Whenever a public controversy flares up, certain buzz words and catchphrases form like lint and attach themselves to the debate. After too many twirls through the drier (to stick with the metaphor), some of the meaning rubs off. That’s why it’s a good idea when beginning a discussion to clarify just what we mean by the words we use.
Religious Liberty became a hot topic after the 2014 Obergefell decision, when the Supreme Court
a) struck down the right of states and their constituencies to define marriage (from the right), i.e. and
b) barred states from discriminating against same-sex couples (from the left).
Almost immediately, we started getting news about private business owners refusing to provide services for gay weddings, and the consequences thereby. A number of state legislatures began debating religious liberty/conscience laws to protect individuals in this situation. Opponents began putting “religious liberty” in scare quotes, implying that these concerns were trivial or hypocritical. I disagree that these concerns are either, and here’s my definition:
Religious Liberty refers to the freedom of an individual to practice his or her religion, not only within the confines of a church but also outside in day-to-day life, so long as it causes no obvious harm or places no undue burden on a fellow citizen. Religious liberty is guaranteed by the “free exercise” clause of Amendment 1 of the U.S. Constitution, wherein “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …”
So, what’s your definition? And of course, you may feel free to critique mine, so long as you give yours first!
Busted! “…putting ‘religious liberty’ in scare quotes…” is exactly what I did in our recent conversation when we were talking about how Ted Cruz approaches this issue. Mr. Cruz’s way of applying the Constitution to religious freedom does scare me. The way religious freedom legislation has mushroomed since Obergefell disturbs me deeply. This approach is a much smaller understanding of religious freedom in my mind. That’s why it’s in quotation marks. (Let’s talk more about that later.)
But otherwise – no – I do not mean to imply that “these concerns are trivial or hypocritical” as a rule. I believe wholeheartedly in religious liberty and I agree completely with your definition. No problem with our foundation here.
It’s the application of these constitutional guarantees that causes our dilemma.
As clear as the words of the First Amendment sound on the surface, the interpretation of what those words mean in any particular context and how those principles play out in our common life together is quite complex. Highly educated and well-intentioned lawmakers and judges have always had a variety of opinions about how to craft laws that appropriately apply these standards to our diverse American community.
I agree with your definition that the freedom to practice religion extends beyond the church doors. In the United States of America, all religious people enjoy the right to argue for our beliefs in the public conversation, to advocate for our positions, to write our letters and lobby our representatives, to vote…
(Interestingly the phrase “separation of church and state” is used by some of my liberal, secular friends to try to restrict the freedom of religious people to participate fully in the political process. That is a misunderstanding from the left that is just as troubling to me as the hints of theocracy I hear from the right.)
The problem comes when institutions of government attempt to enshrine particular religious understandings into civil law. Our nation has done this over and over again in our history and it always turns out badly. We religious people are right to expect equal protection under the law. But we do not have the right to expect legal privilege. The laws and policies of our government institutions must be fair and just for everyone.
Application is always the rub. The devil is in the details, and that’s precisely what worries both of us. I have two questions:
- You say that through history our nation has enshrined particular religious understandings into civil law, and it always turns out badly. What particular religious understandings do you have in mind? I don’t need a whole list, just two or three examples to illustrate what you mean.
- Does the right of religious people to advocate for our position extend to people in public office, exercising the duties of their office? Three examples: a) Ted Cruz, Mike Lee and others like them, who are granted legislative power by their constituents; b) Kim Davis, who refused to issue marriage licenses in Kentucky; c) Atlanta fire chief Kelvin Cochran, who lost his job because of a self-published book intended for a Christian audience, one small part of which argued against the legitimacy of same-sex marriage. I realize each of these cases is different and may require some fine needle-threading, but what’s your view of the general principle?
Yes, I believe that throughout our history our nation has enshrined particular religious understandings into civil law. I will argue that the institution of slavery, the limitation of rights and opportunities for women and the exclusion of gay people from the marriage contract are three really big examples.
I’m aware it’s a bit of a tricky argument because one can also argue that those circumstances grew from the soil of long held cultural assumptions, not religious practice. But since I believe all our various religions are cultural constructs, I cannot help but see religious underpinnings.
The anecdotal evidence I offer is the countless sermons that have been preached arguing that slavery was God’s will, that women should stay in the place God assigned them and that marriage is between a man and a woman because … you know … Adam and Eve. I offer the evidence that masters used the Bible to intimidate their slaves, that husbands have used the Bible to suppress their wives, that parents have used the Bible to ostracize their gay children. I offer the evidence that it has been church folks who have been some of the most proactive and reactive to lobby for these widely held religious understandings to be incorporated into local, state and federal laws. I could also mention prohibition, abortion and the Sunday Blue Laws that you and I were so familiar with growing up in Dallas.
“Law is always contingent,” my attorney husband reminds me. Rules and regulations come from a people’s time and place that are inevitably bound up with our particular understandings within our culture in any given era. (That’s why arguments from natural law stand on shaky ground.) The brilliance of the First Amendment is that it was written (intentionally, I believe) with both stability and elasticity. As our nation grows and matures, we can stand firmly in our proclaimed individual rights while, at the same time, evolve in ways that increasingly make room for the rights of others.
I need to take a break. You stretch me, Janie! I’ll let you respond to question #1 and we can tackle question #2 in our next discussion.
Fair enough; thanks for those examples. Of course you are correct that religion (let’s just say the Bible) has been used to support American slave law and legislation limiting the rights of women. But does that mean the Bible was the impetus for those laws? I don’t believe so. American slave law was driven by economics and false science (the “scientific fact” that blacks were inferior), not primarily religion. The Bible was used to beat slaves into submission, but it also lifted them up, created a community (the black church) and provided the main principle for abolitionism. Women have likewise been subjected throughout all times and places, partly because of biology and because of the sinful tendency of the physically strong to oppress the weak. The Bible affirms that men and women are equal in worth, and does not bar women from the marketplace or the public square. I’ll admit that some passages in the Bible are problematic for women (some women, anyway!), but if scripture has been used as the central prop for legally limiting their rights, it’s been misused.
Same-sex marriage legislation is a bit more complicated. Since most of the religious liberty cases that have popped up recently concern SSM and other issues of sexuality, we’ll definitely be taking it up later.
All this is to say that the record of religion in law is murky: Christianity has been a motivation for law, for the worse and more often for the better, but seldom the entire motivation. It’s interesting, though: the basic principle of non-discrimination is religious in origin, specifically Judeo-Christian. It’s an outworking of the doctrine that humanity is created in the image of God their Creator, and all men and women are of equal worth to him. I doubt that the principle would even exist without that basic truth. Can American law be de-coupled entirely from Christianity, or perfectly neutral toward it? I’m not sure it’s possible, or even desirable.
Yes, you and I agree that the Bible and religion have been misused in these and many more social circumstances throughout history. Has religion been origin or justification for abuses of humans one against the other? Probably both-and.
I’ll work on my response to your question #2 and get back to you soon. Thanks for the stimulating conversation, my friend.
Janie B. Cheaney blogs at Gobsmacked by Life … sometimes
Janie has published six novels for teens. Her historical fiction is especially well done with solid research, engaging characters and great writing. Janie’s J.B.Cheaney Facebook page is a fun and helpful author resource.
Charlotte Vaughan Coyle lives in Paris TX and blogs about intersections of faith, culture and politics on her website and Intersections Facebook page. She is national secretary for Coffee Party USA and contributes regularly to the Join the Coffee Party Movement Facebook page.