Our First Freedom

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The primacy of religious freedom in the social order of free societies, historically acknowledged in America if not perfectly realized, is today under intense attack by secularist thinkers and their followers, whose true object is not state neutrality about religion, but the elimination in practice, and ultimately, in belief of religious doctrines they object to.

Unless traditional Christians and other supporters of the historic understanding vigorously and persuasively challenge the attempt to subordinate religious freedom to government policy, it will come to be accepted by increasingly large parts of the population. The hostility that already exists to real religious freedom that can withstand legal assault will become entrenched, making eventual recovery of religious freedom that much more difficult. This will threaten the life of those religious groups whose beliefs are disfavored.

Law and morality really address the same question: what should we do? The claim of religious freedom is really the claim of a supernatural authority which transcends the human authority under which a person finds himself. No state can ever formally concede that its laws may ever be disobeyed, and yet everyone (hopefully) concedes that there may be moral imperatives that contradict the law of the state. Where a supernatural authority is claimed for those moral imperatives, there is a claim for religious freedom.

As this writer has noted in earlier articles, religious freedom seems to have been a specifically Christian idea, based on the importance of the individual's duty to God within Christianity. This was claimed by Tertullian in perhaps the first claim of religious freedom, made well before the Roman persecution of Christians ended, in saying that there is "fundamental human right, a privilege of nature, that every man should worship according to his own convictions." While religious freedom did not commonly characterize the Middle Ages, it remains true that, as Thomas Aquinas maintained, at least in theory, "unbelievers are by no means to be compelled to the faith...because to believe depends on the will."

The breakup of western Christendom at the time of the Reformation gave a practical reason to sanction religious freedom for specified groups, namely, civil peace. But even in this early modern period, such thinkers as Roger Williams and John Locke advanced principled defenses of religious liberty based on an individual's duty to God, the imperative of sincere belief, and love of neighbor.

Apparent in all of these arguments is the claim that a person's duty to pursue the truth, and to obey God as one understands his commands to be, should supersede the claims of secular authority. This was specifically stated by James Madison in one of the most fundamental and famous of America's religious liberty documents, the Memorial and Remonstrance Against Religious Assessments, in which Madison specifically said that:

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

While Madison recognized that the final, binding rule of the state may in fact contradict conscience, it is nonetheless trespassing on the rights of conscientious objectors. The dilemma of the law of the state conflicting with morality has been handled historically with conscience protections written into law. This was done most notably with military conscription. In the life and death struggle of the Second World War, liberty of conscience was allowed for those who were convinced that combat or noncombatant military service was contrary to the will of God and thus immoral, even though the state required military action to survive, and in that sense military conscientious objection posed a great harm to society. Similarly, the Church Amendments, which followed the decision to legalize abortion, allowed medical personnel to decline involvement in abortion procedures, despite the claim of abortion advocates that abortion may be needed for a woman's health.

Why would the state grant exemptions to laws deemed beneficial, or, in the case of military service, essential to society? It was the result of a general recognition that no one should be compelled to take actions he or she believes are wrong, and religious believers in particular, believe disobedience to God is wrong. Liberty of conscience protected the free exercise of religion.

Today, we see an assault on religious liberty by social liberals who believe that the moral imperative of obeying a God who is an absolute monarch, which is the ultimate and non-negotiable commitment of traditional Christianity (and Judaism and Islam), is primitive and cruel. In particular, the sexual morality believed to be enjoined by God is held to be cruel, as well as the exclusion of unbelievers from God's favor. And so laws and binding state policies are devised that require traditional Christian and other traditional believers to violate their consciences. The HHS mandate seems particularly designed to do this, with many exemptions for secular reasons, but a very narrow religious exemption. Similarly, a federal court in Washington state found state regulation pertaining to pharmacists was specifically designed to require pharmacists to violate their consciences in providing abortion inducing drugs.

While social liberals claim an ultimate commitment to personal autonomy, the real rationale by which liberty of conscience, held to be above the claims of civil society by Madison, is denied at the present time is the liberal concept of quality of life. As an important instance, contraceptives and abortion inducing drugs give people a better quality of life, social liberals think, and religious objections must be defeated by requiring believers to violate their consciences. Similarly, customers for the Plan B abortifacient must not be subjected to the indignity of hearing that the pharmacist cannot in conscience supply it, nor must homosexuals be subjected to the indignity of hearing a religious merchant tell them that he or she cannot in conscience supply goods or services. Clearly, social liberals have in mind a vision of the good life to which all of society must bend.

But however much prevailing opinion changes, real moral considerations do not ever change. Christopher Tollinson of the Witherspoon Institute has provided an excellent defense of liberty of conscience, arguing that it is always wrong to require persons to act against their conscience -- although it may, in some circumstances, be possible to forbid actions an individual considers obligatory. Tollinson notes that it matters not whether a person is correct in his or her belief that a legally required action is wrong, it is still wrong to require that person act against his or her moral judgment.

It is precisely this which is now being required by western governments and the supranational bodies of the European Union. In a devastating ruling at the beginning of last year, the European Court of Human Rights appeared to give some protection to liberty of conscience. It ruled that a check-in clerk at British Airways could not be forbidden from wearing a cross, although a hospital nurse could. Neither considered it morally obligatory, however. On the other hand, a marriage registrar who sought to decline to perform homosexual civil partnership registrations and a sex therapist who sought to decline counseling regarding homosexual behavior lost their cases, with the court declaring that the "rights of others" meant both employees should be required to take actions they believed were morally wrong.

Similar reasoning that people are harmed unless others take positive action to violate their consciences is heard commonly, particularly with respect to the HHS mandate, requiring religious employers to supply contraceptives and abortifacients. In an article arguing against corporate liberty of conscience (not entirely a separate issue, since individuals are really responsible for the decisions of corporations) The Economist magazine held that the claim that contraception and abortion furthers public health means that employers must provide their employees with benefits they believe to be immoral. To pursue the least restrictive means of burdening religious belief (which might include the government paying for these goods itself) would result in "custom-tailored exemptions from the law." Having no exemptions, of course, defeats the purpose of the Religious Freedom Restoration Act.

Full implementation of the program of social liberals will make much of life impossible for orthodox Christians and other traditional religious believers, since they cannot on any account violate their consciences. The U.S. Conference of Catholic Bishops 2012 Statement on Religious Liberty listed social action which is taken in implementation of Catholic faith which is prohibited in various American jurisdictions, or nationally. The enormous Catholic contribution to social service provided through schools, hospitals, charitable organizations (all of which implement the religious duty to serve God and neighbor) is at risk of elimination through government regulations and adverse actions forbidding action in line with Catholic teaching. Depriving society of this benefit is an enormous harm.

Catholic hospitals in particular serve 15.8% of patients, and like other Catholic services that strive to reach the neediest recipients, Catholic hospitals excel in providing care in "services considered unprofitable," according to the National Catholic Reporter, as well as leading other non-profit and for profit hospitals in other areas. Similarly, Christian entrepreneurs have benefited the economy through successful and productive businesses such as the retailer Hobby Lobby or the cabinet maker Conestoga Wood, both of which will have their cases against the HHS mandate reviewed by the Supreme Court. Service to God as specifically Christian businesses is an important part of the reason for their origin and existence; without that motivation, they would not exist.

Currently secularists are both attacking the idea of social service as principally a service to God and insisting that religiously based requirements are harmful. As a result of this type of thinking, there are, for instance, numerous cases of medical personnel or students facing coercion to facilitate abortion or euthanasia. But their arguments assume that what they deem to be a high quality of life for adults supersede moral considerations of the sanctity of life and the devastating loss of life and health caused by violating these considerations.

While they may insist that the loss of religiously motivated social services should be blamed on refusal to give up religious dogma, it is in fact they who insist that society function on a strictly rationalist basis, excluding supernatural considerations. Perfectly rational people accept religious belief, and provide superior service on that basis. Since God and his revelation do not change, for such committed believers, it is not really a question of whether they will afford their talents on a religious or secular basis, but whether they will afford them on a religious basis, or not at all.

While the Supreme Court has been the source of much state imposed secularism in our society, a comment in one of its strongest decisions attacking Christian morality provides some rationale for co-existence between religious and secular America, and perhaps, since stated by the Supreme Court, some hope for legal improvement in the future. The majority in the Lawrence decision (2003), which voided state sodomy laws, wrote that:

the condemnation [of homosexual conduct] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons, these are not trivial concerns, but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.

If Christians and other similarly committed traditional religious believers are to function in society, their consciences must be accommodated. If they are not accommodated, they cannot function in any area of their lives to the extent that they are not accommodated. Those who do compromise will ultimately be absorbed into the secular society.

Those who do not must live as a subculture, but a subculture that can contribute much to the wider society, and should be allowed to do so despite the offense given to those who object to Christian faith and morality. But this is not only practical, it is also right.

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