I’ve been watching the reaction to Indiana’s new law protecting religious liberty with a growing sense of dismay. The handwringing on the left is unsurprising, but still saddening. Discussions of the law have led me to one contentious, but undeniable conclusion. Allow me to paint with a broad brush: leftists don’t actually believe in religious freedom. They just don’t. Do they believe in freedom for religious individuals? Certainly. But not in specifically religious freedom. Allow me to explain.
In the liberal mind, “freedom of religion” does not privilege religious exercise in any way. Religious activities are treated exactly like secular ones, and subjected to all the same rules. But this simply is not compatible with the free exercise clause of the First Amendment. Nor is this how the Supreme Court has ever understood the Constitution. To see why, we only need to compare free exercise to another treasured American liberty: that of speech.
The Bill of Rights requires that “Congress shall make no law…abridging the freedom of speech.” Thanks to the 14th Amendment, this restriction applies to state and local governments as well. Allow me to pause for an obligatory “of course” qualification: of course, the law is not as simple as it might appear. Slander is a civil offense. The use of “fighting words” or other speech that causes immediate danger can be prosecuted.
Nevertheless, there is a very, very wide swath for free speech. In fact, I dare say the 1st Amendment privileges speech over non-speech. If the government wishes to implement a policy, and that policy is accused of hindering free speech, the government needs to meet an extremely high standard of scrutiny, in order to prove the policy is constitutional.
Turning now, to another clause of the 1st Amendment, it also specifies that “Congress shall make no law…prohibiting the free exercise [of religion].” The 14th Amendment imposes this restriction upon state and local authorities as well: they cannot prohibit free exercise. Of course, once again, it is possible to name exceptions. If a religious practice is not compatible with the attainment of a “compelling” government interest, then it can be suppressed. That’s why cannibals don’t have a constitutional right to eat the rest of us.
Nevertheless, it is perfectly clear that the free exercise clause privileges religious exercise. If a government policy interferes with such exercise, it needs to be specially justified. The policy must satisfy a higher-than-normal level of scrutiny. In fact, according to Supreme Court precedent, it needs to meet “strict scrutiny.” History is littered with examples. To give a few famous cases:
• In 1979, the Supreme Court exempted the Amish from a Wisconsin law requiring all students to remain in school until age 16. This was found to be unduly burdensome for Amish families, who, for religious reasons, did not want their children to receive formal schooling beyond the 8th grade.
• In 1992, the Supreme Court struck down a number of city ordinances in Hialeah, Florida, which had banned the possession of animals for religious sacrifice. The ordinances were found to violate the free-exercise of a Santeria church.
• In 2005, the Court ruled 8-0 in favor of a religious group’s right to use hoasca (a drug banned by the Controlled Substances Act) in its rituals.
Lots of similar cases, both at the federal and state level, could be named.
Otherwise perfectly constitutional laws can be struck down, just because they interfere with a religious custom. Free exercise– not just “worship” and definitely not just “belief”– is highly protected by the Bill of Rights, even if it is offensive, and even if it offends liberals (Obama forbid).
This is not how run-of-the-mill liberals see things. Those pitiable creatures, currently reading Slate or the Huffington Post, have a very different view. In their mind, religious freedom just means the ability to act in a secular or religious way within the same spheres (provided those spheres are private, of course). So, if I own property and want to open a charity, it can be religious or secular. If I own a printing press, I can print a Catholic newspaper or an atheist one. When I speak, I may say pious things or secular things.
And all this is true. But it doesn’t exhaust the meaning of “free exercise.”
Returning to our previous analogy– believing in free speech requires privileging speech. It has to. The term “freedom of speech” means nothing, unless it means special legal protections belong to speech, that don’t generally belong to non-speech. Applying the same logic, if you believe in religious freedom, then you should be able to name some legal privileges that accrue to an act just because it is religious. If you can’t do that, then you don’t really believe there are religious freedoms. At best, you only believe religious individuals should not be deprived of their other freedoms (speech, assembly, press, property, etc.).
I realize I have not accurately described all liberals. But if I have correctly described you, it’s time to admit it, to both yourself and others. Stop acting as if you are trying to “balance” religious liberty with other concerns, such as non-discrimination. There is no such balancing going on at all. If religious concerns do not carry their own unique weight, and can never justify infringing on a secular rights-claim (especially one based on a sexual preference, for some reason), there is nothing to balance.
Of course, the trouble with leftist thinking is that it seldom carries things through to the end. If religious and secular activities should be legally equal (as I’ve seen many assert), then a whole host of changes need to happen to make that reality. For one, churches must be forced to perform gay weddings. Since businesses are already required to lend their aid to the service or reception, excluding churches from such requirements is arbitrary. Also, churches with all-male clergy ought to be compelled to ordain women, since they are now committing “employment discrimination” in not doing so.
Naturally, some major churches will go underground and operate as illegal groups. You might object and say things should never go this far. But why not? Name one principled, non-arbitrary reason why not.
The end result of the logic of equality is one standard (dictated by abstract ideas, such as equality, diversity, tolerance, etc.) imposed over every square inch of land in the same way, as much as possible. It doesn’t matter if the land in question has a business on top of it, or a parish, or anything else. Contemporary pop morality looks like nothing but tolerance. But since it has no principled way to limit itself, it is totalitarian at heart. Leftists may reject the inevitable end result of their logic, but they never reject the next logical step.
At this point, some may concede that religion should have special rights but still wonder why it is, or should be, so privileged. That question will take us through a lengthy historical interlude. I’ll save it for another post.