In the first volume of his history of World War II, Winston Churchill looked back at the storm clouds that gathered in the 1930s portending war and the loss of human freedom. Churchill wisely and presciently warned Britain of the tragedy that would ensue if Hitler were not stopped. His actions were courageous and the world was shaped by his convictional leadership. We are not facing the same gathering storm, but we are now facing a battle that will determine the destiny of priceless freedoms and the very foundation of human rights and human dignity.
Speaking thirty years ago, Attorney General Meese warned that “there are ideas which have gained influence in some parts of our society, particularly in some important and sophisticated areas that are opposed to religious freedom and freedom in general. In some areas there are some people that have espoused a hostility to religion that must be recognized for what it is, and expressly countered.”
Those were prophetic words, prescient in their clarity and foresight. The ideas of which Mr. Meese warned have only gained ground in the last thirty years, and now with astounding velocity. A revolution in morality now seeks not only to subvert marriage, but also to redefine it, and thus to undermine an essential foundation of human dignity, flourishing, and freedom.
Religious liberty is under direct threat. During oral arguments in the Obergefell case, the Solicitor General of the United States served notice before the Supreme Court that the liberties of religious institutions will be an open and unavoidable question. Already, religious liberty is threatened by a new moral regime that exalts erotic liberty and personal autonomy and openly argues that religious liberties must give way to the new morality, its redefinition of marriage, and its demand for coercive moral, cultural, and legal sovereignty.
These are days that will require courage, conviction, and clarity of vision. We are in a fight for the most basic liberties God has given humanity, every single one of us, made in his image. Religious liberty is being redefined as mere freedom of worship, but it will not long survive if it is reduced to a private sphere with no public voice. The very freedom to preach the Gospel of Jesus Christ is at stake, and thus so is the liberty of every American. Human rights and human dignity are temporary abstractions if they are severed from their reality as gifts of the Creator. The eclipse of Christian truth will lead inevitably to a tragic loss of human dignity. If we lose religious liberty, all other liberties will be lost, one by one.
Religious Liberty and the Challenge of Same-Sex Marriage
Even though same-sex marriage is new to the American scene, the religious liberty challenges became fully apparent even before it became a reality. Soon after the legalization of same-sex marriage in the state of Massachusetts, several seminars and symposia were held in order to consider the religious liberty dimensions of this legal revolution. The Becket Fund for Religious Liberty sponsored one of the most important of these events, which produced a major volume with essays by prominent legal experts on both sides of this revolution. The consensus of every single participant in the conference was that the normalization of homosexuality and the legalization of same-sex marriage would produce a head-on collision in the courts. As Marc D. Stern, of the American Jewish Congress stated, “Same-sex marriage would work a sea change in American law.” He continued, “That change will reverberate across the legal and religious landscape in ways that are unpredictable today.”
Nevertheless, he predicted some of the battlefronts he saw coming and addressed some of the arguments that could already be recognized. Even then, Stern saw almost all the issues we have recounted, and others yet to come. He saw the campuses of religious colleges and the work of religious institutions as inevitable arenas of legal conflict. He pointed to employment as one of the crucial issues of legal conflict and spoke with pessimism about the ability of religious institutions to maintain liberty in this context, for which he advocates. As Stern argued, “The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The remaining question is whether champions of tolerance are prepared to tolerate proponents of the different ethical vision. I think the answer will be no.”
Stern did not wait long to have his assessment verified by legal scholars on the other side of the debate. One of the most important of these, Chai R. Feldblum, presented rare candor and revealed that an advocate for same-sex marriage and the normalization of homosexuality could also see these issues coming. Feldblum pointed to what she described as, “the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws.” She went on to state her belief that “those who advocate for LGBT equality have downplayed the impact of such laws on some people’s religious beliefs and, equally, I believe those who sought religious exemptions in such civil rights laws have downplayed the impact that such exemptions would have on LGBT people.”
As Feldblum argued, she called for the society to “acknowledge that civil rights laws can burden an individual’s belief liberty interest when the conduct demanded by these laws burdens an individual’s core beliefs, whether such beliefs are religiously or secularly based.” Thus, in Feldblum’s argument, we confront face-to-face the candid assertion that an individual’s “belief liberty interest” must give way to what are now defined as the civil rights of sexual minorities. Feldblum believed she saw the future clearly and that the future would mean “a majority of jurisdictions in this country will have modified their laws so that LGBT people will have full equality in our society, including access to civil marriage or to civil unions that carry the same legal effect as civil marriage.” In that future, religious liberty would simply give way to the civil liberties of homosexuals and same-sex couples. Feldblum, then a professor at Georgetown University Law Center, also understood that this moral revolution would mean that the government is “taking sides” in a moral conflict, siding with the LGBT community. This necessarily puts government on the side of that moral judgment, which is precisely the point Feldblum is insisting we must recognize. Once government is on that side of the moral judgment, its laws and its coercion will require those who hold to a contrary moral system, whether based in religious or secular convictions to give way to the new moral judgment affirmed by the government.
In her very revealing argument, Feldblum struggles to find a way to grant recognition and a level of liberty to those who disagree with the normalization of homosexuality, especially on religious grounds. Nevertheless, as she shares quite openly, she is unable to sustain that effort, given her prior commitment to the absolute imposition of the new morality by means of the law and the power of the state. Appointed and later confirmed as Commissioner of the U.S. Equal Employment Opportunity Commission, nominated by President Obama, Feldblum stated in a different context that the end result of antidiscrimination legislation would mean the victory of sexual rights over religious liberty. She commented that she could not come up with a single case in which, at least hypothetically, religious liberty would triumph over coercion to the new moral morality.
It is crucially important that we understand the moral judgment being made and enforced by legal mechanisms in the wake of this revolution. Feldblum, a lesbian activist who has advocated for same-sex marriage—and for the legalization of polygamy—fully understands the law teaches and reinforces a morality. She insists that the law must allow no deviation in public life from the dictates of the new morality. In this case, this means allowing virtually no exemptions to regulations prohibiting discrimination on the basis of sexual orientation or gender identity.
In her presentation at the Becket Fund event, Feldblum cited the writings of Judge Michael McConnell, who both offered support for same-sex marriage and the assurance that the religious liberty of Christians and other religious citizens must be protected. McConnell’s argument is straightforward:
"The starting point would be to extend respect to both sides in the conflict of opinion, to treat both the view that homosexuality is a healthy and normal manifestation of human sexuality and the view that homosexuality is unnatural and immoral as conscientious positions, worthy of respect, much as we treat both atheism and faith as worthy of respect. In using the term ‘respect,’ I do not mean agreement. Rather, I mean the civil toleration we extend to fellow citizens and fellow human beings even when we disagree with their views. We should recognize that the ‘Civil Magistrate’ is no more ‘competent a Judge’ of the ‘Truth’ about human sexuality than about religion."
Feldblum dismissed his argument by accusing McConnell of failing to recognize “that the government necessarily takes a stance on the moral question he has articulated every time it fails to affirmatively ensure the gay people can live openly, safely, and honestly in society.”
In other words, there must be no exceptions. Religious liberty simply evaporates as a fundamental right grounded in the U.S. Constitution, and recedes into the background in the wake of what is now a higher social commitment—sexual freedom.
This post is an excerpt from my chapter in First Freedom: The Beginning and End of Religious Liberty, edited by Jason Duesing, Thomas White, and Malcolm Yarnell III.