There seems to be a fundamental misunderstanding in American society of what religious freedom entails, and this misunderstanding threatens to destroy the actual freedom itself. Lower court decisions have already stripped some elements in favor of culturally popular dogma, a reality the Supreme Court may or may not reverse. Atheistic groups have unsurprisingly sought to interpret religious freedom into non-existence along with God, but religious groups have not always helped matters, either. Some argue extreme positions while others tie themselves to political parties so closely as to simply be a regurgitation of partisan talking points. Phrasing things ever so slightly into exaggeration, flipping definitions around, and using emotive words to misrepresent ideas has reached elite status in American politics. If it was an Olympic sport, perhaps only the Russians could threaten us for the gold, but meanwhile, the idea of religious freedom has been misunderstood, redefined, and read passionately backwards.
I sound negative, I know. In my defense I’m still reeling from Jon O’Brien and Larry Decker’s idea of “true religious freedom” in their recent opinion piece in The Hill. They argue that religious freedom does not give one the right to discriminate against others, which doesn’t sound so radical, but in their article it means you must accept and/or participate in same-sex wedding ceremonies, support a pro-choice position on abortion, and refrain from protesting when public advertising slanders your religion.
In other words, religious freedom is fine as long as your religious beliefs have no impact on your behavior, participation, or actions. Do what we tell you and you can be free. Having another opinion is acceptable, but you must participate with the lifestyle, ethics, and opinions of the rest of the world, even when doing so violates what you believe.
Which, by definition, is actually the opposite of religious freedom.
How did we get here? The concept of religious freedom never meant freedom from religion as O’Brien and Decker insist along with millions of others. It does demonstrate that the removal of Christian history in western education (doing so in an effort to maintain a separation of church and state of course) has had pronounced negative effects on the understanding of history itself. Whether we are Christians or not, the fact that Christianity was intertwined with western Europe and early American history is undeniable. Understanding that history is quite literally impossible by strictly focusing on the Enlightenment while ignoring Christian influences. The circumstances of the western world were buried in Christianity.
We should recognize, for instance, that when religious freedom was an issue back in the days of Thomas Jefferson, the norm was to have State churches. Most could not imagine an effective government that did not choose a church to be the State Church. In America, the Congregationalists and the Anglicans enjoyed this status. This meant a portion of taxes would go to the official church. If a pastor preached something that contradicted the doctrines of the State Church, that pastor could be thrown in jail. They often were. In fact, they often preached from jail, which is one reason why there are walls around the outside of some early American jail houses. The State Church didn’t want a rebel pastor preaching to people through the bars of his window!
This was the world of Jefferson. It was the world of early America, and it’s why the separation of church and state was not spearheaded by atheists. It was spearheaded by those Bible-thumping Baptists who teamed up with Jefferson. It was spearheaded by religious people who objected to paying taxes to a church whose doctrines they rejected. One Baptist minister who looked upon Jefferson as a kindred spirit, John Leland, argued for religious freedom this way:
“Is it the duty of a Jew to support the religion of Jesus Christ, when he really believes that he was an imposter? Must the Papists be forced to pay men for preaching down the supremacy of the pope?”[1]
Those were important questions because the problem wasn’t merely whether people personally followed their religion, the problem was people were forced to pay taxes and conform their actions to an official, State Church. There were sometimes even laws that everyone had to have their child baptized by a certain age or face a penalty! Imagine being forced to participate in something that went against your beliefs!
It shouldn’t be hard considering we do the same thing to wedding cake bakers.
Let’s get one thing out of the way. Discriminating between various actions, endeavors, and practices is the result of any religious belief. Jewish and Islamic believers refrain from certain types of food, follow certain moral codes, and practice certain religious rituals. Christians have fewer lifestyle restrictions than those two groups, but generally, Christians view drunkenness, certain sexual practices, and certain ethical practices as outside their moral code. All of this necessarily means that religious people typically do not participate in everything that particular culture, even Western culture, practices. Forcing such people to accept and participate in these actions anyway, regardless of their personal beliefs, is religious oppression. It may not be harsh oppression by any means, but it is certainly not religious freedom as O’Brien and Decker try to argue.
Of course, it’s not so simple. Many would argue that this religious freedom thing is all well and good, but when Christians or anyone else attempt to impose their beliefs on me, they have stepped over the line. This argument carries some weight since a government like ours can be influenced by society. The majority can begin to write laws and regulations that, in effect, begin to enforce a religion. Islamic democracies, as limited as they may be, tend to have very popular support for Islamic laws and traditions.
Thus, this argument sometimes has a point, but these days in America, it’s rare.
Let’s be real. In the United States today, most religious concepts of sin or bad behaviors are perfectly legal. It’s perfectly legal to buy bacon and eat it regardless of what a religion believes. I live in zero fear of the Presbyterians throwing me in jail for what I preach this Sunday. It’s also perfectly legal to practice more serious sins such as adultery, witchcraft, idolatry, and hatred. Indeed, I sincerely believe that rejecting faith in Jesus may result in eternal punishment yet there are no laws against rejecting Jesus and becoming an atheist. I have no desire to make any.
However imperfectly, the United States has practiced what the actual idea of religious freedom has been since people like Thomas Jefferson and Leland were articulating it. As Jefferson argued (and Leland would repeat):
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
The test for any restriction of religious freedom was whether or not it became “injurious to others.” As examples, Jefferson mentioned having money stolen or being physically injured. Consider how this could be applied today. First, in regards to a thorny issue like abortion, it helps us understand each side. Most religious people oppose abortion, for instance, not because it goes against a specific religious practice they are trying to impose, but precisely because they sincerely view abortion as murder. This is why abortion is a tougher issue. It arguably does rise to the level of injurious. It is also why the danger to the life and health of the mother, or the issue of pain to the unborn child, are also legitimate issues where some sort of balance should be pursued.
The abortion debate, therefore, is not one side trying to force a religion down the other side’s throat. If that were the case, there would be many other rituals or beliefs the religious side would also be attempting to legislate. In reality, abortion opponents are arguing that the action of abortion causes real physical harm to another person. It is impossible to claim that the government should not regulate or restrict such activities, otherwise murder, manslaughter, kidnapping, and abuse would also be legal. Abortion is a real question and should be. Since people have the right to vote in a representative government, the fact they oppose abortion on these grounds is perfectly in line with how the United States has defined freedom.
But what about the harm caused by wedding cake bakers? The follow-up argument against religious freedom says that’s fine, believe what you want, but by not baking a cake or by refusing to provide assistance for abortion, you are harming me or that person who wanted to eat your sugary goodness on their wedding day. O’Brien and Decker argue this very point, asking:
“What about that couple’s right to express their love through their wedding ceremony and their cake?”
In regards to the denial of abortion drugs or contraceptives, they ask:
“What about a woman’s conscience? What if she has her own moral reasons why she needs that birth control to make wise decisions for her wellbeing and that of her family?”
These are good questions. The authors have every right to ask them. Nevertheless, we should be careful how we answer because, as the old saying goes, you can’t please everyone. If we tried, we would quickly find ourselves allowing and participating in all sorts of disturbing actions and behaviors that someone else finds perfectly acceptable or even good. It’s not impossible to find people who sincerely believe a sexual relationship with a preteen child should be legal. So the question is not merely where we draw lines; the real question is how do we draw the lines? How should lines be drawn in regards to baking wedding cakes, or providing contraceptives, or anything else that comes up twenty years from now?
Jefferson and Leland had a good answer. Harm involved violating the conscience or causing real physical or financial damage. In other words, the harm needed to be more than irritation or offense. In regards to the Catholic opposition to contraceptives or the much larger opposition to abortion, these cases could be judged by balancing the possibility of actual harm with basic freedoms. If you can get contraceptives for free somewhere else, it’s difficult to see how there is any harm. By contrast, there certainly are issues with abortion that need to be debated and circumstances to consider.
When it comes to baking a cake, however, a Christian baker’s refusal to participate in a same-sex wedding does not realistically or typically cause physical or financial harm. It does not force the same-sex couple to perform an action that violates their conscience. It does not prevent the wedding ceremony from having a cake at all. If there is another cake baker available, let capitalism solve the problem. As a comparison, surely adultery causes emotional harm, far more than someone refusing to bake a cake, and adultery actually does cause financial harm. But if we are not willing to make adultery illegal, what justification is there for punishing someone for not baking a cake? When other cake bakers are available and the only injury is inconvenience or deep offense, it simply does not justify taking away someone’s religious freedom.
If it does, then religious freedom means very little, and it should be removed from the Constitution altogether to save us the bother.
[1] John Leland, “The Rights of Conscience Inalienable, (1791)” in The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding, Daniel L. Dreisbach and Mark David Hall eds. (Indianapolis, IN: Liberty Fund Inc., 2009), 341.
Consider how difficult it would be to convince someone that an imaginary person existed and had been famously walking around town just two months ago. Now try to convince the same person that they themselves saw this imaginary person perform a miracle. According to the book of Acts, written in the first-century AD, the apostle Peter said this:
Brian Ingalls 