What the Debate on Religious Freedom Really Means
What religious freedom says about the meaning of liberty.
A florist refuses to provide arrangements for a gay wedding. An adoption agency turns away homosexual couples. A doctor declines to perform an abortion. A small corporation opposes covering contraceptive care for its employees. These are some of the stories that animate the ongoing debate over the meaning and limits of religious freedom. In this paper I categorize criticism of religious freedom into two groups and explore how the debate about religious freedom surfaces competing narratives about the purpose of individual choice. I contend that Christianity presents a positive conception of liberty that views individual choice as empowerment to do good rather than a supreme end in itself.
Most people who raise doubts about religious freedom fall into two groups. The first perceives religious freedom to be backwards and intrusive. It believes that those who cling on to religious freedoms wield a license to exclude and discriminate innocent bystanders who have done nothing wrong—except that they so happen to live in a way that offends religious people. I present two responses to these opinions.
First, religious freedom is not merely an obsolete tradition of the past; it is a right enshrined in the opening line of the 1st Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Free Exercise Clause allows individuals to profess a religion and to publicly practice it. This clause holds important symbolic and institutional value in Court decisions. In EEOC v. Abercrombie (2014), the Supreme Court held that it was unconstitutional for the clothing retailer Abercrombie to refuse to hire Samantha Elauf, a Muslim woman who wore a headscarf which violated the employee dress code. Importantly, the Court stated that Title VII of the Civil Rights Act of 1964 “gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.”
This favorable treatment to religious groups is not meant to be discriminatory toward non-religious groups per se. Rather, favorable treatment simply means fair accommodation towards the individual who wishes to freely exercise his or her faith, at minimum expense towards the one making the accommodation. That same year, the Supreme Court ruled in favor of religious freedom for the employer. In Burwell v. Hobby Lobby (2014), the Court held that it was unconstitutional for Obamacare to force employers to provide their employees with access to contraceptives insofar as doing so would violate the employer’s sincerely held religious belief that life begins at conception. Citing the Religious Freedom Restoration Act, the Court stated that freedom of religion entails freedom to exercise religion, to “establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” The true weight of Abercrombie and Hobby Lobby lies in the Court’s interpretation that recognizing religious freedom of the individual entails respecting his free exercise of that religious freedom in every aspect of his life. Religious freedom must be able to walk freely in the public square if it is to be religious freedom at all.
Second, the argument that religious freedom is a tool used to exclude and discriminate is non-unique to religious freedom. Rather, the criticism belies a deeper animosity towards religion in general and a tendency to label religion as exclusionary and discriminatory. In other words, it presupposes that a religion’s worth is contingent upon how inclusionary it is. The sentiment that acceptable religion would never exclude beliefs and behaviors is at best misguided. If that were truly the litmus test of the ideal religion, no religion in current practice would pass; in fact, from the assertion that the ideal religion does not make normative (and therefore exclusionary) truth-claims about the word, it must follow that the best “religion” would be no religion at all. But religions do exist, and each offers a unique worldview. Christianity offers quite a narrow worldview: namely, that Jesus Christ is the Son of God and the Savior of the world, and that the Bible is infallible and the word of God. Because the Bible says that God made marriage between one man and one woman (Genesis 2:24) and formed our inward parts in our mother’s womb (Psalm 139: 13), Christians do hold an exclusionary view of the nature of marriage and the life of a human fetus. Such a worldview is not a means to condemn others but rather a sacrosanct end in and of itself. This distinction is crucial: Christians are called to love and accept all people, but to discern and not be complicit in certain actions that are contrary to the standards of their faith.
The critics of the first group seem to be the ones leading the assault on religious freedom. To many a staunch “religious freedom” fighter, these are the irreligious who just “don’t understand” or “don’t appreciate” how important it is to be able to practice one’s religion. However, unlike the first group, the second group of critics is sympathetic towards—and even respectful of—religious freedom, but nonetheless believes that religious freedom should not come at the expense of individual choice. I think that more so than the first, the second group presents a formidable challenge to religious freedom in the public square. Its adherents are softer spoken, but they are the ones fueling the ideological battle against religious freedom.
While the second group concedes that religious freedom has strong roots in American history and institutions, it points out that all rights have limits, even the ones we perceive as sacrosanct and categorical. Free speech is a classic example: our right to free speech does not allow us to incite panic by yelling “fire!” in a crowded theater; we cannot spew out hate speech; we cannot distribute child pornography; we cannot defame another person. The basic idea is that our rights are finite insofar as other people may be adversely affected by the exercising of our rights. The “harm principle,” articulated by English philosopher John Stuart Mill, states that individual actions can only be limited for the purpose of preventing harms to other people. This libertarian concept is intuitively appealing because it both recognizes one’s rights but also provides the justification to curtail them if and only if they bring unwarranted harm toward others. The second group’s view is a careful weighing of rights, a reasonable requirement.
The harm principle of balancing rights with harms is an expression of the libertarian view of liberty. This view is negative: freedom from institutions, government, social control, obligations, standards, etc. Not allowing anything or anyone to stop you from doing what you want—that is freedom. Freedom is unhindered individual choice. Everything is permissible so long as it passes the harm principle. In this manner, individual choice is supreme; it is the highest prize and chief end. Individual agency to act and set one’s own standards is the epitome of liberty.
By way of contrast, the Christian view of liberty is positive—freedom to be and to do. Freedom is not about resistance of limits but empowerment within existing borders. The Christian view of freedom is different from self-determining freedom, which is the freedom to do whatever you want. Ironically, the Christian worldview emphasizes positive freedom even as the institution of Christianity as a religion is restrictive. This suggests the notion that it is from restrictions we are empowered to do good. The paradox is simple and yet grand all at once: Christians are constrained by biblical standards on marriage and the sanctity of life, yet it is precisely in those boundaries that they find liberty.
The libertarian notion of negative freedom offers the insight that critics of religious freedom want freedom from a restrictive system of morality. The harm principle is satisfied if no substantial harm results from individual choices. Maximizing choices and minimizing harm, however, do not satisfy religious freedom. It concerns itself with what it truly means to be free.
The conceptions of liberty I discussed in this paper do not end the debate on religious freedom. If anything, they should expose the question to the broader issues underlying both sides of the aisle. I hope that this paper reveals why the issue appears to be so intractable, and why both sides speak from a conviction that rests on little common ground. I urge defenders of religious freedom to focus on the second group of critics I identified in order to grapple with the larger assumptions of negative liberty and the supremacy of choice. As our religious freedom is in the public square, so a winsome understanding of the real debate should be too.
Andrew Shi is a junior Government major. He enjoys blogging for the Cornell Daily Sun and leading a Cru community group. He can be reached at as2589@ cornell.edu.Tags: freedom, justice, law, love, politics, religion