The dustup over the recent attempt in Arizona to bolster religious freedom exemptions, aimed especially at laws regarding discrimination against homosexuals, is but a piece of a much broader conflict between religious liberty and gay rights. We should expect a great deal more of this in the future and, quite frankly, we should not expect religious liberty to win very often.
The reasons, I think, are multiple: swiftly changing popular conceptions of sexual morality; growing religious disaffiliation, especially among urban elites; and divisions among even relatively theologically conservative believers as to how to engage the questions. But there’s another, deeper, reason that won’t ever make the headlines, but that exerts a powerful pull on our imaginations and drives more arguments than we likely suppose.
Consider the fact that no American citizen has a constitutional right to refuse military service. When the First Congress was debating what became known as the Bill of Rights, the House of Representatives was considering what became the Second Amendment. It was offered up to the House as follows: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” After some back and forth about the merits of the first part, Egbert Benson from New York made a motion to have the last clause struck out. As the record indicates, he objected because “No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government.” Though his motion failed that day (by a vote of 24-22), his argument eventually carried the day and the clause disappeared, though the Second Congress filled in the gap with legislation soon thereafter.
Why does a relatively obscure 18th century debate whose outcome was effectively reversed via legislation matter to conflicts over religious liberty and gay rights? Well, the answer lies in what is a rather inelegant political theory term: compossibility. (It’s likely that the term has uses beyond political theory, of course). Compossibility refers to the belief that all the things in system will hang together, that there won’t be any deep or intractable conflicts. In this case, when legislators decided against granting religious believers (Quakers and Moravians, mostly) a constitutional right to be exempt from military service they did so because to affirm such a right would suggest that the natural rights which justified government were somehow in conflict with one another. Why does government have the authority to coerce us into military service? Because we have a natural right to self-preservation which we concede to government. It would make no sense on this account to also have a natural right to refuse the government that authority, though the government might accommodate believers’ consciences as a prudential exercise of its legislative authority.
This sense of our government’s authority underscored Justice Scalia’s opinion in Employment Division v. Smith, a 1990 case in which the Supreme Court decided that so long as a law was “neutral” and “generally applicable,” the Constitution did not require government to offer exemptions to individuals and groups, though it left legislatures free to do so if they so chose. Congress responded to the decision by passing the Religious Freedom Restoration Act and President Clinton signed it into law in 1993. The legislation that Governor Brewer vetoed in Arizona was, in reality, merely an attempt to make the state’s laws match the federal government’s.
The law’s opponents seized on the fact that Arizona’s legislators clearly meant for it to apply to cases where religious believers did not want to participate in same-sex weddings and offered up a parade of horribles that would surely ensue should it be made law. Noah Millman, over at The American Conservative, seemed especially apoplectic:
If I understand the law correctly, not only would it legalize a wide variety of types of private discrimination, not limited to my examples above, but would do much more. It would legalize polygamy and marriage with underage girls (both sanctioned by so-called fundamentalist Mormon groups). It would permit public school teachers to explicitly proselytize to their students (I’m quite certain you could find fringe Protestant groups or individuals who hold that such witnessing is mandatory at all times). I’m not sure, but I think if you founded a Church of Nude Defecation, and declared that God told you the Arizona state legislature was your temple, the state of Arizona could not expel you for practicing your faith in the place that God had designated.
It would, of course, do none of those things, evidenced above all by the fact that none of those things—or any similarly radical outcomes—has come about on account of the Federal RFRA. What has made otherwise careful, interesting writers (and Millman is both) go off the deep end like that?
The short answer is “discrimination.” When writers wanted to offer their knock-down objections to the law, they argued that it licensed discrimination and that it was just like the sorts of racial discrimination evident in the era of segregation. No one thinks racial discrimination is defensible and if you think some activity is tantamount to forcing people into different dining rooms, you’re likely not to quibble about the finer points of the law. Now, we can go round and round about the ways in which sexual orientation and practice is and is not like race and ethnicity, but I think there’s a more fundamental point to be made here. Even if you think that it’s generally wrong to discriminate on the basis of sexual orientation, that doesn’t answer the question of whether religious believers should be penalized if they don’t want to bake a cake for or photograph a same-sex wedding. Or, rather, it doesn’t answer the question unless you think that all rights are compossible, that they should fit together with no conflict and no remainder.
Implicit in many of the strong denunciations of the Arizona bill (and other similarly structured efforts) is the belief in compossibility: if you think that it is morally impermissible for people to discriminate on the basis of sexual orientation, it won’t really matter that laws that follow this sort of moral claim will tread on religious liberty rights. Our rights here are of a piece and if we think we perceive a conflict among them, we are in fact mistaken and should adjust our perceptions forthwith.
It does no good, then, for those looking to protect the consciences of religious believers in these sorts of cases to simply advert to claims for “religious liberty” and expect the argument will carry through. Religious rights, like any other right, are not absolute—as Bill Galston has been wont to say, there’s no religious liberty for (human sacrificing) Aztecs—and for those who are looking to shift our society’s conceptions here, they will merely cry “discrimination” and let loose the lawsuits. The fact that such a move might have pernicious effects on other liberties they value won’t occur to them until long after this fight is done.
So what to do? Well, religious (and other sorts of) conservatives have largely lost the public argument about conceptions of sexual morality and it’s likely that we will continue to lose them (e.g. arguments about polygamy and polyamory). The legacy of civil rights law means that any effort to distinguish among people (or their actions) on the basis of what are taken to be morally irrelevant characteristics will be labeled “invidious discrimination” and categorized as just like racism. It will be tempting to try and use liberal claims in favor of toleration and the like to blunt the political and legal effects of the moral change, but I suspect that such efforts will be in vain.
Things in this regard do and should look bleak for religious conservatives, but only so long as we are playing on the field of compossibility, so to speak. Fortunately, compossibility is not actually true—our rights do not all fit together in one neat package and claims in favor of one person or group sometimes means a loss for others. There is, as Isaiah Berlin repeatedly noted, no social order without loss, and if we are to secure religious liberties on into the future, we will need to recognize and acknowledge clearly that liberties have costs. There is a reason that the HHS contraception mandate is relatively unpopular, since it forces organizations to violate their conscience for the good of free contraception. In talking this way, we will not win all, or even most, arguments but perhaps we can have a more honest public conversation.
Bryan T. McGraw is an Associate Professor of Politics and International Relations Wheaton College.