Let’s talk about the biggest threats currently pending against our first freedom: religious liberty, which I will define for purposes of this review as including the following concepts:
- Groups and individuals cannot be penalized for exercising their conscience. Such "[p]enalties are impertinent" if used to "compel men to quit the light of their own reason, and oppose the dictates of their own consciences." (John Locke 1689.)
- There should be no religious test for a public office or public trust. (U.S. Const. Art. VI.)
- There should be no officially established state church (or “establishment of religion")(U.S. Const. Am. 1).
- There should be no legal infringement on one's right to the "free exercise" of religious belief and practice. (U.S. Const. Am. 1.)
- "[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (Justice Jackson, W. Va. State Board of Education v. Barnette (1943)[emphasis added].)
- "Government may neither compel affirmation of a repugnant belief [i.e., a belief a particular citizen believes to be repugnant] nor penalize or discriminate against individuals because they hold religious views abhorrent to the authorities." Justice Brennan, Sherbert v. Verner (1963).
- "[G]overnment coercion of moral agency is odious." Gilardi v. U.S. (D.C. Cir. 2013).
Today, each of these principles is under increasing attack, and examples of their violation can readily be found by any one who reads the news and is paying attention. This is a startling development. For more than three centuries, the general thrust of history in the western world, and certainly in America, has involved advancing religious freedom and liberty. The ideal of religious tolerance was a core component in the writings of Locke and other Scottish Enlightenment thinkers. This was progress, and Locke’s writings were a fundamental influence on the American founders.
But Jefferson, Madison, and Washington, each in their own way, sought to expand this ideal even further, beyond mere tolerance (by a majority or state sanctioned religion with respect to a dissenting sect) towards a broader concept, involving governmental neutrality towards different religions, and protection against infringements on any individual’s right to choose and worship in accordance with his own personal beliefs. Madison’s tweaking of Locke’s formula in the Virginia Declaration of Rights was the first step, followed by Jefferson’s Virginia Statute for Religious Freedom, and Madison’s Memorial and Remonstrances Against Religious Assessments. The Declaration of Independence and our Constitution and Bill of Rights affirmed these principles, providing official legal authority for the same on a federal level, and they were beautifully articulated in Washington’s 1790 letter to a Newport Rhode Island Jewish Synagogue. From that foundation, the ideals of religious liberty have been further developed and expanded, by subsequent jurisprudence and case law, by the 14th Amendment, and by a religiously devout citizenry which cared sufficiently about the issue to protect and preserve the cause.
However, this history of advance seems now to have ended, and we now seem to have entered a new and troubling phase of regression, in which the trend and thrust of history is for religious freedoms to be increasingly constricted, and defined more narrowly, rather than enlarged and defined more broadly. This is true both legally, but also in our culture, where religious liberty has recently come to be treated with disdain, as a retrograde notion that stands in the way of advancing newer and more trendy current political fixations, surrounding rights to freedom of sexual expression. What happened? Secularism is obviously a big part of the story. Citizens who do not exercise a particular right are far less likely to care about its infringement. But there are other trends which directly relate both to the growth of secularism and the attack on religious rights. I would identify the following three trends as the chief dangers to religious liberty in our time:
1. Threat Number One: Big Government.
Our First Amendment protects religious liberty by proscribing what types of laws the U.S. Congress (and, by extension under the privileges and immunities clause of the Fourteenth Amendment, state and local governments as well) may enact, including by forbidding laws and regulations which prohibit the free exercise of religion. While this protection is not absolute, even a law which has only the unintended consequence of impinging on religious belief is potentially subject to First Amendment challenge. But not all such challenges will win the day in court. As government gets bigger, as the scope of its domain increases, and the number of previously private activities which it deems worthy of its attention grows longer, it is inevitable that more and more areas of life (including religion) will potentially become subject to its restrictions.
The rest of the story is a matter of simple mathematics: As the number of laws and regulations proliferate, the percentage chance of some of those laws impinging on First Amendment freedoms obviously increases as well. Where religion’s role in the public square is constricted or forbidden, including on establishment clause grounds, in order to avoid governmental involvement in private citizens’ religious life, then, the larger the public square, the smaller the domain left to private religious speech and activity becomes.
But there is also more going on here than simple math. As government increases its role and increasingly forces new and more intrusive relationships between itself and its citizens (or subjects?) it forgets its own relative unimportance, in the face of bigger questions, which are not the proper domain of government oversight. As people come to think of the government, through its public schools, through the political rhetoric of its political leaders, through the values clumsily expressed in certain of its laws, as a legitimate source of moral teaching, the government can become its own Establishment of Religion, with any one who dissents from its claims to be treated as a new heretic.
In the inaugural issue of First Things magazine, its founding editors penned an introductory essay explaining the purpose of that “journal of religion and public life” which included these important insights:
Authentic religion keeps the political enterprise humble by reminding it that it is not the first thing. By directing us to the ultimate, religion defines the limits of the penultimate. . . . .
By religion and public life we mean something like what Saint Augustine meant by the City of God and the City of Man. The twain inevitably do meet, but they must never be confused or conflated. . . . The polis constituted by faith delineates the horizon, the possibilities and the limits of the temporal polis. The fist city keeps the second in its place, warning it against reaching for the possibilities that do not belong to it. At the same time, it elevates the second city, calling it to the virtue and justice that it is prone to neglect. Thus awareness of the ultimate sustains the modest dignity of the penultimate.
First Things, March 1990, founding editors.
This humble view of government and politics, as important, but, ultimately, not the end-all be-all of our lives, is difficult to sustain the more our lives intersect with government at every turn.
A helpful look at the possible spectrum may be gleaned from two contrasting views of government in relatively modern times. The totalitarian vision of Benito Mussolini: “Everything within the state, nothing outside the state, nothing against the state” would not be likely to allow any religion at all, of which it does not approve, and it is not likely to approve of any religion which it has not perverted to its own ends. A government guided by Jefferson’s vision, as expressed in his first inaugural: “wise and frugal” and concerned only with “restrain[ing] men from injuring one another” but which “shall leave them otherwise free to regulate their own pursuits of industry and improvement” and “not take from the mouth of labor the bread it has earned” would likely allow a full flourishing of religious belief, and non-belief, in a variety of denominations, to peacefully coexist, with or without a First Amendment. Under such a national policy, it would be possible for even a crazy new religion, with remarkable claims of new visions, new scriptures, and a restoration of primitive Christianity and the biblical priesthood, like Mormonism, to be founded, and to flourish, even though its early leaders, a couple of generations earlier, would have been promptly beheaded or burned at the stake.
I am not really a Jeffersonian libertarian (Jefferson’s government, not even willing to outlaw slavery, is far too libertarian for me; and modern libertarians are often overly simplistic and doctrinaire in their supposition that there is no reason for the government to support policies which will strengthen families and spare their neighborhoods from harmful drugs, as though a country full of broken homes and drug-addled neighborhoods is not the surest route possible to strengthened government, as the state finds itself invited to take over the role of provider to and disciplinarian of the children in the affected neighborhoods and communities). Nevertheless, on the spectrum of beliefs about the proper role of government in our lives, I certainly want to see us far closer to the Jeffersonian vision than to the Mussolinian. There was a time when most Americans would have agreed. But I’m not so sure anymore.
Which country, Benito’s or Jefferson’s, does America 2015 more closely resemble? Reasonable minds may differ, but it’s a pretty good bet that Mussolini was more likely to take over, to choose one random example, the health care insurance industry, than Jefferson, given the former’s belief that there was no area of life outside of the state, and the latter’s ideal of leaving citizens “free to regulate their own pursuits of industry”. This probably explains why Jefferson’s administration never found itself attacking a group of nuns, like the Little Sisters of the Poor, who simply don’t want government forcing them to engage in conduct against their religious conscience, while they go about their work of feeding and clothing the destitute remainders of our increasingly atomized, faith-and-family-deconstructing, society.
Totalitarian governments, by contrast, would have no compunctions about such a fight. Indeed, as Anne Applebaum documents with numerous examples in her book Iron Curtain, about Soviet dominated Eastern Europe after WWII, totalitarians will always make it their first matter of business to target religion, both in law and in the culture, with the newspapers of such a society to be full of stories decrying the reactionary forces of religion, standing against the vision of progress offered by the collectivists and their progressive revolutionaries. There is a simple reason for this: religion represents a fundamental threat to the vision of the collectivist state as the source of all authority. As do the private voluntary organizations (Boy Scouts, Rotarians, private charities) which form the basis of civil society. As does the family.
The Soviets were right to fear religion and private civic organizations. The unwillingness of the Polish people to give to the Communist Party the legitimacy which they gave to the Catholic Church eventually led the way to freedom in the nations of the Eastern Bloc. But now the same battle has come to the West, to our own shores, and the same anti-religious rhetoric with which the Soviets tried to overcome faith in Eastern Europe, are now being used by our own collectivists here at home. William F. Buckley got this point long ago: “I believe that the duel between Christianity and atheism is the most important in the world. I further believe that the struggle between individualism and collectivism is the same struggle reproduced on another level.” William F. Buckley, God and Man at Yale.
2. Threat Number Two: Radical Militarized Islam.
No, I don’t fear the rise of sharia law in America any time soon. Certainly, the birth dearth in an increasingly secularized Europe and the resultant need of an aging population to accept waves of Muslim immigrant workers from northern Africa and the middle east, to work the jobs which pay the taxes needed to fulfill the economically unsustainable promises which were made to these pensioners, who had few children of their own to meet that burden, will be a huge part of the story for many decades to come. But what I fear in the shorter term is how the current conflicts with Islamist terrorists will cause Americans to define themselves.
America has long defined itself against our enemies and our foreign competitors, and in the coming years, those competitors are going to provide plenty of ammunition for those who wish us to define ourselves as a secular nation with a secular culture. For the first 140 years of our existence, we proudly told anyone who would listen that we were special, because we were a “republic” practicing “republican virtues.” These were rhetorically charged terms, that meant different things to different Americans at different times. But one core meaning all Americans intended when they used them during the first many decades of our national life, was that America was not, like most of the rest of the civilized western world, a hereditary monarchy. We saw ourselves as the exemplars of a better way of life, and we were only too happy when other peoples took up the revolutionary cause, and overthrew hereditary monarchies in favor of democratic republics.
This was the bragging right that Lincoln invoked and challenged us to preserve in his Gettysburg Address, calling on the nation to remember that our republican experiment was not yet a century old, and that the outcome of the Civil War would prove to the peoples governed by hereditary kings and aristocrats in foreign lands, whether any nation “dedicated to the proposition that all men are created equal” (as opposed to some men being born to rule others) with a government not of kings, but “of the people, by the people, for the people” may long endure.
This encouragement of anti-monarchical revolution (without much intervention, as it was up to the citizens of each nation to overthrow their own bondsmen) was the guiding principle of our foreign policy throughout the 19th Century, during which “the United States was usually the first state in the world to extend diplomatic recognition to . . . new revolutionary regimes.” Gordon S. Wood, The Idea of America at p. 328 (Penguin Books 2011). This tradition continued through March of 1917, when the United States took only seven days from the abdication of the Tsar to become the first nation to recognize the government which replaced his monarchy. Id. at 330. And then the tradition ended six months later. Upon the October 1917 Bolshevik takeover, no such recognition was extended to this new regime by the United States for 16 years, making America the last major western power to grant it. Id. at 330-331.
The 20th Century revolutionary tradition was no longer anti-monarchical, it was communist, and American enthusiasm for revolutions abroad was therefore over. Despite a brief future alliance of convenience between the USSR and the USA to face down Hitler during WWII, the Cold War had already, in truth, begun. A Swiss playwright and essayist, Herman Kesser, understood the new question facing the nations of the world early on, noting in 1918 that it was now “certain that mankind must make up its mind either for Wilson or for Lenin.” Id.
And so, in the Twentieth Century, Americans began to define themselves against communism. As communism was godless and officially atheistic, we would emphasis our own religiosity. Thus, in 1954, we added the words “under God” (a phrase taken from Lincoln’s Gettysburg Address http://www.firstthings.com/article/2010/08/god-and-gettysburg )
to our Pledge of Allegiance. As Communism was based on a controlled economy, we would emphasize the benefits of free economic markets. Thus, American economists like Milton Friedman and others gained a following by articulating theories describing the benefits of free markets and capitalism, and our own left-of-center politicians had to refrain from going too far towards governmental ownership or control of private industry, lest they be labeled as ideologically sympathetic to our foes.
Our foreign policy, beginning in the Truman administration, was centered on containment. Presidential inaugurals, such as JFK’s, referenced our distinctions with the Soviets, and our willingness to “bear any burden and pay any price” to prevent their success. No wonder JFK was killed by a communist. Reagan won re-election 49 states to 1, in large part because Americans loved his blunt talk about the Soviet Union being an “evil empire” and ridiculed the intellectuals who gnashed their teeth over such statements. Advocacy for an American lifestyle which was to be the opposite of that pursued behind the iron curtain was a sure formula for success in our politics.
But the cold war is over now, and a new generation which doesn’t remember anything about it has been taught a revisionist history: "McCarthyism was a much bigger threat than communism." "Want to learn about totalitarianism? Here, read Margaret Atwood’s sci-fi novel about totalitarianism coming to America in a dystopian future by way of religious fundamentalism; that’s much more appropriate reading than learning anything about real world events in the real world totalitarian governments run by progressive left-wing totalitarians in actual recent history." This new generation is not defining itself by their belief in God or their devotion to free markets, as there is no national challenge against which we might wish to so define ourselves. I remember when I was a teenager, if you wanted to be snarky to someone who had asked you not to do something, the phrase you deployed was, “hey, it’s a free country.” This was the great divide in our mind: there are two kinds of countries in the world, those that were free and those that were not. I don’t know that snarky teenagers use that phrase much anymore, as that is no longer the paradigm, and the millennial generation has learned its snarkiness at the feet of collectivist cheerleaders like Jon Stewart.
So, how are we Americans likely to define ourselves in the 21st Century? If we defined ourselves in the 19th Century an anti-monarchical republicans, and we defined ourselves in the 20th Century against the atheism and controlled economies of communism, how shall we define ourselves in the 21st Century, wherein our chief ideological and military adversary has, since 9-11-2001, been a foe motivated by a zealous and militant brand of religiosity? Will we now become anti-religious in our self-definition?
This seems to be one possible, perhaps even likely, outcome. Certainly, the in-your-face atheism of writers like Richard Dawkins and Sam Harris was much easier to peddle post 9-11, than it would have been during the cold war. This atheistic advocacy offers a simplistic but easily understood mantra for understanding 21st century terrorism: ‘religion is the problem’ and, in Voltaire’s words: “Those who can make you believe absurdities can make you commit atrocities” which was a favorite meme of social media secularists in the months after 9-11. (Never mind that the greatest slaughters in the history of the world were committed by atheists, including the secular communists responsible for the deaths of 80 million victims in the 20th Century, which might suggest either that human beings, not religion, are the problem, or that secular atheism is the most dangerous of all absurdities.) In post 9-11 America, atheists seized their chance to capitalize on religiously motivated murder and terrorism and this stuff started selling in ways it never would have before. Just as advocacy for public ownership or control of private industry was easier to refute during the cold war (“that’s communism” was all you really had to say, and anyone with common sense got your point), so also, atheism could never have gotten its current good press during that time.
What began on 9-11 does not look to cease any time soon. In the intervening years, new Islamic terrorist acts and atrocities, and new enemies, all of them asserting that they are followers of the Koran, from the Taliban to Al Qaeda to ISIS, to militarized Islamists in Iran and other Middle-Eastern nations, continue to bedevil the world. This provides handy rhetoric for those wishing to fight against religious liberty. Look up a news article on the subject of religious freedom and go to the comment section, and right towards the top, you’ll start finding examples: “I know a place where they have religious liberty! Saudi Arabia that’s where! The women can’t show their faces or drive because the religious are able to keep them from doing so under the guise of religious liberty. That’s what religious liberty means.”
In the fight against religious liberty, this provides handy rhetoric. To the degree this rhetoric begins to define us, as against our enemies, taking a stand for religious liberty will no longer be easy and uncontroversial stuff, as it once was. Indeed, recent events show just how far we have fallen from positions which were once so commonly held that to support them was to speak in boring platitudes.
3. Threat Number Three: Same Sex Marriage.
In 1990, the United States Supreme Court decided a case (Employment Division vs. Smith) regarding a Native-American’s right to use peyote in religious rituals, despite governmental prohibitions against it. The Native-American lost. In issuing its decision, the Court repudiated the balancing test it had been following for approximately 30 years, when faced with challenges brought by a defendant or a claimant who averred that a government prohibition infringed on his rights to freely exercise his religion, as guaranteed by the First Amendment. Under the prior test, a statute which was so challenged would be upheld if it was in furtherance of a compelling governmental interest, and if it employed the least restrictive means of furthering that interest.
Religious freedom advocates balked, and so lobbied for a federal law to restore the prior balancing test. The result was the Religious Freedom Restoration Act (“RFRA”), which was sponsored by congressmen and senators on both sides of the aisle, and which passed with the support of over 90 members of the Senate, and signed into law by Bill Clinton. The New York Times editorialized in favor of the measure. Standing up for religious liberty remained at the time, as it had for the prior 214 years of our history, an easy thing to do. When the U.S. Supreme Court later ruled that RFRA was only applicable to federal legislation, several states began passing their own RFRAs. Currently, approximately twenty states have such a law, and another ten have a similar balancing test in place due to judicial rules or case law. None of these laws engendered much controversy upon their enactment. When Illinois passed its RFRA statute, Barack Obama was among that State’s legislators who voted for it.
Fast forward a dozen years, to 2015. Last week, Indiana Governor Mike Pence signed a RFRA for Indiana, substantively similar (despite disingenuous subsequent claims to the contrary) to the earlier state and federal RFRAs. The result: a firestorm of controversy over what was now claimed to be an anti-gay bill, which was designed for no other purpose than to allow discrimination against those with a minority sexual orientation. Everyone knew what the law said, even though it didn’t actually say that, because they’d read it on twitter. The New York times, which had supported the original RFRA, now put “religious liberty” in scare quotes to condemn Indiana’s version of essentially the same law. Apple’s CEO called for a boycott of the State. Connecticut did the same. Angie’s List announced it would withdraw plans to expand in the state. Chuck Schumer, who had co-sponsored the federal RFRA, and Hillary Clinton, whose husband had signed it, tweeted their outrage over Indiana’s new bill, and their support for the angry mob (consisting mainly of affluent white people) who were marching upon Indiana government buildings in protest.
What in the world had changed? How had America come to a pass where its citizens were actually protesting First Amendment freedoms? Silly question. Simple answer: Same-Sex Marriage.
Or, more specifically, the strategy which same sex marriage advocates, and others in the vanguard of what have been called the "erotic rights" (governing issues such as birth control, abortion, and LGBT rights) have used to advance their cause. Over the past 30 years, advocates for homosexual rights in general, and for same-sex marriage in particular, have claimed the mantle of the civil rights movement, and cast themselves in the role of modern MLKs. Never mind that African-Americans overwhelmingly support retaining the traditional definition of marriage and voted overwhelmingly in favor of state ballot measures to uphold the traditional view of marriage in the face of judicial challenges; and never mind that the real spiritual heirs of MLK, today’s black pastors, are horrified by what the modern dismantling of the family has done to their flocks. All that mattered was the strategy. And claiming the mantle of the martyred and lionized 1960s civil rights heroes, from Martin Luther King to Rosa Parks, was a brilliant political strategy, which has been executed flawlessly. But the dangers of that strategy, and especially of its success, to religious rights (and, more generally, to the rights of anyone who wants to be allowed to dissent from majority opinion on any issue involving claims brought in the name of an oppressed minority) has become increasingly clear. Whatever your views of same-sex marriage and its related issues may be, this should bother you.
The rhetorical strategy employed on behalf of same-sex marriage advocates was brilliant because it appealed to the ideals of a generation which had, rightfully, been taught to see the leaders of the civil rights era as courageous conscience-driven heroes, and who were looking for a similar cause they could call their own, so they could emulate their heroes and enjoy their own Selma moments. We all want to live lives that matter, and to be important, and the same-sex marriage movement allowed its advocates to enjoy that self-narrative. The fact that no moral leader in history --not Jesus, not Buddha, not Ghandi, not MLK-- had previously seen the parameters and meaning of marriage to be oppressive, or had spoken out in favor of the deconstruction of the traditional family, did not give them any pause. Rather, that theirs was the first generation to rise to this moral height, only made the movement more exciting, by appealing not only to their desire for importance, but to their tendency to revel in sanctimonious disdain towards the less enlightened. But if, under this narrative, the advocates of same-sex marriage were modern civil-rights leaders, then somebody was needed to play the part of Bull Connor and the Ku Klux Klan.
Enter people of faith.
Never mind that the pre-political institution of male-female marriage has been part of virtually every society on earth for all of recorded history, in both western and non-western cultures, in both monotheistic and non-monotheistic religious and spiritual traditions, in both Abrahamic and non-Abrahamic faith traditions, in cultures which condoned homosexuality and in cultures which condemned it, and across continents and peoples who had no contact with or influence upon one another since long before the first plow. And never mind the painfully obvious reasons for the pervasiveness of this male-husband female-wife institution, given the biological realities of human reproduction and the dependent nature of human children for the first several years of their lives, which made the importance of and reasons for such an institution intrinsically and inherently clear to any one with a brain, throughout every prior generation in history. The world suddenly learned new alleged truths, that men and women were not just equal, but interchangeable, that two moms were just as good as a dad and a mom, that no child should, or would, feel deprived by being deprived of a relationship with their dad or their mom, and that treating marriage as exclusively male-female had no rational basis whatsoever, even though a male-female relationship is the only relationship that even qualifies for the marriage designation, as that designation has always been understood.
The only reason anyone would believe otherwise was because of their backward religious faith. Thus, people of religious faith needed to be dealt with, through any means necessary. RFRA laws and the First Amendment stand in the way? Then it was time to start demonizing RFRA laws, and pushing for constitutional revisions to the First Amendment (see the proposed 2014 Udall Amendment for example, which would have allowed government to override all but one of our five First Amendment rights).
Why did some people not go along with this agenda? Clearly, because they were bigots. The only possible reason for wishing to uphold traditional marriage, we were told, was due to animus and hostility towards homosexuals. Again, this was brilliant strategy, on a number of levels. First, laws which are based on animus and hostility towards a minority group are subject to a higher level of scrutiny in the courts. So, legally, it was imperative that no rational arguments made in support of traditional marriage even be given a fair hearing, let alone any credence. Never mind that the laws of every state in the union had, before 2003, affirmed a definition of marriage which had existed since long before any of those states, or that union, had been created, which definition was promulgated for purposes which had nothing to do with taking a stand against homosexuality, or with the subject even being considered.
Books (such as The Future of Marriage, by David Blankenhorn; What is Marriage, by Sherif Girgis, Ryan T. Anderson, and Robert P. George; and Conjugal Union, by Patrick Lee and Robert P. George) or law review articles presenting a variety of non-religious based, logical and reasoned and coherent arguments in defense of marriage were to be ignored in the press and kept off of bookstore shelves. If this were a debate in which reasonable people had logical arguments to make on both sides, then the laws weren’t based on animus and wouldn’t face heightened scrutiny upon judicial legal review. Thus, those court decisions which overturned traditional marriage definitions (the only decisions the press ever covers) have been notorious for simply ignoring and refusing to even discuss the losing side's arguments, so they could claim that only an irrational bias could possibly have motivated laws and constitutional amendments seeking to uphold husband-wife marriage. See for example, John Finnis, “The Profound Injustice of Judge Posner on Marriage” Public Discourse, October 9, 2014 (“[T]he argument [in favor of traditional marriage laws] that Posner is said to have refuted remains compelling. His judgment is one long attempt to hide from that argument and to conceal it from his readers. In its refusal to engage the opposing argument, Posner’s opinion disgraces the federal judiciary.” http://www.thepublicdiscourse.com/2014/10/13896/
But the strategy of calling your adversaries bigots wasn’t just important in the courts. It was also brilliantly vital in the court of public opinion. As much as human beings enjoy being sanctimonious and feeling morally superior to those who hold lesser opinions, there is an even more powerful emotion lurking in the human heart: fear. Fear of being on the wrong side of the world’s most currently trending sanctimonious divide, fear of being on the wrong side of history, fear of being on the wrong side of the powerful elites whose opinions matter; fear of not being left alone to just deal with your life without having to pass any litmus tests in your business engagements with others.
In short, no one wants to be known as a bigot, or to be driven to the fringe margins of our culture, which is what we do to bigots. Even if you know in your heart that you are not a bigot, and that you are only being called one so the person doing the name-calling can enjoy the warm glow of comparative personal righteousness in his heart, or prevail in a political battle by making it as ugly as possible to oppose him, the claim still rankles. This is especially so when it might start to hurt your career, your family, or your friendships. So it’s better to just stay silent and nod along with what you are supposed to believe and keep your dissent to yourself.
That’s the way you have to live your life in a country where it is not safe to hold a dissenting opinion or to be unpopular. See, Vaclav Havel’s 1978 essay on post-totalitarianism, “The Power of the Powerless” in which he described Soviet dominated Poland as a country whose citizens now police each other against dissent, such that top-down control becomes less important, because the would-be dissenting citizen of such a country must honor “what everyone else is doing” and know “what they must do as well, if they don't want to be excluded, to fall into isolation, alienate themselves from society, break the rules of the game, and risk the loss of their peace and tranquility and security.” http://history.hanover.edu/courses/excerpts/165havel.html
The strategy of silencing their critics (with a compliant press spending decades ignoring election results and court decisions that didn’t fit the prevailing narrative that such critics were a marginal fringe) so that soon, everyone believed that they knew what everyone else believed, or at least was supposed to believe, and what they had better believe too if they wanted to be safe, worked brilliantly. Indeed, it worked so brilliantly that the left can now be much more overt about their threats: You are no longer in danger of being silenced merely by disapproving looks at all the right parties, or feeling left out because you didn’t put up the same profile picture as all your friends to support the cause all the right-thinking people believe in this week. Oh no, you’ll now be threatened much more explicitly, both privately, but effectively, through social media, the Big Brother Orwell never saw coming, and its electronic lynch mobs, and also by the official organs of government.
If you fail to conform to the required opinions of our time, you’ll be driven from your job, even as the CEO of a company founded on your own technological innovations (Brendan Eich); your community will lose jobs (Angie’s List - Indiana); your religious college will no longer be allowed to place its education students into student teaching internships in the local school district (Gordon College); your Olympic medals will not be enough to keep you on the U.S. Olympic Committee if you haven’t received the more important endorsement of the same-sex marriage lobby (Peter Vidmar); despite your status as a best-selling and award winning science fiction and fantasy novelist, you’ll be de-invited from penning a comic book for DC, if your dissenting views are made known, and a film of one of your books will be boycotted (Orson Scott Card).
In the process, each of the components of religious liberty which have been honored in our Country since its outset, will be trampled. A wedding photographer who declines to provide her services to a same sex commitment ceremony is subject to a governmental fine, contrary to the belief most Americans have shared since prior to our founding, that such "[p]enalties are impertinent" if used to "compel men to quit the light of their own reason, and oppose the dictates of their own consciences" (John Locke 1689). As was the case in Soviet dominated Eastern Europe, the Boy Scouts will be targeted by our own home grown leftist totalitarians, and, in violation of the Constitutional principle that there may be no religious test for a public office or public trust (U.S. Const. Art. VI), California Judges will be told they may have no affiliation with the Boy Scouts, troops of which are sponsored by many of those judges' religious congregations. Religious-sponsored adoption agencies will be decommissioned from their public trust with governments which had previously sought out their assistance. The notion that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein" (Justice Jackson, W. Va. State Board of Education v. Barnette (1943)) will be set aside in order to establish Orwellian “human rights commissions” whose petty officials prescribe away, and force citizen compliance. Indeed, each and every one of the principles of religious freedom with which this essay began have in recent years been challenged, and more often than not, a clash between religion on the one hand, and gay rights in general or same sex marriage in particular on the other, has been the root underlying dispute. The elites which control the media, the universities, education, and government have decided that in this clash, our new-found, and judicially created erotic rights (from abortion to same sex marriage) are more important than the foundational rights actually included within the text of our Constitution, such as the free exercise of religion.
In the face of such onslaughts, same sex marriage dissidents who were motivated primarily by their own reason and logic, will eventually abandon the field, rather than continue to be treated as outcasts, unfit for tenure or promotion, over political opinions which they don't feel strongly enough about to continue to be martyred for. See, e.g.,
This will leave only those with a religious conviction to draw upon, and a belief that there are truths worth being persecuted for, to stand and fight. And this, in turn, will mean that people of faith will increasingly become the collectivist totalitarians’ special target, just as they were in post WWII Eastern Europe.
The Vicious Cycle
Last week's protests in Indiana were, at root, motivated by all three of the threats listed in this essay. The protesters were wary of a law designed to decrease the power of big government, and, instead, desirous to allow government to enact and prosecute whatever laws it wants to without the need for those laws to pass any balancing tests such as RFRA imposes; unsympathetic to the religious viewpoints of those whose concerns motivated the law (with plenty of the protesters willing to equate the religious right with the ISIS or the Taliban); and, in protesting on behalf of members of the LGBT community, needed to find someone to protest against, including any local business owners who expressed religious concerns about catering a same sex wedding, with one pizza restaurant who gave the wrong answer to a reporter's question on that issue being threatened with violence because of his backward views. Thus, each of the three threats to religious liberty work in a vicious sync which feeds the other elements of the cycle. One searches in vain for some new Rodney King to ask the question, "can't we all just get along?"
But the cycle works on a larger scale as well. The law's and the culture's increasing stridency with respect to erotic rights issues will continue to deconstruct the family, leading to more fatherless children, which, in turn, will feed the need for bigger government, to provide welfare benefits and juvenile criminal infrastructures, for the feeding and disciplining of children who are unable to look to a father and a mother, acting together, to provide what the state will now handle. This bigger government will, in turn, trample upon more and more previously private concerns, including religious belief systems. In the meantime, as big government increasingly finds itself at odds with religiously motivated dissenters from its imposed mandates (Hobby Lobby) and as advocates for same sex marriage increasingly find themselves at odds with religious dissenters, the radical Islamist terrorists will be standing by, for use as a handy caricature of religious believers, and a handy rhetorical tool about the dangers of religion, to be deployed in these other culture war skirmishes.
The End of Dissent and the Death of Freedom of Conscience?
In the meantime, is there a reason we are not even allowed to civilly debate these issues? The civil rights legislation of the 1960s, affording greater opportunities to minorities and greater protections for women in the work-force, have led to changes which made the world a better place. The changes which have occurred in our society under the aegis of big government and the sexual revolution? Not so much. Big government promised it would end poverty, but seems only to have subsidized the behaviors which create poverty. The sexual revolution promised us that abortion and birth control and no-fault divorce laws would create a world of fewer unwanted children and happier adults. Instead, the rate of births to unmarried mothers has skyrocketed, from 5% to 50% within my lifetime. No-fault divorce laws, which allow for unilateral abandonment of one’s spouse without cause and against the spouse’s wishes, have led to skyrocketing poverty rates for women and children. History will determine whether government's current fixations and excuses for growth and for more and more legislation, will be as helpful to humanity as were legal civil rights protections, and whether the rise of same-sex marriage and other erotic rights will be a huge leap forward for humanity, as its advocates proclaim, or will merely exacerbate the devastating effects which earlier phases of the sexual revolution already brought us. Surely, given the now-proven falsity of many of the left's promises in support of their prior crusades, we should at least be allowed to debate these issues in the public square, including on religious grounds, without traditional viewpoints being shouted down instead of debated.
The original objector to a government so powerful it could unhinge itself from existing traditional legal and religious norms, and its chief officer could redefine marriage, was perhaps Sir Thomas More, who refused to condone Henry the VIII’s self-proclaimed divorce, or, therefore, to recognize as legitimate the King's subsequent marriage to another bride, and who was beheaded for his troubles.
In Robert Bolt’s play about these events, A Man for All Seasons, he gives to More the following speech, shortly after he is convicted: “What you have hunted me for is not my actions but the thoughts of my heart. It is a long road you have opened. For first men will disclaim their hearts and presently they will have no hearts.” The fulfillment of this prophecy about what a society will do to the wills and hearts of people who are hunted for their beliefs and thought-crimes, can be found in Havel’s above quoted essay on the Power of the Powerless, describing how life in Soviet-dominated Poland created just such an outcome: “Individuals need not believe [communist society’s required ideology and pretenses], but they must behave as though they did, or they must at least tolerate them in silence, or get along well with those who work with them. For this reason, however, they must live within a lie. They need not accept the lie. It is enough for them to have accepted their life with it and in it. For by this very fact, individuals confirm the system, fulfill the system, make the system, are the system.”
Similarly, not everyone in America will come around to believing in the lies on which the alleged benefits of big government, the alleged evils of religion, and the alleged case for non husband-wife "marriage" are based. But they will be required to pretend that they do believe these lies; and to therefore become the system which promotes the lies. Religious liberty was designed to protect us against this soul-robbing power of ideological authority and compulsion. Which is why those who want to compel "proper" beliefs in others are against this liberty.
Even if you agree with the claim that same sex marriage is a righteous and desirable cause, there is a greater principle at stake here than that cause. Even ostensibly righteous ends do not justify liberty-destroying means. That is one of the core concepts of my faith, as expressed in some of its canonized scripture, known as the Pearl of Great Price. And that is also one of the core concepts of the American faith, as expressed by its founding generation in word and in deed. “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” Thomas Jefferson. There is no cause so righteous or virtuous that it justifies enslaving the human mind, or proscribing orthodoxy of societal belief. That’s why we have a First Amendment. And that’s why we need to keep it. Whatever other adverse consequences may stem from redefined marriage, big government, and the attack on all religion as equivalent to its most violent believers, including the increased fatherlessness to which all of these trends will contribute, one of the most harmful long term effects will be how these trends are utilized to destroy freedom of conscience.
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