The First Freedom Fades

By Ramesh Ponnuru

Thursday, October 24, 2019

A lot of Democrats were annoyed by a comment Beto O’Rourke made at a CNN forum on gay rights. Asked whether churches that “oppose same-sex marriage” should lose their tax-exempt status, the former congressman and current presidential-race asterisk said, “Yes. There can be no reward, no benefit, no tax break, for anyone, any institution, any organization in America, that denies the full human rights, that denies the full civil rights, of everyone in America. So as president, we’re going to make that a priority. And we are going to stop those who are infringing upon the human rights of our fellow Americans.”

Two other candidates for the Democratic nomination, Senator Elizabeth Warren and South Bend mayor Pete Buttigieg, rejected this idea. Legal analysts said that the Supreme Court’s current jurisprudence blocks governments from discriminating among churches on the basis of their doctrines. Some liberal commentators criticized O’Rourke for handing Republicans a talking point. Jordan Weissman wrote in Slate, “He is turning himself into a walking straw man, the non-fringe guy Republicans can reliably point to when they want to say, ‘See, the libs really do want to take your guns and shut down your churches’” (emphasis in original).

O’Rourke himself backed down in part, with his campaign explaining that the tax exemption would be revoked only for institutions that fired or refused to hire people because they are married to someone of the same sex.

But O’Rourke’s comment did not come out of nowhere. During the high court’s consideration of whether the Constitution commands same-sex marriage, Justice Samuel Alito asked whether an affirmative answer would lead to an end to tax exemptions for opponents. The Obama administration’s lawyer arguing the case allowed that it might.

Over the last generation, progressives have become much more hostile to claims of religious liberty and conscience rights. In 1993, Congress passed the Religious Freedom Restoration Act nearly by acclamation. Under the law, people whose ability to exercise their religion was substantially burdened by a government policy could ask for exemptions. Judges would deny them only if applying the policy to them was the least restrictive means of advancing a compelling governmental interest. Now, however, Democrats generally want to narrow the 1993 law.

Liberal intellectuals have coalesced behind the view that conservatives are now abusing claims of religious liberty. They have advanced two principal arguments. First, they say that the law was originally meant to protect minorities such as Jehovah’s Witnesses and Quakers, not extremely large groups, such as Catholics, that had lost political struggles. Second, they say that religious freedom should be a “shield” and not a “sword”: not, that is, a way religious believers can inflict harms on other people. Letting religious employers refrain from offering their employees insurance plans that cover contraception, or some forms of contraception, is on this theory an abuse. So is letting religious vendors of wedding services — florists, bakers, photographers, wedding-hall owners — decline to be involved in same-sex unions.

Whatever else may be said for them, both arguments are departures from a long American tradition of religious pluralism. Religious exemptions have historically been granted for large religious groups: The Volstead Act implementing Prohibition exempted the sacramental use of alcohol, such as in Catholic Masses. Religious objections to wars have long been honored, too, even though in practice they have meant that other people have had to risk their lives in the dissenters’ place, which is at least as large a harm as having to find a different photographer.

Nevertheless, the American Civil Liberties Union has switched its position on the religious-freedom law and so have many Democrats. Many of their presidential candidates, including Senator Warren and Mayor Buttigieg as well as O’Rourke, have endorsed the Equality Act, which forbids discrimination on the basis of sexual orientation or transgender status and specifically denies religious believers the ability to ask for an exemption. It would be the first such exemption enacted since the 1993 law. Many of the candidates have also endorsed the Do No Harm Act, which would weaken that law by blocking any religious exemptions that would cause “meaningful harm, including dignitary harm,” to anyone.

Around the same time that O’Rourke made his provocative comment, Attorney General Bill Barr was causing a different kind of religio-political controversy. In a speech at the University of Notre Dame, he argued that the Founders thought religious belief was crucial to the health of a free society, that the rise of secularism was causing baleful social consequences, including an increased number of suicides and fatal drug overdoses, and that secularist intolerance was a threat to religious freedom.

Barr painted with a broad brush. Critics could justly have pointed out that his comment that “the Founding generation were Christians” is an overstatement, or noted that some social trends, including a long-running reduction in violent crime, tell against his gloom, or challenged him to be more precise in defining “secularism.”

Instead they went nuts. Barr described the entertainment industry and academia as engaged in “an unremitting assault on religion and traditional values.” Chicago Tribune columnist Steve Chapman said that the line “comes close to denying the rights of nonbelievers to express their disbelief.” That’s true only if Chapman’s criticism of Barr comes close to denying religious people their right to free speech, which is to say it’s false. Liberal legal commentator Dahlia Lithwick went beyond Chapman, taking Barr to have engaged in coded anti-Semitism.

Catherine Rampell wrote in the Washington Post that the speech was “terrifying” and that Barr had come out for a “state establishment of religion.” Jeffrey Toobin, with customary restraint, told readers of The New Yorker that Barr had given “the worst speech by an Attorney General of the United States in modern history.”

Toobin took aim at Barr’s claim that the Framers had thought free government was suitable only for a religious people. False, said Toobin: They thought it was suitable for nonbelievers, too. Toobin cited Justice Hugo Black, who wrote in 1961 that the government could not compel belief or disbelief, or attempt to “aid all religions as against nonbelievers.” Here Toobin has built a Jenga tower of non sequiturs. Barr didn’t say that government should attempt to compel religious belief or that the Constitution allows it; he didn’t contradict Black. Toobin himself didn’t actually contradict the proposition Barr attributed to the Framers: Whether a free society can include nonbelievers is a different question from whether it can be dominated by them.

As it happens, the relationship between an individual’s belief and society is the most important topic Barr got wrong. He said that “Christianity teaches a micro-morality” while the “new secular religion teaches macro-morality.” The former focuses on “our own personal morality and transformation,” the latter on “commitment to political causes and collective action to address social problems.”

This distinction does not hold up. The left-wing mindset Barr has in mind can be extremely prescriptive about individuals’ use of language, consumption choices, and associations. And Christianity asks individuals to participate in fighting social evils. Christians involved in the abolitionist, civil-rights, and pro-life movements were all told that they should pray quietly at home and church, and all rejected that misunderstanding of their faith.

This was a false step in Barr’s argument. He does not really think of Christianity in this overly individualistic way, which is why his speech also defended “laws that reflect traditional moral norms” against abortion and euthanasia. The aggregated effects of individuals’ religious and moral beliefs were more or less his theme.

Which brings us back to O’Rourke. It is not quite right to say that the Supreme Court requires the government to be neutral among religious institutions. It has allowed the revocation of a tax exemption for a university that banned interracial dating on religious grounds. (That’s why Justice Alito asked his question.) If the public comes not only to favor same-sex marriage but to regard opposition to it as akin to racial bigotry, then religious freedom will not long survive for the holdouts. In this discrete matter, Barr is undoubtedly correct to posit that traditional religious belief is a crucial protection for freedom.

He is likely correct in a broader way as well. Our sense that religious freedom is worth protecting at all is based on the understanding that being in the right relation with God, if God exists, is important. Without that understanding, there is no need to specify a freedom to go to synagogue rather than to affirm a freedom to enter and exit buildings generally. A society that has broadly lost this sense of the divine will not grasp the case for religious freedom and will greet its advocates with incomprehension — as O’Rourke, and Barr’s critics, are illustrating.