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“Let My Conscience Be Your Guide” (Hoover Digest, Fall, 2015) October 13, 2015

Posted by daviddavenport in Newspaper Columns/Essays.
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America is moving into uncharted territory as it enters a post-Christian era. This shift has been evident for several years, with reported drops in church attendance and belief in God, but Justice Anthony Kennedy and the US Supreme Court gave it a big push with last summer’s decision in Obergefell v. Hodges concerning same-sex marriage. The court decisively shifted marriage away from not only the states but also the church and conservative religious understandings of the institution. While the court gave lip service to the ongoing role of religion in marriage, it spoke only in limited terms of the right to “advocate” or “teach” historic values about marriage, avoiding the broader language of the First Amendment right to “exercise” its religious tenets.

A deeper and more disturbing philosophical argument being advanced is that God and the church must adjust their moral and doctrinal understandings with the times. Frank Bruni, a columnist for the New York Times, wrote that Christians should rightly “[bow] to the enlightenments of modernity.” He quoted with approval businessman and gay philanthropist Mitchell Gold, who said church leaders must be made to “take homosexuality off the sin list.” Hillary Clinton, speaking of reproductive care and safe childbirth at the Women in the World Summit, sounded a similar theme, saying “deep-seated cultural codes, religious beliefs, and structural biases have to be changed.” Even the Archbishop of Dublin, after Ireland’s vote on gay marriage, said the church needed to do a “reality check” to see whether it had “drifted completely away from young people.”

The notion that God must keep up with the times is more than a little presumptuous, as well as historically unconstitutional, but that seems to be where the law is heading. An emerging limitation on the First Amendment right to the “free exercise of religion” would apparently require that such religion be in touch with the spirit and understandings of the modern age. Perhaps the Fourteenth Amendment promise that “no state [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” now trumps the First Amendment’s free exercise of religion, which would be a momentous and stunning conclusion, reached with essentially no debate.

Especially troubling for religion was Kennedy’s invention of a right to “equal dignity” in support of the Obergefell decision. In the closing line of the opinion, the court said those seeking the right to gay marriage “ask for equal dignity in the eyes of law. The Constitution grants them that right.” But read the Constitution from beginning to end and you will find no such right. Kennedy has long searched for a right to equal dignity, mentioning it in his opinions in the Casey abortion case, the Lawrence sodomy decision, and the Defense of Marriage Act (DOMA) case, as well as in this latest opinion. But whatever equal dignity means to Kennedy, such a right would be so vague and broad that it could mean almost anything as a legal standard. Although none of the cases has attempted to define equal dignity under the law, dictionary definitions of dignity talk about respect and esteem. In our crowded, busy, and increasingly impolite society, one regularly encounters indignities everywhere.  Apparently some unspecified grouping of those, at least if such affronts involve the state, is now unconstitutional.

In particular, it is easy to foresee a clash between a conservative Christian exercising freedom of religion and a gay couple’s right to equal dignity. A number of religious conservatives or traditionalists, including Muslims, some Jews, and some Christians, believe that gay marriage violates their religious beliefs and principles. Some believe that according to the Bible, homosexuality itself is a sin. Does such a belief constitute a failure to extend dignity and is therefore against the law? How about preaching it from its pulpits? Might that even be a form of hate speech under the law? In his dissenting opinion, Chief Justice Roberts saw hard questions arising when, “for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex couples.” These are all looming clashes between the growing jurisprudence of equal dignity of the Fourteenth Amendment and the shrinking First Amendment right to the free exercise of religion.

Indeed, a number of these clashes are already occurring. Immediately after the decision, some county clerks refused to issue marriage licenses to same-sex couples in violation of their conscience, in at least two cases with state support, and these questions are now in court. The question has been raised whether churches that do not fully comply with the right to same-sex marriage should lose their tax exemptions. Florists, bakers, and photographers who say that participating in same-sex ceremonies violates their religious beliefs have already been subject to legal action, including a $135,000 fine and gag order imposed on Christian bakers in Oregon. Senator Mike Lee of Utah has introduced the “First Amendment Defense Act” in Congress in an effort to protect religious liberty and tax exemptions in the wake of Obergefell.

Over time, the pendulum of religious liberty has swung left and then right. Efforts to remove God from the public square brought about the religious right. A court decision limiting religious liberties served as a catalyst for religious freedom restoration acts, both federal and state. More recently, the Affordable Care Act provisions about abortion and birth control triggered the Hobby Lobby case affording religious rights even to a privately held company. In the Obergefell case, proponents of gay rights had said that same-sex marriage should have no effect on other people or society as a whole—it was just about letting two people in love get married. But, as Roberts observed in his dissent, “Federal courts are blunt instruments when it comes to creating rights,” and this case will have profound implications, including challenges to religious liberty.

The present times feel less like the temporary swing of a pendulum and more like a new era of more limited religious liberty whenever it clashes with the freedoms or dignity of others. A new secular orthodoxy has trickled down from the elites to the larger society, and has now been codified by the Supreme Court. God has survived countless forms of government throughout the ages and will doubtless find a way through this one as well. But, as Roberts warned, “hard questions” about religious liberty under the Constitution lie ahead, ones that Justice Clarence Thomas warned hold “potentially ruinous consequences for religious liberty.” This is the new normal in post-Christian America.

See the original Essay in the Fall, 2015 Hoover Digest:

http://www.hoover.org/research/let-my-conscience-be-your-guide

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