In my previous two columns on the topic, I surveyed the way religious freedom has been defined by the courts, especially the Supreme Court. In the first part, I told readers that “there is little, if anything, in the period immediately surrounding the writing and ratification of the Constitution that provides guidance as to how competing interests” involved in cases such as that of Barronelle Stutzman should be adjudicated. In the second part, I said, “There’s scant evidence that, legally speaking, religious freedom, as we define that expression, is the ‘first freedom.’”
As the author of the Epistle to the Hebrews might put it, the main point of what I have said is this: There is little precedent, historic or legal, for what we are asking for when we say “religious freedom”—an individual right to not comply with generally applicable laws on the basis of your personal religious scruples.
Realistically, the best we can hope for is for the overturning of Employment Division v. Smith and the restoration of what is known as the “Sherbert Test,” in which a “substantial burden” on a person’s free exercise of his or her religion could only be justified by a “compelling governmental interest,” implemented in a “narrowly tailored” fashion. (Later, “narrowly tailored” was changed to “least restrictive means.”)
In this best-of-all-probable-worlds, cases like those of Barronelle Stutzman would be decided on a case-by-case basis with no guarantee that people like Mrs. Stutzman would prevail, even in the Supreme Court of conservative activists’ dreams. While this court might sympathize with her plight, they would, in all likelihood, struggle to articulate a rationale that wouldn’t turn every American into a law unto himself.
If I’m correct, where does that leave us? In state and local legislatures, looking to cut deals that protect religious freedom as much as is politically feasible.
One example of such a deal is the so-called “Utah Compromise.” Like most compromises, it left people on both sides of the LGBT rights/religious freedom debate unsatisfied and unhappy. The liberal think tank Think Progress called it a “dangerous LGBT Trojan Horse” and denounced its “rather unprecedented ‘religious liberty’ carveouts.” (Please note that the scare quotes were theirs, not mine.)
Much closer to home, the Colson Center is on the record as opposing these kinds of compromises on theological grounds.
So what follows definitely isn’t the opinion of the Colson Center—but, if you would so kind as to indulge me, I want to make a case for considering these kinds of compromises.
First, as Otto von Bismarck famously said, “Politics is the art of the possible, the attainable—the art of the next best.” Even authoritarian regimes like Putin’s Russia, or Bismarck’s Prussia/Germany for that matter, operate under some constraints, even if only out of fear of revolt. All of this, of course, applies a fortiori to democracies such has ours.
What’s more, what’s possible and/or attainable isn’t fixed. Political scientists and pundits speak of the “Overton Window,” which is defined as “the range of ideas the public will accept.” What is acceptable changes, or “shifts,” as ideas go from “unthinkable” to “popular” and, finally become “policy.” Policy, of course, means politics. As David French explained at National Review, “The window shifts to include different policy options not when ideas change among politicians, but when ideas change in the society that elects them.”
Unsettling case in point: same-sex marriage. As Stephanie Slade of Reason Magazine reminded the folks at the Jesuit Journal America, we went from President Obama opposing same-sex marriage, to the Supreme Court overturning the Defense of Marriage Act, to that same court making same-sex marriage the law of the land, in only three years. The head-snapping speed of this change was made possible, in significant part, by a Warp 7 shift in the Overton Window on the subject.
That raises an obvious (to me, at least) question: Where is the Window when it comes to religious freedom? If a recent survey by the Public Religion Research Institute (PRRI) is to be believed, the answer is: not where we would like. (While the PRRI is far from a disinterested observer in these kinds of debates, I haven’t seen much, if anything, that casts serious doubt on their methodology.)
Sixty-one percent of those surveyed oppose “allowing a small business owner in their state to refuse to provide products or services to gay or lesbian people, if doing so violates their religious beliefs.” As if to underscore the shift in the Overton Window on the subject, the only group where a majority favored such a refusal was white evangelicals at 50 percent. (Even a majority of Mormons were opposed.)
What the numbers tell us is that we are a minority, and while it’s true that majority opinion doesn’t determine what’s morally right, it does go a long way toward determining what is politically possible and attainable. To put it bluntly, we are playing a weak political hand, one that is unlikely to get stronger anytime soon, if ever, especially given the outsized role played by the media and pop culture in shaping American opinion on the subject. An appreciation of this weakness is part of the impetus behind Rod Dreher’s “Benedict Option.”
Speaking of the Benedict Option, the second thing that these compromises have going for them is that they focus on what should be our primary concern: preserving our institutions. My grandmother, who (like every Puerto Rican woman of her generation) was an aphorism-spouting machine, used to remind us that “el que much abarca, poco aprieta”—literally, “he who covers much, grasps little.” In other words, don’t try to do too much lest you wind up getting nothing done at all.
If I’m right about the state of the law and politics concerning religious freedom, then we may face the difficult decision of what to prioritize: protecting our institutions or protecting what folks have taken to calling “freedom of conscience.” I know that’s not easy to read. It’s not exactly easy to write, either.
This kind of prioritizing is what Mormon leaders did in Utah. (In. Utah.) Understanding what was going on in their own backyard better than people thousands of miles away, they decided to strike a bargain that protected the institutions—churches, schools, universities, etc.—that have served their people well for nearly two centuries.
They certainly didn’t make the deal because they believe in the sanctity of traditional marriage any less than we do. (The data suggests that, if anything, the opposite is true.) And, as the controversy following a 2015 statement concerning the standing of children raised in same-sex unions indicates, the folks in Salt Lake City take a back seat to no one in their rejection of sexual orientation/gender identity (SOGI) orthodoxy.
I think that they acted as they did because they realized that the Overton Window had shifted on the issue of SOGI laws, even in Utah, and that their resources were best employed in attempting to ensure that their church continued to do what it has always done with as little disruption as possible in the post-Obergefell world.
The key word in all of this is “church.” In an increasingly never-mind-post-Christian-we’re-just-plain-hostile culture, the kind of individualistic (idiosyncratic?) faith that has characterized much of American Christianity for much of its history is the proverbial house built upon the sand. Even if things don’t get that bad, what Chuck Colson and Harold Fickett called “The Faith” is only passed down by our institutions, even when we are reluctant to call them “institutions.”
Securing their future must be our priority.
If this sounds like I’m throwing small business owners under the bus, I’m not. I’m only saying that, if the past is any guide, we may have to settle for “next best.” If we reject this kind of compromise we are left with, as I see it, two alternatives.
The first is the kind of victory in the courts that, for the reasons I have previously discussed, is unlikely. The second is to argue that anti-discrimination protections should not be extended on the basis of sexual orientation/gender identity.
Given that, according to the PRRI, seventy percent of Americans, including 60 percent of Republicans, favor such protections, this is not very likely, either. (There are exceptions, of course. Some states, for instance Mississippi and Alabama, are very likely to resist this trend.)
El que mucho abarca, poco aprieta.
For the final time, I’m not describing the ways things should be. I’m describing the way they are. I would love to be wrong. Unfortunately, I don’t think that I am.
Image courtesy of littleny at Thinkstock by Getty Images.
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