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The Confines of the New Moral Consensus

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.

Wrote Jefferson:

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.

Reader Discussion

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on April 13, 2015 at 10:31:05 am

" 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."

Indeed, it will and it DOES!

The question is whether such a consensus may be attained absent the imposition of some rather draconian restrictions on association. speech AND belief.

This promises a rather dreary sameness to our lives as we embark upon the expansion of our new *state* religion.
Oh well, all is not lost; remember, even the Puritans were prone to promiscuity and knew the measure of strong spirits. That turned out pretty well, didn't it?

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gabe
on April 13, 2015 at 11:46:58 am

Excellent post. I would make only the following qualification. There are very few "protected classes" in American law, the Wikipedia article you linked to notwithstanding. The disabled and people over 40, perhaps (although the latter might not be so in some states, like New York, with broader prohibitions on age discrimination). Rather, there are prohibited criteria. We all have a race, a national origin, a sex, etc., so to think of "men" or "women" or "blacks" or "whites" as "protected classes" seems a bit silly. If sex discrimination is prohibited, what makes the class of men or women "protected"?

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Michael R.
on April 13, 2015 at 11:51:49 am

"To borrow another phrase of Jefferson’s, the idea of a community of 300 million is absurd and unnatural." But wasn't this the logic of the anti-Federalist?

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Ken Masugi
on April 13, 2015 at 14:49:45 pm

Isn't it interesting, how homosexuality and homosexual "marriage" are just about the top topics of today's current events? I find that curious and telling. A real statement on the present day society.

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GSR
on April 13, 2015 at 15:52:52 pm

Yes, and here is their new tactic / theory for accomplishing their objectives: Conversation Theory;

http://www.nationalreview.com/phi-beta-cons/416853/conversation-theory-bernie-reeves

How innocuous sounding!!!

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gabe
on April 13, 2015 at 16:01:50 pm

More generally the question is: What forms the American civil constitution? By civil constitution I mean the values we hold dear that are part of the foundation of the written Constitution. We believe in a trial by a jury of peers. We believe that all men are created equal and are endowed by God with unalienable rights. We believe in the liberal democratic republic. Etc.

The Congresses of the 1770's were able to look to previous written agreements such as the Magna Carta and the English Bill of Rights to determine whether the British government was operating according to its civil constitution. But what do we look to? Isn't that the question?

The written US Constitution (capital 'C') is based on the values of the American civil constitution (lower case 'c'), but the civil constitution is vague by nature. Some rights are inherent and natural, such as desiring a happier circumstance or the ability to make moral choices, while other rights are assumed (constructed) in a state of nature, such as the right to own property or to form a government. Inherent rights can be enumerated. Because assumed rights can be constructed and deconstructed as makes us most happy, a fixed and complete system of rights cannot be written.

If you were to write out in detail what goes into our civil constitution, what would you put in it? What would be the criteria for including a right in such a document?

Let's use an established theoretical model based on historical precedent as a helpful framework for solving this problem. As a theoretical model, suppose that you were asked today by your state to write a petition for a redress of grievances to address the many issues of today's federal government. As Congress did in 1774, you would start with a bill of rights, you would describe the violations of those rights, you would describe the harms caused by those violations, and you would discuss your sincere desire to resolve the various violations of those rights. As in 1774 you would address the petition to the sovereign of America, "To the Sovereign Citizens of the United States of America ...," to redress the issues directly or through the proper agency of the citizens' government. Implied in the petition would be the understanding that if the government did not address the grievance properly, your state would be free to declare independence on the grounds of what amounts to a breach of contract: As happened in 1776, the sovereign has abdicated power and given up on the prime charter, therefore the bands of affection are severed and your state is now independent.

What would be in that petition; what rights would be in the bill?

What would be the proper grounds for declaring a breach that gave cause for necessary independence? Your answer, I would think, underlies at least a part of the civil constitution.

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Scott Amorian
on April 13, 2015 at 20:47:48 pm

Wow! Very sober and thought-provoking analysis!

As a traditionalist when it comes to a formal definition of marriage, I've struggled to find acceptable language to engage in this topic. I respect the fact that others have a different framework than me through which they integrate the varied sexual impulses humans exhibit with each person's sense of identity. I aggressively resist the impulse to enlist "Caesar" to ratify and impose my own beliefs on my neighbor. I agree that the government should not discriminate nor, by extension, should publically held businesses.

But I have a hard time with government interfering with an individual's (or privately held business's) freedom of association or freedom of conscious. A person's faith is as integrated with one's sense of identity as is a person's sexual orientation. Furthermore, most people of faith would attest that their religious formulations are not entirely voluntary. They simply see them as the version of reality in which they find themselves—just as most in the gay community would attest about their own sense of love, desire, and belonging.

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Keith
on April 15, 2015 at 04:27:01 am

[T]he idea of businesses having a presumptive right to decide with whom they will do business seems strange to most Americans.

Maybe, maybe not.Suffice that many, many Americans — certainly many tens of millions — still believe in and long for the sort of liberty and tolerance of diversity on which our Nation was founded. One-size-fits-all government-enforced morality in a nation of over 300 million is indistinguishable from theocracy.

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Glen
on April 16, 2015 at 00:31:35 am

Nice piece, Richard!

Leaving aside the difficult question of what religion is and whether it requires faith, you raise a tough question about the scope of government and the change in morality prompted by the 1964 CRA. Two questions, one empirical: Is it the case that Americans think that all discrimination is illegal and immoral, or do they assume that the protected classes protect more groups than are actually protected? Second, the TJ quotation about limited government and restraining men from harming one another is a tough one, because harm (and punishment) are always moralized. That is, imprisoning someone for ten years for stealing $10 in Nevada rests upon a moral claim concerning the extent of the harm caused by theft, in comparison to other crimes. So, I wonder whether we have to rethink the distinction between big and small government, not only in the way you suggest--asking, What new things are criminalized by "big" government?--but also how much we punish the behavior we criminalize. This second question is a question about TJ. I'll have to look up, or perhaps you know, his thoughts on the purpose and scope of laws about criminal liability.

By the way: Is there any discrimination that is simply legally unacceptable, and therefore reasonably captured by the notion of a protected class? (This is perhaps a question that can be answered by pointing to the specific history that America has with race, but it searches for a principle--Why protect one group but not another group?)

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Chris

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.