Suppressing Religious Freedom to Prevent “Discrimination”
By Michael Wagner
Published in the June 20, 2020 issue of Christian Renewal magazine (www.crmag.com/), pages 28-31.
Although there are many political issues regularly in the news, matters related to religious freedom are likely among the most important for conservative Christians. This is because the gradual loss of religious freedom in countries like Canada and the United States has the potential to personally affect every genuine Christian in those countries. Strangely, the reduction in religious freedom is largely occurring under the guise of preventing “discrimination” against sexual minorities.
The “sexual revolution” of the 1960s and 1970s was supposedly about “liberation” from restrictive laws and morals. It led first to the legalization of abortion and homosexuality, followed by the insistence that abortion and homosexual practices are fundamental human rights. According to “progressives,” people who don’t support abortion and same-sex marriage oppose “human rights.” Because their view is now widely embraced, conservative Christians are commonly on the defensive.
Due to the success of progressive activists, religious freedoms are being increasingly overridden by laws forbidding “discrimination” against those seeking abortion or practicing homosexuality. Some medical professionals are required to provide referrals if they won’t personally participate in an abortion. Additionally, Christians who provide products or services for weddings are being punished for refusing to provide their products and services for same-sex weddings. Progressives view that as discrimination against homosexuals and demand that the Christians be punished to the full extent of the law. They want the “bigots” to be taught a lesson.
In 2016 the United States Commission on Civil Rights, an agency of the US federal government, issued a large report on these sorts of conflicts entitled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. The reference in the title to “peaceful coexistence” is unintentionally ironic because the majority of the commissioners favored an extremely harsh response to Christians rather than any reasonable form of “coexistence.” Commission Chairman Martin R. Castro set the tone for the majority’s recommendations by writing: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance” (p. 29).
In his mind, when Christians refuse to participate in same-sex weddings, they are guilty of “discrimination,” “intolerance,” “homophobia,” and are promoting some concept of “Christian supremacy” in the United States. The majority of commissioners essentially share that view.
Thankfully, two commissioners dissented from the Commission’s conclusions, including the lone Republican on the Commission, Peter Kirsanow. Both of the dissenters wrote statements explaining their reasons for dissenting from the majority, and both of those statements are well worth reading.
However, Kirsanow’s statement is particularly valuable because it frames the whole issue in a broader philosophical and historical perspective. The conflict is not between citizens lawfully exercising their sexual liberty rights on the one hand, and nasty Christian bigots on the other, as the progressives would have us believe. Nor is it between two competing legitimate sets of rights that properly need balancing, as some libertarians might see it. Rather, the controversy over religious freedom is, in fact, a clash between two fundamentally opposed worldviews: secular progressivism and conservative Christianity.
Religious Freedom is Constitutionally Protected
Before getting to that central aspect of the issue, however, Kirsanow makes a key point of law. The Commission’s majority argue that nondiscrimination principles are more fundamental than religious liberty and therefore trump religious liberty when the two are in conflict. But as Kirsanow points out, that is the opposite of the actual legal and constitutional situation. As he writes, “The tension between nondiscrimination principles and religious liberty is based on the assumption that the rights in conflict are of equal weight, or even that nondiscrimination is of greater weight. This assumption is erroneous. Religious liberty is an undisputed constitutional right. With the exception of racial nondiscrimination principles embedded in the Thirteenth, Fourteenth, and Fifteenth Amendments, nondiscrimination principles are statutory or judicially-created constructs” (p. 42).
As he goes on to explain, “the free exercise of religion is a constitutionally enumerated right.” It is “only within the past few decades that sexual behavior has been found lurking in the outer fringes of the Fourteenth Amendment.” With this in mind, “it is difficult to believe that the existence of a constitutional right to sexual liberty escaped the notice of founders, framers, and constitutional scholars for over 200 years. The sudden discovery of its existence in the latter half of the 20th century suggests that sexual liberty’s status as a constitutional right is dubious, and is based more in the Court’s (and sometimes the public’s) enthusiasm for the idea than in the Constitution” (p. 63).
In short, religious freedom is constitutionally entrenched whereas sexual nondiscrimination principles have been created by politicians and judges. Furthermore, the sexual liberty supposedly protected by the US Constitution is a recent invention concocted by the courts, not the framers of the Constitution.
However, as mentioned previously, fundamentally the issue is not a contest of nondiscrimination principles versus religious freedom. It goes much deeper than that. As Kirsanow explains, “It is a conflict between two worldviews, both held with the intensity generally associated with religious belief. The first, which is secularism, holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation. This interest in the individual is now construed as a positive responsibility to ensure that everyone has the ability to engage in sexual conduct without cost or consequence, whether in money, unwanted children, or hurt feelings. An individual’s sexual behavior is considered an act of self-creation and something that goes to the deepest level of their identity. Criticism of an individual’s behavior is considered an attack on the dignity of the person. Naturally, this worldview is at odds with many aspects of traditional morality grounded in sexual restraint” (pp. 43-44).
The second worldview, of course, is conservative Christianity, which “holds that individuals are not their own judge, but rather are subject to divine law and divine judgment” (p. 44). This is important in the matter at hand because under this worldview, “it is a sin to assist another person in breaking the moral law, or to applaud breaking the moral law” (pp. 44-45). Whether participating in a same-sex marriage, or helping someone to procure an abortion, helping someone to sin is itself a sin.
Opposition to Same-Sex Marriage
Historically, genuine Christianity has always regarded monogamous heterosexual marriage as the only relationship in which sexual activity could legitimately occur. For Christians, sex between unmarried opposite-sex partners is just as unlawful as sex between same-sex couples. “Furthermore, orthodox Christianity teaches that the state cannot simply wave a magic wand and transform same-sex relationships into marriages. They believe that marriage has certain necessary characteristics, that this nature was established by God but is accessible to reason, and other romantic attachments, no matter how strongly felt, simply are not marriage. This is the ‘conjugal view’ of marriage” (p. 59).
The historic Christian view of marriage has consequences in the lives of believers. When the state establishes same-sex marriage, a conflict is created between conscientious Christians who provide goods and services for weddings, and nondiscrimination laws. Such Christians cannot participate in same-sex weddings. As Kirsanow explains, “in assisting in celebrating a same-sex wedding, they are treating it as a wedding, bearing witness to the world through their actions that this relationship is a marriage. Because they do not believe this relationship is a marriage and that the purported marriage is invalid because of a standard of absolute truth regarding the nature of marriage that is external to all people, their involvement in the celebration is an offense twice over. It is an offense against their own conscience, because they are testifying to something they do not believe to be true. And it is an offense against absolute truth itself, because they believe the same-sex marriage is a falsehood about the nature of marriage, and they are assisting in perpetrating that falsehood” (pp. 61-62).
A Christian who is asked to participate in a same-sex wedding in some way, such as providing flowers, a cake, or taking wedding pictures, would be helping people celebrate an event that transgresses divine law. He or she would be forced to choose between obeying God or obeying the government’s nondiscrimination requirements.
Religious Beliefs a “Smokescreen”
The majority on the U.S. Commission on Civil Rights recommends that such people be punished for discrimination. In the majority’s view, the reasons provided by Christians against participating in same-sex weddings simply involve a “smokescreen that ‘religious beliefs’ provide for anti-LGBT animus” (p. 163). To the commissioners, there is absolutely no legitimate reason for conscientious Christians to avoid participating in same-sex weddings. Those Christians are simply being required to engage in secular, commercial activity, and refusing to do so is motivated by nothing more than “anti-LGBT animus.” It’s as simple as that, in their view. Because their progressive ideology demands such a conclusion, the evidence and rationale provided by the Christians must be ignored or rejected.
Unlike the majority of the commissioners, Kirsanow has a much more sophisticated understanding of the issues at stake. Noting the implications of the majority’s view he writes, “Refusing to provide robust protection of First Amendment rights is a dangerous narrowing of our freedom. People who live in accordance with their unfashionable religious beliefs will be unable to work in many professions. When a baker or a photographer or a CEO is forced to participate in activities that offend their religious beliefs, what hope is there for a doctor, a counselor, a lawyer? Traditional believers will have very few careers where they can both make a living and live according to their faith” (p. 111).
In short, now that the state has established same-sex marriage, the aggressive enforcement of so-called nondiscrimination laws will reduce the freedom of Christians to be full participants in society—Christians will become second-class citizens, at best.
Replacing America’s Foundation
The progressive ideology behind the nondiscrimination laws will do much more than limit the freedom of Christians. It will, in fact, change the very nature of America. As Kirsanow explains, “When America was founded, the Founders located man’s freedom and dignity in God. But not just any god – not Baal, not Odin, not Zeus – the God of Christianity and Judaism. Jefferson wrote, ‘all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness’ and ‘Almighty God hath created the mind free, and manifested his supreme will that free it shall remain.’ Even Jefferson, one of the least religiously orthodox of the Founders, ascribed to the Judeo-Christian belief that man is created in the image of God, and that is the source of our freedom and dignity” (p. 112).
Thus the anti-Christian posture of progressive ideology will subvert the philosophical foundation that underlies the United States and its Constitution. Understood this way, the outward conflict between religious freedom and nondiscrimination principles takes on even greater significance.
Kirsanow explains this point most thoroughly when he points out that “the effort to force traditional religious believers to bow to certain sexual mores is really an attempt to replace the old faith with the new. But if the old faith is destroyed, and with it the idea of human dignity, the adherents of the new faith may rue the day they did so. Secularists may believe that they are simply expanding the idea of human dignity to encompass various important facets of human behavior, but in so doing they are destroying the foundation of the idea and are unlikely to find a similarly compelling basis. Revolutions often turn on their instigators. The Judeo-Christian belief that man is created in the image of God, the imago Dei, undergirds Jefferson’s proclamation that ‘all men are created equal’. Despite the failures of its adherents, as is the case with any set of principles, this concept is the root of the traditional Christian belief that people are ends, not means, and that therefore every person—male, female, black, white, disabled, gay, straight—is inherently dignified, despite his undoubted sins and perhaps seemingly dubious prospect of salvation. Without that foundation, the idea that everyone has equal dignity is little more than a polite fiction to be brushed aside for greater convenience” (p. 113).
The controversy over religious freedom in countries like Canada and the United States will have significant repercussions. As Peter Kirsanow explains so clearly in his statement in Peaceful Coexistence, the attempt to suppress religious liberty in the name of nondiscrimination principles represents a much deeper phenomenon. Progressives are replacing the Christian foundation of the US with their own ideology. The punishment of Christians for not participating in certain manifestations of the progressive project (such as same-sex marriage) is a result of that.
The long-term consequences are very serious for every believer in North America. A centuries-long tradition of religious liberty and toleration may die at the hands of progressive ideologues. They want to abolish our freedom.