By MIKE MANNO
For many orthodox Catholics, like myself, and a good number of sincere followers of other faiths, the issue of religious liberty and conscience rights are the bedrock principles upon which we build our political ideology. Other issues, while important, we look at with varying degrees of interest. But for those of us who feel as I do, religious liberty and rights of conscience are the sine qua non of liberty itself.
Thus, much of my public expression has focused on protecting and defending those rights, and in many cases, warning about infringements on them. My earliest contributions to The Wanderer in the early 2000s, as well as numerous freelance articles and op-eds, and now a weekly column have mostly centered on those issues. Six years ago, on Iowa Catholic Radio, I began a weekly radio program, Faith on Trial, which was dedicated to these same concerns. That program ran for four years and there was talk of syndication, when the bishop pulled the plug on it.
On the show we had guests from all faiths, clergy and lay, as well as some of the most nationally prominent attorneys who were in the courts every day defending freedom of conscience and religious liberty across the land.
Of course we discussed other issues, such as abortion, assisted suicide, free speech on campus, and the like, but in the final analysis almost every one boiled down to an issue with someone’s religious freedom or right of conscience.
When that program started, the station manager asked if there was enough material for a half-hour program. I assured him there was, and by the time the station was told to terminate the program, it had been expanded to an hour and was given a prime slot every Tuesday morning (and replayed that night), making it one of the station’s most popular local programs.
But in all that time I have dealt with these issues, I have struggled to find a reason — a logical reason — why these core freedoms have come under such public disdain that they almost seem to be teetering like a baby trying to maintain its balance while taking its first few steps.
I did, however, run across an explanation, one that had me wondering why I had not thought of it. It was given by Notre Dame Law Professor Gerard V. Bradley in remarks to The Heritage Foundation last November, and published this month by Heritage.
Professor Bradley noted that religious liberty in America, while originally rooted in a Protestant culture, was elastic enough to eventually embrace Catholicism as well as Judaism to become what he termed a “tri-faith” into what is now called the “Judeo-Christian” tradition which represented a melding of biblical religions.
There were, of course, many religious outliers who either distrusted mainstream religion or rejected a concept of a Supreme Being altogether. Yet these outliers, such as the Jehovah’s Witnesses, who believed in no human government, were still accorded the religious and conscience protection when their children refused to take part in the Pledge of Allegiance often in violation of state laws.
Additionally, this religious freedom was extended to people who belonged to no particular religion. The Supreme Court ruled that conscientious objector status (United States v. Seeger) did not require that the objector have any religious affiliation, but only that he sincerely held his opinion; it also ruled (Illinois v. Frazee) that an objection to working on Sunday could be held has a legitimate religious belief in an unemployment context, even though the claimant did not attend church.
These religious freedoms were thus given broad protection by the courts and society in general. “Each of these encounters left its mark,” writes the professor. “Religious liberty changed and grew stronger and more inclusive, even as America experienced, in addition to all the challenges just described, profound secularization through the whole twentieth century. Religious liberty weathered that challenge, too, providing itself a most resilient ‘first freedom’.”
So what changed? According to Professor Bradley it was identity politics. “For the first time in American history, it recently became respectable to publicly oppose religious liberty and its supreme value in our policy. This unprecedented turn is ominous. It will not only diminish our constitutional law. It will remap our common life, for religious liberty has always been a strategic linchpin of our political culture.”
While Americans in the past have opposed particular religious claims, such as Mormon belief in polygamy, most opposition has dealt with opposition to a specific activity, or prejudice against a religious minority. But what is happening now is a wholesale hostility to religion.
The reason, the professor opines, is the rise of identity politics, of which the sexual revolution plays no small part. In defense of his assertion, he lists three examples:
The first he labels “self-understanding”; in it, the claim against religious freedom is made by a person self-identifying as a member of a supposedly vulnerable group. Thus, as in the cases of bakers refusing to bake a wedding cake for a same-sex wedding ceremony, the baker’s refusal is cited as discrimination against a homosexual customer because of his sexual orientation, not because the baker has an objection to celebrating a same-sex wedding.
The same is claimed against the teenager who refuses to disrobe in a locker room in the presence of a member of the opposite sex; or the religious entity, such as the Little Sisters of the Poor, who refuse to distribute contraceptives. They are all accused of demeaning the other person’s self-understanding.
He cited, as a glaring judicial adoption of this, Justice Ruth Bader Ginsburg’s dissent in the Masterpiece Cakeshop case, wherein she noted that the baker’s decision not to make a cake was not due to an offensive message, but because of the sexual orientation of the customers, opining that if the complaints’ were not gay, the baker would have baked the cake.
The second reason he labels “imprimatur,” which simply is the belief that where a court or public agency recognizes the religious liberty of the baker, it must follow that the government has placed its imprimatur on the “unjust discrimination.” Of course, as he suggests, “No one ever suggested that, when the Jehovah’s Witnesses won the right not to salute the flag, the Court was endorsing their denial. . . . Lawmakers who recognize Amish claims about limited schooling do not thereby ratify Old Order Anabaptist beliefs.”
He continues, “This claim about ‘imprimaturs’ is jerry-rigged to make the facts of these cases fit an identity politics morality tale.”
His third reason is styled “dignitary harm.” “The idea seems to be that when one is refused a service due to the provider’s moral qualms about activities of yours that you are inviting him to participate in or assist, one’s person or identity is ‘demeaned,’ and ones ‘dignity’ is attacked.”
The concept here is one we’ve discussed before that we’ve identified as micro-aggression, where an individual perceives an insult to his character which he claims humiliates or demeans him without regard to the actual motivation of the other. “We are securely in the realm of identity politics, where self-esteem — at least for those who happen to be in favor — rules the day,” he writes.
He concludes, “The appeals of aggrieved sexual minorities are, to be sure, very powerful these days. But even they could not threaten religious liberty if identity politics had not already infiltrated, and hollowed out, religious liberty itself. Before sexual identity could emerge as the colossus it is, religion had to be reduced from a set of beliefs and truth-claims about the way the cosmos really is, to nothing more than one’s singular expression of ineffable spiritual experiences and/or of the collective identity of one’s religious tribe….
“Indeed, only after the public realm was secularized and religion thus privatized and in the private sphere treated as just one of many possible sources of personal ‘identity’ could American religious liberty be so threatened by rival claims — in fact, demands — of others to define themselves sexually, and to do so without having to endure moral criticism by others.”
In short, what I think the professor is pointing out, is that the societal secularization we have been seeing in our culture has inflated the concept of selfness equal to or even more sacred than the concepts of religious freedom and conscience rights.
A review of the latest conflicts in this area, I think, will confirm this observation. In the case of the bakers, for example, the initial reaction omits any reference to the baker’s conscience rights, but only about the complaining party’s identity as a gay person. The long and the short of this is that if the customer was not gay, but trying to purchase a wedding cake for a same-sex wedding, the order would still have been refused.
The same could be said about the high school sophomore who doesn’t want to use the same locker room as her male classmate. He claims he is being disrespected and demeaned by her attitude while she only wants privacy.
Our last administration, and some courts, however, had taken the side of the gender-confused boy. His rights, unfortunately, must be considered superior to her modesty, which is often considered not only inferior, but sometimes illegitimate.
Professor Bradley has drawn a pretty clear line in the sand. There is more to be put on the other side if it, but this was an insightful presentation.
(Mike can be reached at: DeaconMike@q.com.)
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