The (Hoped for) Shallowness of Progressive Skepticism Towards Religious Freedom

In his recent post, Mark writes:

Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

I wonder to what extent this is true. On one level, I think that Mark is clearly correct that secular liberals have increasingly decided that “religious liberty” is a code word for various regressive social positions and behave reflexively when it is invoked. On the other hand, I think that some religious conservatives have been rather too glib about labeling every social development to which they object as a threat to religious freedom. To be clear, I am not trying to adopt a pox-on-both-your-houses-above-the-fray stance here. I think that secular liberals have tended to overreact more than religious conservatives, and I think that religious conservatives are right to be wary of the enthusiasm with which progressives have used the power and authority of the state to stamp out perceived social evils. To be sure, conservatives have defended stuff like Blue laws or the Ten Commandments on the courthouse lawn, while progressives have done stuff like create the New Deal regulatory state. The progressive response strikes me as rather more legally ambitious.

That said, I also think that most people – left and right – are pretty shallow and reactive in how they make political arguments. Just 20 years ago, RFRA enjoyed overwhelming bipartisan support. Today it makes many liberals apoplectic. Perhaps this reflects a deep shift in attitudes towards religious freedom, as Mark suggests. Perhaps not. I wonder if at the end of the day, all of this is about two things and two things only. The first is gay marriage, and the second is antidiscrimination law. Right now, progressives worry that granting the legitimacy of any religious freedom claim will rip massive holes in antidiscrimination laws and might threaten the onward march of gay marriage.

In actual fact, I think that religious freedom exemptions such as RFRA present basically zero threat to either movement. Given the shift in attitudes and demographics along with Anthony Kennedy’s ambitions for immortality, gay marriage is already happening in the United States, and religious conservatives are not going to stop it. As for antidiscrimination laws, to my knowledge no court has ever found the application of the compelling state interest test to a law burdening religious exercise creates an exemption from the application of antidiscrimination laws outside of a church setting. Give that some version of this standard has been applied off and on to religious freedom claims for half a century, if religious freedom was going to destroy antidiscrimination law, I think it already would have happened. Hence, if RFRA represents the maximal position on religious freedom in the current landscape, then the bottom line is that there really isn’t any threat to antidiscrimination laws.  To be clear, I think that antidiscrimination laws present genuine religious freedom problems, and I would prefer a regime in which there were religious exemptions in some cases from such laws.  I just don’t think that such a regime is at all likely, and I don’t think that RFRA or the compelling state interest test is going to deliver it.

I think that over time, both the success of gay marriage despite religious opposition and the continuing vitality of antidiscrimination laws despite state or federal RFRA legislation will become glaringly obvious, even to the most fearful of progressives. Once this happens, I wonder if the newfound hostility to religious freedom will continue. It might. I think that a lot of what happens in politics – even the high politics of academic legal debate – is tribally driven. Secular progressives really dislike religious conservatives (and vice versa). I can imagine a world in which “religious freedom” becomes coded as “racist, homophobic religious hick” in the progressive mind, and their reactions get determined by the overwhelming need to insure that the other team doesn’t win.

I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.

2 responses

  1. Nate, in my own observation, I have seen a “progressive” or “secular” or “liberal” (or whatever label you happen to be using today) turn toward a “fearful” stance toward religious freedom in rough proportion to the extent that American political conservatives who use religion as a cover for their political ambitions have begun using “religious freedom” as a euphemism for “discriminate against gay people” or “deny gay people the same civil rights that straight people claim as an inalienable, God-given entitlement.” Why didn’t the state RFRAs in the recent dust-up have accompanying anti-discrimination provisions? Those state RFRAs that did were met with little to no controversy and, indeed, exist in a majority of states.

    As to Mark’s observations about Wolf Hall, these apologetics in favor of More will probably never leave our cultural consciousness, will they? Mark wrote, “In its biased portrayal of More, British history’s great example of religious resistance to state orthodoxy, Wolf Hall is sending its audience a message: Don’t think this man was at all admirable. He was a dangerous head case. And, by extension, be careful of his analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress. Cromwell, and pragmatic people like him who protect us from the forces of reaction, are the real heroes.”

    First of all, all one needs to do is actually read More’s literally insane and bloodthirsty (voluminous) missives against Tyndale to see the true measure of the man. He was not what his apologists created out of him after the fact. He was an admirable paragon of conscience against the cold, calculating power of the state. He *was* the cold, calculating power of the state — a state without the blessed separation of church and state, the secularity of the state that makes most of our freedoms, including our first freedom of religious freedom, possible — in his murderous campaign (this is *not* an exaggeration) against Protestantism.

    Mantel’s portrayal of More simply is more accurate and “true”. He was fanatical, cruel, and, yes, evil. It is a true wonder that More, and not Tyndale — the man More fanatically pursued and against whom his bloodthirsty persecutions of broader Protestantism were basically aimed — is remembered as a man of conscience standing up to the power of the state. It was Tyndale who truly did this when More was the state. Tyndale also opposed Henry VIII’s divorce, though it would have brought him every political advantage to support it. It might have even opened the door to Protestantism during Henry’s reign, despite Henry’s arrogation to himself of the pretense of being a defender of the Catholic faith. Tyndale wrote directly to the king, explaining that in his view, the Bible did not absolutely forbid divorce (More’s position) but simply that in Henry’s case, it was not justified. This was even worse than what More was telling Henry. Tyndale, not More, should be our model of conscience and virtuous steadfastness against the power of the state.

    Second, as alluded to above, it is ludicrous that we revere More as “British history’s great example of religious resistance to state orthodoxy.” In a context without separation of Church and state, More personally wielded the power granted by the fact of the established religion to torture and burn many. Burning heretics had been going on to a very limited extent for 100 years by the time More gained his “secular” influence. But it was More who turned it into the main attraction it became at that time. The presiding clergy in London even tried to take much more muted action against heretics, often opting for the faux burnings in which the heretics were paraded around with faggots strapped on their backs, but not actually burned. It was largely More who changed this.

    We must *indeed* “be careful of [More’s] analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress.”

    I count religious freedom as our first freedom, as a canary in the coal mine for tolerance, reason, and progress. Sir Thomas More was not a champion of religious freedom. Pure and simple. That so many continue to cling to this myth of More as the paradigmatic man of conscience, a model for proponents of religious freedom in 2015, is very discouraging. Mythmaking and hagiography at its best. More is one lucky man that his bad behavior and truly evil deeds have not sullied his legacy. Many others have not been so lucky and have been tarnished by far lesser moral stains that More’s abuses.

    Please, let’s forget about More and honor Tyndale as “British history’s great example of religious resistance to state orthodoxy.”

  2. Oops, I meant to say “He was NOT an admirable paragon of conscience against the cold, calculating power of the state.”

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