Assault on Religious Liberty

`The constitutional freedom of religion [is] the most inalienable and sacred of all human rights.” — Thomas Jefferson: Virginia Board of Visitors Minutes, 1819.

“I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.” — Thomas Jefferson to Samuel Miller, 1808.

The US Constitution is revered so much today that it is often forgotten that its passage was far from certain. For many, the increased government powers granted in the Constitution posed the danger of tyranny. After having spent so much effort escaping the political power of Great Britain, the Founders were reluctant to cede too much authority to the central government. To alleviate this deficiency, the first ten amendments to the Constitution which passed soon after the Constitution itself explicitly enumerated rights. Collectively these first ten amendments are known as the Bill of Rights.

The Founders were well-read and precise in their use of language. They did not write cavalierly. They wrote with thoughtful and deliberate purpose. It can be reasonably assumed that the importance they accorded to specific liberties is reflected in the order of the amendments. In terms of avoiding tyranny, the First Amendment is the most important, and the first two clauses of that amendment read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Founders understood that religion is a countervailing source of authority in human affairs. Robust and free religious communities represent a bulwark to tyranny, even before freedom of speech, of the press, and of association. It is, therefore, disturbing when some are trying to use the gay rights movement to undermine religious liberty.

Consider, for example, Massachusetts. In the Goodridge case, the state Supreme Court in a 4-3 decision, ruled that the State of Massachusetts is compelled to recognize same-sex marriages. Now, we have an interesting situation because Massachusetts state law prohibits discrimination on sexual “orientation.” Catholic Charities of Boston has long been providing adoption services and has a particularly good reputation for finding homes for hard-to-place children. However, in accordance with church teaching, they are not providing adoption services for same-sex couples. Adoption agencies are licensed by the state and now it seems that Catholic Charities will not be allowed to provide such services.

Now one may make a libertarian case for gay marriages or even for allowing gay couples to adopt children. That debate we will leave for later. However, what ever public purpose is served this must be weighed against the circumscription of deeply held religious beliefs.

The First Amendment right of freedom of the press can only be limited in the case of immediate public safety or a clear and present danger. Given the ordering of the First Amendment, it would seem that an even higher standard should be required to prevail over the free exercise of religion.

This is not the opinion of some scholars who argue for gay rights, Chai Feldblum of Georgetown Law School argues that even though religious liberty is an explicitly enumerated liberty, “There can be conflict between religious and sexual liberty, but in almost all case the sexual liberty should win because that is the only way that the dignity of gay people can be affirmed in any realistic manner.” However, it is not clear that this arises organically out of Constitutional law. It appears to be Feldblum’s personal preference.

Consider some other potential threats to religious liberty:

  • Can a private school expel gay or lesbian students who openly violate a religious stricture? Must the religious institutions be compelled to accommodate behavior that conflicts with their religious beliefs?
  • Could a church-supported homeless shelter forbid a gay or lesbian couple the use of quarters reserved for married couples?
  • Could a cleric who offers marriage counseling be compelled to offer such counseling to a same-sex couple?
  • Can a Catholic hospital be required to offer contraception or abortions?

In general, commercial enterprises who offer public accommodations must serve everyone, but should non-profit church-affiliated organization be compelled to accommodate activities they find sinful? Can the tax-exempt status of churches be used as a lever to force such compliance? Those on the Left should not be so quick to follow that route. One can conceive of a university affiliated with a pacifist church being compelled to allow military recruiters on campus. The Federal statute known as the Solomon Amendment, after its author, mandates equal access to military recruiters. It currently contains an explicit exemption for such schools and uses federal funding, and does not use tax exempt status as leverage.

The religious liberty clause of the First Amendment is not the only liberty threatened. Particularly on college campus, the reflexive totalitarianism of the Left is apparent. At William Patterson University a state school in New Jersey, a faculty member sent out to many members on campus an invitation to view movies with a pro-gay theme. A strictly religious Muslim student-employee, Jihad Daniel, replied in a private e-mail that he wished to be removed from the e-mail list, but went on to refer to gay and lesbian activity as a “perversions.” Daniel received a letter of reprimand for using “derogatory and demeaning” language. Under the threat of a law suit by the Foundation for Individual Rights in Education (FIRE), cooler heads prevailed and the reprimand was withdrawn, but not before New Jersey State Attorney General ominously asserted that “speech which violates a non-discrimination policy is not protected.”

An Ohio State University Librarian recommended the book It Takes a Family by Senator Rick Santorum and The Marketing of Evil by David Kupelian as part of a freshman reading list. Several faculty members claimed that the books recommended by the librarian made them feel unsafe and a sexual harassment charge was issued. The charges were ultimately dropped, but the clear message from these events is that expression of anti-gay opinions on campus is dangerous.

So while we argue about the civil liberties issues around tracking phone numbers, long-term systemic threats are ignored.

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