The oldest emergency proclamation dates to the Carter Administration, 40 years ago. Two generations of crisis are enough.
The bitter disputes sparked by Indiana’s version of the “Religious Freedom Restoration Act,” and the controversies that provoked the act, are the latest episode in our ongoing culture war. Its sources are twofold: the moral clash between what we call the “Left” and the “Right,” and the increasing scope of government.
Few, if any, Americans would say that no one has the right to believe that marriage is rightly defined as a union of a male and a female, just as few would say that no one has the right to say it is the union of any two consenting adults, of whatever sex, who are not already married or closely related.
The question is whether, or to what degree, people have the right to act upon those convictions. In particular, the question is whether people who engage in business have the right to refuse to participate in actions they regard as immoral. We should remember that the Indiana law was designed to allow businesses the right to refuse to service not to particular people per se, but rather to particular activities to which they have conscientious objections. In recent years, bakers, photographers, and others have been forced to work at gay wedding ceremonies, even though they believe that such ceremonies are sinful, or, at the least, not marriages at all. From their point of view to participate in such events is to participate in a lie, or even to partake in sin.
On the other side, those protesting the law, and a similar bill in Arkansas, hold that the sole reason for such laws is to allow Americans not merely to make invidious criticisms of homosexuality, but also to act upon such bigoted judgments. Hence they consider such laws immoral and probably unconstitutional.
For most of American history, there would be no clash here, for businesses were understood to have a presumptive right to choose with whom they would do business, and, at the same time, there was an overwhelming consensus about the definition of marriage. Nowadays, neither is true.
By its very nature, community implies the existence of an underlying agreement. But from whence might that code come? Classically, it was understood as something we may call “religious,” keeping in mind that “religion” is not a concept in all cultures—precisely because what we call “religion” is not always, perhaps not usually, understood to be separable from the rest of a society’s legal and moral code. Recall that Socrates’ crime was failing to honor the gods of the city. And the Romans expelled the Jews from their homeland because the Jewish God is, as the Bible proclaims, “a jealous god.” Unlike other peoples the Romans conquered, the Jews refused to merge their religion with the Roman religion.
Thomas Jefferson understood that the effort to separate government from religion is itself a religious idea, of a sort. His bill was not for “religious liberty” simply. It was for “establishing religious freedom.” Religious freedom is itself a form of “establishment.” Moreover, that bill proclaims “that Almighty God hath created the mind free,” and, therefore, that freedom of conscience is a good. If belief in God is not religious, what is? And if deriving law from that belief is not a form of establishment, nothing is.
More broadly, either morality is based upon reason or it is based upon faith. If the latter, it is a religious thing, at least in the classic American definition of “religion.” One could argue that it is an essential part of any internally consistent definition of the term “religion,” for it applies to all “varieties of religious experience,” to use a phrase from William James. In this sense, religion is the beliefs we hold without proof and the actions derived from those beliefs. (But it is also true that to think of “religion” as a separate part of life is, largely, a legacy of Christianity’s “render unto Caesar.”)
Jefferson sometimes tried to escape this problem by holding that his moral ideas were not particular. Instead, he held them to be the common sense of the subject. He believed that human beings have, by nature, a “moral sense” which provided a non-religious foundation for America’s common morality.
What evidence did he have that morality was based upon the common sense of mankind and did not, ultimately, rest upon tenets of faith concerning God, man, and nature?
He asserted that all the world’s major religions shared a basic, common moral code. Hence there must be some things that men naturally hold to be right and others they naturally hold to be wrong. That being the case, good government might enforce that code without provoking a return to the religious wars of the 17th century.
The interests of society require the observation of those moral precepts only in which all religions agree, (for all forbid us to murder, steal, plunder, or bear false witness,) and that we should not intermeddle with the particular dogmas in which all religions differ, and which are totally unconnected with morality.
This deep and yet limited moral consensus that he said all religions held in common was, he believed, all that American society needed to function. (Whether polytheism or, for that matter, pantheism, would fit under this is an interesting question: On the one hand, it did not matter if “my neighbour” believed in zero or 20 gods. On the other, Jefferson said liberty would only be secure if men believed believed that their liberties were the “gift of God.” And it might be that consensus morality presumes that God created an orderly universe, a conviction that may appear reasonable but is also ultimately unprovable. Hence it is a matter of faith, connected with the faith that God made the mind free.)
Jefferson’s political vision was congruent with that limited consensus. The type of government he supported complemented his “common sense” morality:
A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.
Given how limited the religious/moral consensus of a large, diverse republic was likely to be, federal law would have a very limited reach, leaving people “free to regulate their own pursuits” in most cases.
Moreover, in that age, indeed in most of American history, we were understood to have a general right freely to associate with whomever we chose. Until relatively recently, most businesses (except for a narrowly defined class of “public accommodations”—chiefly restaurants, hotels, and transportation in the old definition of the term) used to be free to accept or to refuse service for whatever reasons they chose. That left Americans free to create communities that reflected the diverse ideas of right and wrong, or good and bad, that went beyond the narrow, American moral consensus Jefferson took as a given.
To combat the wrong of Jim Crow laws, that freedom was limited, and it became illegal for any corporation in America to choose not to do business with certain “protected classes.” Such a limitation was understood as a necessary, if risky, step to combat the evil of racial discrimination. But it only covered “protected classes.” In modern America it is, in theory, perfectly legal to refuse service to redheads but not to refuse to serve African Americans. (Homosexuals are a protected class in some states, but not in every state. In Indiana they are not a protected class.) Before the civil rights revolution, there were no such “protected classes”; businesses were understood to have the same rights as all other non-governmental organizations to refuse service at will. (As I’ve discussed on earlier occasions, remember that Tocqueville conceived of businesses as part of civil society.)
Yet the change was a major one, for it seems to have changed our political morality. Laws are moral teachers, and Americans have become so accustomed to this restriction on our freedom of association that we have grown to think it the norm. Fifty years after the Civil Rights Act, the idea of businesses having a presumptive right to decide with whom they will do business seems strange to most Americans. The changed law has, over time, changed the moral opinion of most Americans. The 1964 Act listed race, color, religion, national origin, and sex. Nowadays, Americans think that discrimination of any sort is presumptively illegal unless proven otherwise. In the current case we seem to have a clash between Americans in two protected categories—sexual orientation (a newer class which is not included in every state’s laws) and religion.
The new understanding of liberty to pursue our business as we choose is a far cry from liberty as Jefferson understood it. How well can that new moral consensus be reconciled with the freedom of association, or with our freedom more generally? Similarly, it is also worth asking if the rise of federal antidiscrimination law, and of the federal regulatory/administrative state more broadly, might demand a deeper moral consensus than the one Jefferson described.
The more government does, and the more aspects of our lives it touches, the more moral ideas and actions are implicated in federal law. The bigger the government, the smaller the civil society, and therefore the less cultural diversity we can have in our daily lives. Whether there can be a deep and broad consensus today is an open question, in the large, diverse republic we are talking about–and ours now contains over 300 million people. To borrow another phrase of Jefferson’s, the idea of a community of 300 million is absurd and unnatural.
What we really need to ask, then, is whether our liberty to go about our business as we choose can be reconciled with the modern state. Are we to be “free” to do as we wish only inside our own homes, and, perhaps (perhaps) inside of actual churches, synagogues, or mosques? If that’s the case, we cease to be free to live as we choose, at least if we accept that human beings are social creatures by nature. If we no longer have a moral consensus, even of the limited sort Jefferson pondered, that also means we will face even greater difficulties in the years ahead.