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The Future of Religious Freedom in America

The struggle in American law and politics over same-sex marriage, which began in earnest in the 1990s, may be said in retrospect to have entered a new phase in 2009 and 2010. Those were the years when the state supreme court in Iowa and a federal district judge in California invoked the authority of constitutions to declare, first, that laws defining marriage as a relationship of one man and one woman reflected a distinctively “religious” understanding of marriage, and second, that such laws truly sprang from a kind of “animus” against gays and lesbians that was not merely blameworthy in itself but deprived such laws of any legitimate rational basis.

The conjunction of these two propositions is obvious: the age-old view of marriage as the conjugal union of husband and wife is “religious” in the sense of embodying a sectarian view, and a hateful sectarian view at that. Hence it cannot be constitutionally permissible to define marriage in law according to that view (actual constitutional provisions supporting this conclusion to be located and conscripted at a later time). The Iowa state decision of 2009 and the California federal court ruling of 2010 were the out-of-town tryouts for the 2015 Obergefell v. Hodges decision, in which five Supreme Court justices led by Justice Anthony Kennedy followed the same script to impose same-sex marriage on the entire country.

What, then, of people who cling to that view even after the laws reflecting it have fallen? As the advocates of same-sex marriage and LGBT rights made clear in every jurisdiction where they achieved victory, holdouts who resisted the new dispensation on marriage and “discrimination” would soon discover that their religious conscience provided them no safe harbor from legal coercion. On the contrary, their reliance on religious faith, as the source of their morality in interacting with others, would only paint a target on them.

The justices who dissented in Obergefell saw this coming with admirable clarity. As Chief Justice John Roberts sarcastically observed, “the majority graciously suggest[ed] that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage” but omitted that the Constitution “guarantees . . . the freedom to exercise religion.” (Emphasis in original.) Justice Clarence Thomas warned that since the decision for same-sex marriage was made by the Court, rather than by representatives who might have fashioned compromise measures, we could expect “ruinous consequences for religious liberty.” And Justice Samuel Alito foresaw a future in which religious believers would see their “rights of conscience” disregarded, feeling free only to “whisper their thoughts in the recesses of their homes” but not in public, where they would be “labeled as bigots and treated as such by governments, employers, and schools.”

That future is arriving now, faster in some places than others. And under the shadow of Obergefell, it is just as difficult as Justice Thomas expected it would be to reach compromises in which religious liberty is honored. So a volume like Debating Religious Liberty and Discrimination is very welcome for the light it sheds on the difficulties we now face.

Clearly intended for the college classroom, the book is organized in point-counterpoint fashion with main statements and replies on each side, after a brief common introduction. John Corvino, a philosophy professor and gay rights advocate, holds that discrimination against gays and lesbians should generally be unlawful, even if the “discrimination” consists only of a baker’s or florist’s unwillingness to offer his services to aid the celebration of a same-sex wedding. Political theorist Ryan T. Anderson and legal philosopher Sherif Girgis, seasoned participants in the marriage debate as well, argue against the extension of discrimination law to the LGBT category of persons, and in favor of a robust understanding of conscience-based exemption from any such extension that may prevail.

The result is a very thorough airing of the controversies now raging over same-sex marriage, “SOGI” (sexual orientation and gender identity) discrimination laws, and countervailing claims of religious freedom and individual conscience. Along the way the authors shed light as well on similar conflicts, such as claims to exemption from the contraceptive-abortifacient mandate of the U.S. Department of Health and Human Services, and the right of healthcare professionals not to participate in abortions or in surgical or clinical work involving homosexuals or the transgendered. But the core set of problems in view is the “cultural clashes post-Obergefell,” as Anderson and Girgis put it.

Among the matters clarified in this book is why religious conscience and freedom are so threatened in this new environment. The reason is that all the rhetorical advantages seem to be on the side of those who condemn discrimination and devalue religious liberty, while those on the other side must patiently labor to persuade readers even to take their view seriously. As Anderson and Girgis remark in their final reply, “Corvino’s approach has been dialectical,” whereas they have “tried to build up general principles to address the range of the challenges in a unified way.”

Another way to put it is that Corvino’s technique is primarily sophistic, while Anderson and Girgis are systematically, painstakingly philosophical. Contemplating the prospect of teaching college students with this book, I can anticipate two things.

First, even if their views were largely unformed before encountering this book, most students will be persuaded by Corvino to treat conscientious dissent from the latest strictures against discrimination as presumptively the infliction of a great “dignitary harm” on gays and lesbians. But that is because Corvino’s contribution, so smoothly written and approachably affable, can be readily taken on board, without much need to think things through in a serious way, especially if readers regard strongly countercultural religious views as alien to their own experience.

But second, I would expect the very best students to be drawn to Anderson and Girgis, even if their own prejudices ran the other way beforehand. For many students, the Anderson-Girgis side will seem dense with complicated, even opaque, arguments. The two write clearly enough, but readers will need an attention span capable of holding a foundational thought in the mind while layer after layer of reasoning is laid atop it, until a whole structure has been built. Those who are up to the challenge of building a searchlight of principle from the ground up will have the entire field of controversy illuminated for them, even if they resist the conclusions that Anderson and Girgis draw.

Sophistry is a serious charge to lodge against Corvino, so here is one instance. Anderson and Girgis say a baker or florist who serves gay and lesbian customers in all other respects, but who declines to do custom work for a same-sex wedding, cannot be automatically convicted of discrimination on the basis of the rejected couple’s identity, but may reasonably be understood to have acted on a religiously informed view of what marriage is—and that view has nothing to do with others’ sexual orientation. The refusal can, in other words, be distinguished from the putatively analogous situation of a refusal to serve an interracial wedding. In the latter case, nothing could possibly animate the refusal but the race of one of the spouses; it is therefore an instance of invidious discrimination. The former, which is not grounded in unfair assumptions about the moral worth of others (either their status or their conduct), is not.

In comparing these cases, Corvino treats the status/conduct distinction as his adversaries’ own (though it is not), and then collapses it by a sleight of hand. “Although race may in some sense be an immutable non-behavioral characteristic,” Corvino writes, “racism is all about chosen behavior.” Racists “object to conduct” by the objects of their bigotry—blacks moving into their neighborhoods, blacks marrying whites. The act of discriminating is, as well, “most certainly a chosen behavior,” he observes. But on what basis do racists discriminate, and what is it about the behavior of the despised race that upsets them? In fact they always focus on the mere question of who countsa judgment about the doers, not about the essential meaning of the thing done. It turns out that, in insisting that racism is really as much about conduct as about status, Corvino is only changing the subject.

What do we mean by “discrimination” as a bad thing? How much of it can a society devoted to equality legislate against, and how much of it must be left alone by the law if we are to keep a free society? What costs are associated with the choices we make here, and what can be better achieved by market forces and social pressures? What is the good of religion, and what is its connection to personal integrity? In what ways are governments justly permitted to burden our pursuit of these goods? How should those close cases be decided in which it appears that one party (claiming a conscientious exemption) or the other (with a claim of having been discriminated against) is apparently going to suffer a harm of some kind?

Anderson and Girgis relentlessly examine these matters from every angle, presenting the strongest arguments for each view as they proceed. Thus they pay their readers the high compliment of taking seriously both their minds and their deepest concerns and commitments. The same cannot be said of Corvino. It is hard to tell whether he wishes to avoid the strongest elements of his interlocutors’ argument, or bypasses them from a failure of understanding.

As Anderson and Girgis observe, for instance, Corvino “repeatedly misunderstands” the case for religion as intrinsically valuable in people’s lives, treating it instead as wholly instrumental. He also treats the case for SOGI laws, and for their application to virtually every transaction, as a starting point for the debate that really needs no defense. In this he may simply be counting on most readers’ prejudice. Granted, for the average student in the average college classroom today, that may be enough. Precisely there is our largest stumbling block.

Reader Discussion

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on November 27, 2017 at 19:47:18 pm

Mr. Franck's excellent book review would be highly helpful to any college or law school prof looking for a balanced classroom text on the "discrimination" addressed by Obergefell.

But now that the matter of "discrimination" has been judicially "resolved" (ha ha) can there be any reasonable expectation of any serious classroom debates outside of Hillsdale College and its few academic kin? Would any law school ever revisit the matter? Of course not! To the academic Left who run our colleges and law schools that would be tantamount to re-arguing the merits of Taney's decision in Dredd Scott.

Conservatives lost the marriage/family debate in Obergefell just as they lost the abortion/family debate in Roe v. Wade in 1973 (and again in Casey in 1992) because conservatives falsely assumed on both matters that culture controls politics and that because the dominant cultural positions of each era were those of conservatives those beliefs would ultimately prevail.

Nowadays the reverse is true on most important and on all existential matters: Politics controls culture. Conservatives will continue to lose the culture war in court and in Congress until they accept that reality and organize and act accordingly.

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timothy
on November 27, 2017 at 21:01:06 pm

Here is a recent excellent analysis in First Things of my point re politics and conservative cultural causes:
https://www.firstthings.com/article/2017/12/culture-is-downstream-of-politics

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timothy
on November 28, 2017 at 12:04:42 pm

“The idea that reality is whatever we want it to be, is for C.S. Lewis, not just soul killing, but Life killing; it is the error beneath every other error.” – David Whalen, Hillsdale College.

One can know through both Faith and The Law of Noncontradiction, that Marriage, in essence cannot be and not be, existing in relationship as husband and wife, simultaneously, just as one can know through both Faith and reason that a son or daughter of a human person cannot both be and not be a human person, simultaneously.

The idea that Private Morality and Public Morality can serve in opposition to one another, and are not complementary, has led to grievous errors in both Faith and reason. One cannot deny the Sanctity of the marital act without denying that God Is The Author of Love, of Life, and of Marriage; when we render onto Caesar, what belongs to God, anything can become permissible, including the denial of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be, what God intended.

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Nancy D.
on November 28, 2017 at 13:43:39 pm

Anderson and Girgis say a baker or florist who serves gay and lesbian customers in all other respects, but who declines to do custom work for a same-sex wedding, cannot be automatically convicted of discrimination on the basis of the rejected couple’s identity, but may reasonably be understood to have acted on a religiously informed view of what marriage is—and that view has nothing to do with others’ sexual orientation. The refusal can, in other words, be distinguished from the putatively analogous situation of a refusal to serve an interracial wedding. In the latter case, nothing could possibly animate the refusal but the race of one of the spouses….

When a baker or florist is willing to serve a male/female couple, but not a male/male couple, can we likewise conclude that nothing could possibly animate the refusal but the sex of one of the spouses?

[Discrimination against interracial couples] it is therefore an instance of invidious discrimination. [Discrimination against gay couples], which is not grounded in unfair assumptions about the moral worth of others (either their status or their conduct), is not.

Baker Mary, a member of the Christian Identity Movement with a sincere religious belief that what marriage is is a vehicle for producing the next generation of a given race, regards “interracial marriage” is antithetical to marriage’s purpose. She’s happy to provide wedding cakes to white couples and black couples, but not to interracial couples. Should the law defend her right to discriminate on the basis of her religious views?

Florist Joe’s sincere religious beliefs cause him to want to avoid interacting with gays at all, whether related to marriage or not. Should Joe’s faith receive less protection than a baker or florist who has laxer standards?

In short, I surmise that Anderson and Girgis have strong views about what marriage is, and argue that the distinctions that THEY value should be accorded legal deference. But it is unclear (based on this essay) why their religiously derived distinction should receive deference, but not other people’s.

I prefer that government avoid discriminating on the basis of religion. And generally that means, per Employment Division v. Smith, applying the law uniformly.

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nobody.really
on November 28, 2017 at 13:47:39 pm

Justice Samuel Alito foresaw a future in which religious believers would see their “rights of conscience” disregarded, feeling free only to “whisper their thoughts in the recesses of their homes” but not in public, where they would be “labeled as bigots and treated as such by governments, employers, and schools.”
* * *
How much [undue discrimination] can a society devoted to equality legislate against, and how much of it must be left alone by the law if we are to keep a free society? What costs are associated with the choices we make here, and what can be better achieved by market forces and social pressures?

Market forces and social pressures—you mean, the forces and pressures that arise from private parties labeling people as bigots and treating them as such?

Alito’s remarks are hardly prescient; he was simply observing the long history of public condemnation of homosexuals, and projecting it forward. Of all the people to raise objections to this dynamic now, religious fundamentalists must surely be the least sympathetic.

Free speech and free exercise do not shield people from being called bigot any more than they shield people from being called faggot. Welcome to freedom. Practice your faith—and bear the judgement of others as they practice their's.

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nobody.really
on November 28, 2017 at 13:49:45 pm

That said….

In contrast with condemnation by private actors, government condemnation arguably warrants a narrower range. In particular, I’m not sure how to reconcile free exercise of religion—which necessarily entails freedom to condemn—with “dignity rights,” if those rights are understood to entail shielding people from having to confront other people’s condemnation.

If free speech/free exercise defends the rights of the Westboro Baptist Church to picket the funeral of fallen soldiers-- holding signs saying “God Hates Fags” and “Thank God for Dead Soldiers”--it strains credulity to conclude that permitting a baker to decline to serve a gay couple is going too far! Let’s get some perspective here.

We struggle to know where to draw the line between individual conscience and social obligation. States tend to draw it at the bounds of employment, housing, and retail commerce—which envelopes bakers and florists. I suggest a different boundary that would excuse most retail establishments, and conceptually even some employers, landlords, and public servants: the Market Power Affirmative Defense.

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nobody.really
on November 28, 2017 at 14:22:10 pm

As I said in yesterday's comment, "the matter of 'discrimination' has been judicially resolved. (haha.)"

Outrageous arrogance is always best in dealing with the common folk. The Peloponnesian War, Hitler, Stalin and Roe v. Wade showed us that.

In answer to Chief Justice Roberts' question, "Who do we think we are?" Justice Kennedy and his Obergefell co-conspirators would answer, "Who do you think you are to deny the divine right and wisdom of the constitution's kings, to shirk a ruler's duty, shun the propriety of his hubris, and give deference, instead, to a mere two thousand years of history, custom, culture, tradition and law?"

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timothy
on November 28, 2017 at 16:10:26 pm

Matt Franck’s heavily partisan review of my new point/counterpoint book—in which he dismisses my contribution as sophistry—is both unsurprising and disappointing. Unsurprising, because he gave me similarly uncharitable treatment when he reviewed my previous point/counterpoint book, with Maggie Gallagher. Disappointing, because in the current book (as in that prior one) my counterpoint authors and I aspire to rise above the partisan fray and promote a more thoughtful dialogue about these challenging issues. If only Franck had approached the book in that spirit.

Franck acknowledges that sophistry is a serious charge, especially insofar as he intimates that it’s deliberate and that I am either intellectually dishonest or dull-witted: “It is hard to tell whether [Corvino] wishes to avoid the strongest elements of his interlocutors’ argument, or bypasses them from a failure of understanding.” He therefore aims to back up the charge with an example—namely, my argument that the status/conduct distinction does not help in distinguishing refusals to serve interracial weddings from refusals to serve same-sex weddings, because both refusals refer to conduct. Franck writes,

“Anderson and Girgis say a baker or florist who serves gay and lesbian customers in all other respects, but who declines to do custom work for a same-sex wedding, cannot be automatically convicted of discrimination on the basis of the rejected couple’s identity, but may reasonably be understood to have acted on a religiously informed view of what marriage is—and that view has nothing to do with others’ sexual orientation. The refusal can, in other words, be distinguished from the putatively analogous situation of a refusal to serve an interracial wedding. In the latter case, nothing could possibly animate the refusal but the race of one of the spouses; it is therefore an instance of invidious discrimination. The former, which is not grounded in unfair assumptions about the moral worth of others (either their status or their conduct), is not.”

Put aside the fact that Anderson and Girgis’s defense doesn’t merely apply to bakers who do *custom* work. Franck’s failure to grasp my argument is apparent even in his wording of his own position, where he writes that, in the interracial marriage case, “nothing could possibly animate the refusal but the race of one of the spouses.”

Actually, no. Objections to INTERracial marriage never refer to the race of only “one of the spouses,” but always to both taken together, in relationship. In short, they are about the partners’ conduct.

Now, one could argue (as Anderson and Girgis do) that objections to such conduct are really, at bottom, objections to certain persons—that is, to identity. As Franck puts it, racists “always focus on the mere question of who counts—a judgment about the doers, not about the essential meaning of the thing done.”

As I argue in the book, however, the history of racial discrimination frequently contradicts or complicates this point. When for decades Bob Jones University admitted students of all races but forbade interracial dating, they did so because they read Scripture to forbid intermarriage, not because they believed that their black students—whom they admitted voluntarily, without court order—counted less qua persons. (Whether their objection has to do with the “essential meaning” of marriage or some other natural-law argument is beside the point; it was a sincerely held moral and religious belief, at least for some who worked there.)

As I also argue in the book, when Louisiana Justice of the Peace Keith Bardwell refused to preside at interracial weddings (in 2009), he explicitly and no doubt sincerely denied that he had any objections to black people themselves; he even cited his “piles and piles of black friends.” Would Franck therefore say that he did not discriminate “on the basis of the rejected couple’s identity, but may reasonably be understood to have acted on a religiously informed view of what marriage is”—or at least, of what the proper norms for marriage are? And if so, would he exempt Bardwell from having to perform such weddings in his public role? Would he exempt him from relevant antidiscrimination laws?

Now of course, one can dig deeper, and return to a debate—which I’ve had for many years with Anderson and Girgis, and which was settled for legal purposes with the Obergefell decision—about the nature and norms of marriage. One can also look more carefully at the social context in which these refusals happen, and at hard questions about where to draw the line between conduct that directly expresses one’s identity as a bearer of a legally protected characteristic (such as religion or sexual orientation) and conduct that relates to that characteristic more loosely. At one point in the book, Anderson and Girgis give the example of being Jewish and celebrating Netanyahu’s policies, which strike me as much more distantly related than being Jewish and wearing a yarmulke, or being gay and having a same-sex wedding.

There are some hard questions here, to be sure. I acknowledge as much throughout the book. Anderson, Girgis, and I believe that we can better answer those questions by presenting “the strongest arguments for each view as [we] proceed” and paying “readers the high compliment of taking seriously both their minds and their deepest concerns and commitments,” as Franck nicely puts it.

It is a shame that Franck’s own review falls so far short of that worthy ideal.

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John Corvino
on November 28, 2017 at 19:22:36 pm

Sorry, I don't buy it. Have you no dignity, at long last, Mr. Corvino, to spare us at least your crocodile tears? I don't accept the moral propriety of destructive self-seekers taking hobnail boots to a priceless cultural institution and then complaining (as you do) about "uncharitable treatment" at the hands of their religious victims.

You say:
"Now of course, one can dig deeper, and return to a debate—which... was settled for legal purposes with the Obergefell decision—about the nature and norms of marriage."

That's actually offensive!

Soi-disant irenic and intellectual motivations won't wash. Proclaiming the desire to "return to a debate," indeed, writing a pointless academic tome of hair-splitting rationalizations neither morally justifies nor rationally explains the ruthless cultural destruction that "settled (the marriage debate) for legal purposes..." and that will follow in its wake. Nor does the Court's politicized decision in Obergefell give the victors the moral grounds of true constitutional warrant any more than Taney's hollow rhetoric legitimized slavery or Blackmun's prenatal infanticide.

It's all about power, getting power and then exploiting it against those whom they would destroy. I know that; you know that. Don't expect the respect of the losers; your ignoble cause and its destructive perpetrators are not worthy of it.

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timothy
on November 28, 2017 at 20:07:33 pm

It’s all about power, getting power and then exploiting it against those whom they would destroy.

Well, this certainly explains why you would eschew any pretense of argument. How sporting of you to acknowledge "That’s actually offensive!" as a way of congratulating Corvino for successfully wielding his power in a manner that hurts you. But do you have any theories why Anderson and Girgis would participate in this charade of reasoned discourse? Shall we conclude that they're just shilling to sell books, which is their effort at securing power?

Alternatively we could resolve that, regardless of whatever we may think of other people's motives and behavior, we will pursue reasoned discourse on this blog. We need not stoop to the bad behavior we see (or that we image we see) in others.

For what it's worth, I find Corvino's arguments reasonably persuasive. I expect you'll find my opinion not worth very much. But perhaps I'm simply projecting, based on the value I derived from reading your opinion. So, instead of offering unadorned opinions, what if we offered arguments?

It's an option, anyway....

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nobody.really
on November 30, 2017 at 18:31:04 pm

I look forward to reading this, but my experience with "What Is Marriage?" suggests that Anderson and Girgis don't understand their own arguments (and Franck doesn't either) so I'm skeptical that the fault is with Corvino.

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Gregory Thomas
on November 30, 2017 at 18:33:47 pm

Timothy, your comment is full of outrage but low on content. You've vented quite a bit but given us no reason to accept your accusations as true. In Corvino's comment, he named arguments and responded to them. You did neither.

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Gregory Thomas
on December 05, 2017 at 19:58:41 pm

Under normal circumstances and dealing with thoughtful men who seek common, constructive ends, "reason" is essential. But we are well beyond that point in confronting the enemies of Christianity, tradition and American culture. The matter is existential now, not one of hair-splitting debate that Corvino would profess to solicit. Scorn, not debate, contempt, not respect, are warranted. Corvino's is invitation to a fool's party, an academic's game. "Reason" has never played a role; justice has never been a goal; rather cultural coup de etat has been the means and power the ends of the Obergefell conspirators.

Dr. Johnson well-expressed the necessity of declining offers of "reason" by reason's enemies:

“When a man voluntarily engages in an important controversy, he is to do all he can to lessen his antagonist, because authority from personal respect has much weight with most people, and often more than reasoning’”

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timothy

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