What Explains the Left’s Hostility to Religious Liberty? It’s All About the Sexual Revolution

R. Albert Mohler, Jr.
December 2, 2020

Why is the Left so hostile to religious liberty? One event or decision can reveal much about our cultural moment—like a flashpoint, occurrences cast a bright light on what was previously unseen.

That kind of moment happened last Wednesday when the Supreme Court of the United States defended religious liberty—an event which I discussed earlier this week. By now, it is clear that the response to the Court’s ruling reveals the pervasive challenges facing religious liberty in America.

The USA Today published a jointly written opinion piece with the headline, “Religion wins at the Supreme Court: public health loses, and privacy is at risk.” The headline says a lot—even though religious liberty won last week, it was, according to authors Laurence H. Tribe and Michael C. Dorf, a net moral and cultural loss for the nation.

Laurence Tribe is no stranger to anyone interested in constitutional issues for the last generation. He is professor emeritus at Harvard Law School and, if younger, would almost assuredly have been a Supreme Court nominee by a Democratic president. Michael Dorf is the Robert S. Stevens Professor of Law at Cornell Law School—he also has an impressive resume on constitutional issues, having written over 100 scholarly articles, law review essays, and books.

These two legal scholars zeroed in on Justice Neil Gorsuch’s concurring opinion, and they accused Justice Gorsuch of slighting, if not reversing, a previous precedent that was handed down in a 1905 case known as Jacobson v. Massachusetts. That case dealt with the smallpox vaccinations and affirmed that states have the authority to enforce compulsory vaccination laws. Tribe and Dorf criticized particular phrases in Gorsuch’s opinion, writing, “These phrases are a legal dog whistle. Each of those terms—substantive due process, bodily integrity and penumbras—is closely associated with Supreme Court precedents recognizing a right to privacy that encompasses contraception, abortion, child rearing, choice of sexual partners, control over one’s intimate private information and determination of how one faces death. Religion, Gorsuch clearly implied, is a genuine constitutional right enshrined in the text, whereas these other rights are just made up and not entitled to similar respect.”

I hope that Tribe and Dorf are right in this respect. I hope that this is exactly what Justice Gorsuch meant—that there are enumerated rights, like religious freedom, expressly stated in the text of the Constitution. You can read them; they are in the English language; they have been there since 1791. The Left now understands that those enumerated rights threaten their artificially constructed rights, such as the “right” to abortion or same-sex marriage.

These newly declared artificial rights are not enumerated in the Constitution. Read the text, and you will find no mention of a Constitutional right to an abortion. You will find no right to same-sex marriage.

Tribe and Dorf then conclude their article, arguing that if Justice Gorsuch’s opinion and logic prevail, the nation will end up looking like a dystopic wasteland: “After introducing his foreign policy team last week, President-elect Joe Biden proclaimed that America is back. In important respects that will be true come January 20. But at the Supreme Court, America is increasingly unrecognizable. A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place like Gilead—the theocratic and misogynist country in Margaret Atwood’s dystopian ‘The Handmaid’s Tale.’”

Maybe we had better move out of the country, and fast, while there is still time. We are told that Gilead is coming. The Left cannot conceal its dystopianism about America.

We need to look closely at the crucial (and clearly unsustainable) argument deployed by Tribe and Dorf – the argument that the Supreme Court must view rights nowhere enumerated in the Constitution as equal with those rights expressly guaranteed by the Constitution.

Yet, as is so often the case, when enumerated rights collide with newly invented rights, they are never equal—in the view of the Left, the former must give way to the latter. We have seen this with abortion and LGBTQ issues. We have seen those on the left condemn claims of religious freedom as nothing more than attempts to hide bigotry and racism. They are caricaturing the nation’s first freedom as a veil for discrimination—a veil that needs to be destroyed.

What we see is, as Thomas Sowell put it, a “conflict of visions.” For those on the left, they see the situation prior to Roe v. Wade as a dystopia and that America is on the verge of reentering that horrid landscape. They believe that the ascendency of religious liberty imperils the progressive progress made in the last fifty years. They are afraid. They see the future, and that future is scary to them.

A future where the enumerated rights trump invented rights represents an obstacle to their own revolution and moral society. Religious liberty continues to engender opportunities for communities of believing people—people of religious faith—to flourish. That kind of freedom inhibits the secular agenda as its chief and greatest obstacle. Why? Because many religious people refuse to accept the moral revolution, whether they be conservative evangelicals, orthodox Jews, or Muslims. Those religious groups simply cannot capitulate, much less celebrate, the ethical policies promulgated by the moral revolutionaries.

And now, the Supreme Court is viewed as a prime enemy of that revolution because it is supporting the Constitutional right to the free exercise of religion.

But the commentary in the wake of last week’s decision shows just how complex this issue really is. Indeed, an article appeared in The New York Times by Bret Stephens with the headline, “Thank You, Justice Gorsuch: Liberals will one day cite and celebrate this defense of religious liberty.” He argues that while liberals currently find themselves in dismay, they will, soon enough, laud this precedent.

Stephens argues, “There is a perennial danger that rights denied or abridged during one emergency for one class of people will ultimately be denied during another emergency for another class. The reverse is also true. The victory for conservatives in last week’s ruling will be a victory for liberals somewhere down the road. The precedent set by the ruling, and the power of Gorsuch’s concurrence, will make the victory sweeter.”

The basic political idea discussed in this quote and throughout Stephen’s article is this: When government seizes upon an opportunity—even a legitimate opportunity—for action, it almost never surrenders its newfound authority. Former mayor of Chicago and senior official in the Obama administration Rahm Emanuel said, “Never let a good crisis go to waste.” That philosophy was deployed by the Obama administration when it faced the economic crisis of 2008. During that time, the Obama presidency seized the opportunity to expand government control, to achieve other political goals that may not have been possible without the presence of a crisis.

That is one of the largest dangers present in the COVID-19 pandemic. The danger will intensify as we enter the new year and as a new presidential administration assumes the reins of power—and make no mistake, the Biden administration will not let a good crisis go to waste. They will extend governmental authority at the blatant expense of certain liberties, especially religious liberty. This they will do because they know that once they extend their authority, it will be very difficult to reverse.

That was exactly the point made by the Supreme Court in last week’s decision. Justice Gorsuch explicitly stated, “The Bill of Rights is not suspended in the midst of a pandemic.” Thus, when temporary government action is needed, it must be temporary and must not overreach the boundaries set in place by the Constitution. The Supreme Court made very clear that states like New York had gone too far and for too long.

Bret Stephens says that liberals ought not to lambast the ruling. After all, the ruling preserved liberty, which is what liberals say is their animating purpose.

Or is it?

This takes us to an article by Kevin Baine, a First Amendment attorney, who wrote a piece for The Washington Post with the headline, “Is Religious Freedom a Liberal or Conservative Value?” He argued, “To be sure, the justices who favored the injunction are generally seen as conservatives and those who opposed it are generally thought of as liberals. But what does it mean to be a liberal or a conservative when it comes to enforcing the First Amendment’s guarantee of religious freedom? Don’t liberals generally have a more expansive view of the rights enshrined in the Bill of Rights? And aren’t conservatives more likely to defer to the decisions of elected officials that might be seen as curtailing those rights? That was how liberals and conservatives lined up on issues of religious freedom in the last century.”

Baine contends that liberals ought to be those defending religious liberty—increasingly, however, they do not value our nation’s first freedom and they make their aversion loudly known (as was the case in the article by Tribe and Dorf).

But how did we get here? How have so many liberals reduced religious liberty to the level of an inauthentic right? How could liberals view religious freedom as a right to be forfeited or compromised? According to many on the left, photographers must be forced to take photographs for a same-sex wedding. Pharmacists will be forced to participate in euthanasia or abortion. All of this is, quite fundamentally, coercion.

But the idea of coercion stands contrary to the stated ideas of liberalism. Indeed, liberals used to be the staunchest advocates of religious freedom.

The erosion of liberal support for the liberties and freedoms enshrined in the Constitution comes down to this: the moral revolution. This revolution encompasses a constellation of issues—everything from abortion to LGBTQ issues, to euthanasia, to personal autonomy—all of which requires the imposition of state power. If the entire moral fabric of a society is to be undone, the state will have to get involved. If you are going to drive a revolution in the culture, you need the state to coerce.

Christians understand that human beings will intentionally gravitate to things perceived as greater. Humanity does not willingly choose to go from greater to lesser. We naturally choose what we see as greater. Indeed, Augustine described the power of the gospel in a fallen world as the power of a greater affection. By the miracle of the gospel, men and women are drawn to a greater, incomparable affection—an eternal affection for Christ. This affection drives out other affections for they are lesser. Jonathan Edwards made similar points in his work The Religious Affections. The creature’s affection is most fulfilled and rightly ordered when that affection is centered on the Creator. That is why the Bible describes those in Christ as new creations—prior loves and passions fade away as believers come to know the glory of God and Christ.

This impulse, however, pervades all of life, and is on display right now in our contemporary moment. Last week’s Supreme Court decision is a flashpoint moment, revealing how liberals in America have altered their stances on something as basic and fundamental as religious liberty. The left has developed greater affections for the moral revolution—especially the LGBTQ movement—which eclipses their commitment to religious freedom. The affection for that liberty must give way to the new and greater affections for the moral revolution.

Why else, for example, would professors Tribe and Dorf not celebrate last week’s decision? How on earth could they call for unenumerated and invented rights to stand on equal (if not greater) grounds with enumerated and traditionally understood pre-political liberties? It is because the left in the United States has an ardent affection for a new set of rights.

They are the rights celebrated on the Hallmark channel or trumpeted on college campuses. Freedom of speech and religious liberty must give way to these newly invented rights that are now beholden by the cultural left. The left now worships at the altar of a “greater” set of rights that are fundamentally antithetical to the American Constitutional order.

The aversion to the Supreme Court’s decision comes down to this: The Court sent a very clear signal that it is not, at this moment, on board with the moral revolution—it is not willing to surrender the Bill of Rights and the enumerated freedoms established in the Constitution for the newly invented liberties of the revolutionaries.

Tribe and Dort made their consternation clear—and the consequences could not be more revealing. This is indeed a flashpoint moment. Their article shows us just where this revolution is headed.

Words are important. Read them.

R. Albert Mohler, Jr.

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