harvard Law School concludes that “accommodation and negotiation can identify practical solutions where abstract principles sometimes cannot.”[22] She observes that this approach “is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.”[23] Similarly, an amicus brief filed in the Supreme Court by the American Jewish Committee, while supporting same-sex marriage, urged that the Court reinstate free-exercise exemptions from generally applicable laws.[24] Hopefully such ideas will find the necessary judicial and legislative support to permit them to be applied and bear fruit.”
http://www.mormonnewsroom.org/article/transcript-elder-dallin-oaks-constitutional-symposium-religious-freedom
While having such free exercise exemptions are better than not having them, I believe it is focussing on the wrong issue, or rather, ignoring the illness/disease and and fixing a single symptom instead. To focus on promoting only free-exercise exemptions while not promoting the illegality of anti-discrimination laws in general and focusing on all the rights they violate (religious rights, property rights, association rights, contractual rights, etc.) seems to me to be a form of protectionism, protection of one right or the rights of a specific group, but the other rights of man and the equal rights of all men.
I grew up in SLC and knew a bunch of polygamists’ wives and refugees from polygamy. I spoke with them in depth and knew their stories. It is not always consensual. In fact it isn’t in almost all cases. Girls in their teens getting promised to grandpas by their family is not consensual … it is coercion. If you have a culture that presses young people into a lifestyle through guilt or sheer authoritarian force, then it is not consent. So, the polygamy example seems to be a poor choice.
Further, as a general comment to your site, I like libertarian principles to a point. Property rights should be respected but sometimes libertarians are extremely slow in recognizing where their “property rights” affect others, especially where financial gain is concerned. Also, libertarians like the Kochs hypocritically use the banner of libertarianism as a sword against the population while lobbying congress for benefits.
@ Atheist
Sounds like you have been drinking the Harry Reid Kool-Aid. Specific examples of the Koch Bros rent seeking or outright taking of public money is the standard, mere assertion doesn’t cut it.
Libertarians/Classical Liberals recognize property rights have limits, but those limits are not what the Looters of both parties think they are. Nor are they subject to “regulation”; infringement of property rights are dealt with in civil court only.
Also I doubt Connor was positing the Warren Jeff’s version, rather the Kody Brown Sister Wives consensual polygamy.
There are prerequisites to recognizing and defending against violations of authority.
First, we must thoroughly understand what our real rights are and what is their source. Our problem is increasingly becoming a complete misunderstanding of rights. Many, if not most, people think that their wants are their rights, and that what our Founders proclaimed as actual, God-given rights are nothing more than outdated, wishful and destructive thinking. Rights come with inherent responsibilities: the responsibility is to the one granting the rights. Government has set itself in God’s place, completely abusing its authority.
Second, we must understand the proper functions and limits of government. Thomas Jefferson listed several objectives for the public “primary education” (ages 10-12) he proposed to strengthen the Union; among them were:
“To know his rights;
to exercise with order and justice those he retains;
to choose with discretion the fiduciary of those he delegates;
and to notice their conduct with diligence, with candor and judgement”
The solution, then, must involve education on every level, including teaching our children what their true rights are, where those rights originate, the proper functions and limits of authority.
Connor,
I completely disagree, excluding services to a person is inherently harmful. Especially if the majority has directed consumptive patterns, and especially when its used to reinforce something that another has no desire to partake in. Its a counter example that isn’t listed in the above. I am a vegan, and recently moved into a small western town that is not vegan friendly. The only exceptions are salad and unhealthy options which are meat and dairy free.
Is it legal, I would think so, as I have no right to demand that they change their menu or the way that they do things…but come on, every single resturant? There isn’t any attempt to work or modify anything. It might be ‘liberty’ and ‘freedom’ but only to the business owners…not me. So, I have to buy and prepare my own food at home. I am excluded from a lot of normal activities because of it, and often face a lot of very strange looks and questions which are legal…like out of igrnorance, bias etc… So, what I am disagreeing with you is that it IS harmful.
I would make the case that not providing service to particular customers has the intent to harm…not to protect anyone’s freedom. Isn’t it meant to hurt someone else, or to change someone else? because its something you disagree with?
Tulsi,
Are you really making the argument that restaurant owners who provide a service that caters to a vast majority of the population in your town have the intent to harm people??
You are incorrect in saying that it is liberty and freedom only to the business owners. You have the choice to not visit that restaurant, and you have the choice to eat foods which they provide. You are choosing not to do that and are exercising your own freedom. How are you being “harmed” because a steakhouse is selling steaks? YOU are the one disagreeing with restaurant–it’s not the other way around.
A cursory browse of the vegan population clocks in at .5% in the US, with 2% being the highest estimate (according to Gallup in 2012). This to me demonstrates that your diet is an extreme diet that restaurants in the area do not find profitable to cater to. It doesn’t mean that they are out to harm you.
Pierce,
This was experience from a Mexcian style resturant which would have easily done a meat free, and grease free food. My hope was that I would have had a simple modification and a little consideration, as in other parts of the country this was simple, easy. I also did not expect the response that I got. And you are wrong, they expressed some philosophical and other disagreement about making any changes.
Sure, I would have a hard time proving any real harm, and I did go elsewhere. I found a place which was willing to include me and my ‘extreme diet’, in a nearby town. I found out that place is extremely popular because it makes such arrangements for customers. People fly in from all over. Its associated with a world famous hotel also. He does a great business. I plan on visiting again.
The number of people practicing this ‘extreme diet’ should have little bearing on the issue. Simple ingredients are already there, beans, lettuce, tomatoes, vegetables, rice, corn shells. I think they just didn’t want to do it, for whatever reason. Traveling here, I stopped at a similiar resturant in another very small town. They however DID agree to try to make something for me and a friend. It was simple to modify. The difference was that they were willing to help me.
Tulsi,
I feel your ‘pain’. I am on a very restricted diet (not vegan) for my health. It’s really a matter of life or death for me.
I can’t expect other people, however, to take care of me. I realize that. I have to drive either 35 miles or 170 miles to find a place I can safely eat.
This means that I have to prepare all of my food, and, since my health isn’t very good, this is taxing. But it’s what I do to stay alive. I can’t blame people who don’t provide this for me; it would be pointless. It would do nothing for me. I just have to face the fact that I have to work a little harder to stay alive/healthy. Even with my special diet, my health is not so very good. But the special diet does make a difference.
It’s this way with everything and everyone. We can’t ‘force’ others to understand and care. When they do, however, they become more valued. If they don’t, then THEY missed out on an opportunity to serve a fellow being, whether they are a fellow ‘traveller’ or whether they own a business.
Sorry about the hijack; I wanted Tulsi to know that he/she is not alone with dietary issues in a society that doesn’t care very much about healthy food. I feel that GMO food is terrible, but I also realize that companies need to be free to label their foods, or not. Regulations, I don’t believe, will help.
But, Connor, I have taken some time to read and think about what you have written. I am afraid it goes against the LDS grain not to legislate morality, but I feel that legislating morality can be a threat to agency.
I don’t believe that abortion is a ‘moral’ issue at all. Being against abortion is the same a being against murder. But I know that nobody has a solution for that right now. As for many of the things that Elder Oaks purports, I agree with you. The concern with religious liberties is not taking liberty in a good direction.
Horrific as polygamy is, and I believe it is, people need to have the ‘right’ to make choices about it. I believe it is loathesome, and I know that many LDS don’t feel that way. I also know that there is still an unspoken rule about speaking out against the ‘theory’, because it appears to be ‘critical’ of the early church leaders.
But President Hinckley didn’t hesitate to say that is isn’t doctrine, so I feel that I have someone with clout I can collude with. 🙂
I think it is heartbreaking that teenage girls are having to marry older men; it’s an abomination.
BUT, the only solution to this is teaching the gospel of Jesus Christ, teaching right out of Jacob. Unfortunately, those people believe they are an exception to the ‘rule’.
So I don’t know what the answer is. I suppose it’s something Jesus will have to straighten out.
For people who are not religious who want polygamy (hard to understand, but there are those who do)–
there really isn’t an answer either. Much as children need protection, there are many cultures that do protect children.
that should have been “there are many cultures that do NOT protect children.”
Sadly.
Well, Connor, I feel like we’re going off the rails a bit here in the comments but I at least agree with your main point. One of the problems I had with the recent legislation in Arizona was that it named a minority group by name, and gave one specific group (people with religious objections) exclusive rights as businessowners to discriminate against that group. What I had trouble explaining to my many conservative and libertarian friends was that while I was receptive to the idea that businessowners have the right to discriminate against any group of people for any reason, naming one particular group for discrimination and providing only one group exclusive rights to discrimination against this group was extremely problematic, especially given a national history of legislation and policy explicitly designed to facilitate minority discrimination either overtly or covertly while masquerading as law providing liberty.
Hence your comment: “Focusing on faith in the context of the law necessarily excludes those who object to a given law on non-religious grounds.” I echo this—if something is appropriate, it is appropriate regardless of one’s reason for wanting to do it, and the same for something inappropriate. And even if the timing of legislation which affirmed businessowner discrimination rights still made it abundantly clear which population it was targeting, if it wasn’t in the business of targeting a minority group by name and providing these rights only to one group, those of us who aren’t straight-up conservatives more worried about supposed minority “agendas” than legislation which echoes a troubled national history of State-sponsored or mandated discrimination might all regard it a little easier.
Just found this blog. Good one!
With respect to this post, it may have been said already but the Constitution forbids the FEDERAL government from prohibiting the free EXERCISE of religion. This was no real problem insomuch as each state was free to regulate religion as they wished. Thus, the tendency to just government was to be attained by the free competition of states. Those with the the most just laws would draw the more justice-loving folks over time.
In modern times, with modern travel and modern modes of making a living, this is more doable than ever in terms of the mere logistics. But history and psychology provide me no reason to believe any government will tolerate any such degree of freedom for very long. Hillary even said that we must change our religious BELIEFS!