Is “toleration” becoming a new word for “bigotry”? During oral argument in the recent gay-marriage litigation, Justice Alito asked the solicitor general if the precedent of the Bob Jones University case would apply to institutions that reject the new definition of marriage. In that case, the Supreme Court had said our government may discriminate against certain religious institutions, if they practice invidious discrimination—in the case of Bob Jones University, they prohibited interracial dating, and, therefore, lost their tax exemption. The logic might very well follow from Justice Kennedy’s opinion, as the solicitor general conceded it might when the question came up.
If our government pursues this logic, which follows naturally from Justice Kennedy’s claim in his gay-rights decisions that only invidious animus can explain one’s rejection of gay marriage, it could be used to require all priests, ministers, rabbis, imams, etc. to preform same-sex weddings, or lose their legal ability to officiate at weddings. (Sure, the argument would go, clerics are free to believe whatever they want, but the right to sign a marriage license is a right government confers, and, as such, the government ought to deny that right to those who would discriminate in its application).
A similar logic would apply to all orthodox Jewish institutions. The law would force an orthodox Hebrew day school (and most Jewish day schools are orthodox), for example, either to employ men and women who not only engage in practices orthodox Jews regard as sinful (that category includes just about everyone—few of us are saints), but also those who publicly reject Jewish teaching about what is sinful, not to mention teachings about the nature of man, of woman, and of marriage. The same would apply to Christian and Muslim institutions.
Some may believe (hope?) these teachings will change. But that is probably a false hope. Down this road lies a postmodern tragedy—orthodox Jews forced out of America, all in the name of toleration and diversity of course.
The Old Presumptions of Liberty
These problems might seem to be entirely new. No one, or almost no one, had ever thought that the term “marriage” might be fitting for a homosexual relationship until yesterday, historically speaking. I recently picked up Milton Himmelfarb’s collection, “The Jews of Modernity.” In one essay from 1971, he quotes the great Rabbinic commentator, Rashi: “They do not write a marriage contract between males: for though the pagans are assumed to practice homosexuality, and in fact, do practice it, they are not so far gone in derision of the commandment against it as actually to write a marriage contract.”
That marriage was for men and women used to be regarded as common sense on the subject, even in cultures in which homosexuality was not frowned upon. By contrast, the prohibition on interracial marriage was an aberration in history. Bans on out-group marriage have not been uncommon in history. Christianity, with its universalism, has probably been more responsible than anything else for attacking that practice. That distinction is important. When choosing between a definition of marriage that has survived the test of time and a novel, new-fangled one, it may be incorrect, but, despite Justice Kennedy’s claim, it is not unreasonable to conclude that the new definition will not last.
It is also worth remembering that until the 1964 Civil Rights Act, American law had far more respect for the liberty of association among private individuals, charities, churches, businesses, and other members of civil society than it does now. The presumption was not that the government, in allowing ministers to sign legal marriage contracts, or in allowing all citizens to incorporate a business, creates a right, and therefore, may put any restrictions it chooses upon it. On the contrary, the presumption was that the government was merely helping private citizens, either as individuals, or in groups (often groups classed as “corporations”), to enjoy their liberty, and citizens were, therefore, given a wide birth in their decisions about how to act either as individuals or collectively in civil society.
Even so, the problem of balancing the rights of conscience with the obligations of citizenship is as old as the republic. That balance is difficult to achieve and maintain in a regime dedicated to the rights of men. Increased regulation of civil society makes the issue more complicated, but the fundamentals do not change.
How Protected Classes Threaten Freedom
With that in mind, we could do worse, and perhaps could not do better than to consider how President Washington thought about the problems of civic obligation and religious liberty. As we do that, we should remember that the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
After the Second World War, the Supreme Court decided that the Fourteenth Amendment expands those taboos to all governments in the United States, not merely federal legislature. That being the case, we need to consider the first two prohibitions: no law respecting an establishment of religion, or prohibiting the free exercise thereof. The former limits government’s entanglement in religion, or perhaps merely the government’s ability to favor any single religion; the latter limits government’s ability to limit our right to live in accord with our consciences. Viewed from this perspective, the creation of “protected classes” in American law is becoming a threat to our right freely to exercise our religions.
President Washington’s most famous comment on religious liberty is found in his Letter to the Hebrew Congregation at Newport. In the letter’s best known passage he declared:
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
Religious liberty is not an indulgence a superior gives to his inferiors, “tolerating” practices and beliefs that he regards as repugnant, as one tolerates one’s in-laws. Neither ministers nor other citizens need to be given a license from the government to practice their religions. On the contrary, the United States “which gives bigotry no sanction” allows congregants of all religions “the exercise of their natural rights.” The Declaration of Independence notes that “among these are Life, Liberty and the pursuit of Happiness,” implying that there are other inalienable rights which government exists to secure.
The rights of conscience would be high on the list, as would the liberty of association. As the right to “pursue happiness” entails a right to live as one’s conscience dictates, (one can hardly be said to be happy if one is forced to act in bad faith), but individually and with one’s neighbors, one could argue that the rights are linked by an inescapable logic.
People Can’t Be Happy if They Can’t Exercise Belief
The free exercise of religion, however, presents some complications. The rights of conscience are self-evidently inadequate if one is prevented from acting upon one’s beliefs. Can Americans be free to pursue happiness if the government makes it impossible to work peacefully at one’s business, to conduct that business according to one’s conscientious beliefs, to raise one’s children according to those same beliefs, etc.?
To take a particular case, religious liberty would be inadequate were Jews free to believe that sons must be circumcised on the eighth day after they are born, but, at the same time, American law prohibited circumcision. A recently proposed initiative to ban circumcision in San Francisco was struck from the ballot. But such initiatives have a habit of returning. It is wise to be bearish on the future sometimes. Efforts to ban circumcision and the kosher slaughter of meat are having some success in Europe.
Sure, the logic goes, Jews have their beliefs, but it is wrong to mutilate the body of an infant who cannot consent. Similarly, the argument goes, animal-rights laws are broadly and equally applicable. There is no reason to give special exemption from the law to anyone. After all, the law applies equally to all citizens. The American Left usually follows “enlightened” European opinion in such matters.
It is emphatically the job of government to make laws for the common good. Moreover, lawfulness is a basic attribute of good citizens. As Washington noted, “they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.”
Is Civil Disobedience the Answer?
What are we to do when conscientious beliefs and the demands of law conflict? Henry David Thoreau gave one answer to this problem: refuse to obey the law. But Thoreau radically denigrated government. In the second paragraph of “Civil Disobedience,” he proclaimed:
This government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way.
Civil disobedience is based upon an extreme denial of the good that government might do. Thoreau found the Mexican War so repugnant that he refused to obey the law and went to jail, as civil disobedience dictates. (He was, however, bailed out after one night in jail.) But can a society function when each citizen holds that he may stand in judgment of each law on a regular basis? Antinomianism does not provide much of a political foundation. On the other hand, given the Left’s affection for Thoreau, can his radical libertarianism be reconciled with the modern administrative state? Perhaps it is that combination that is the true source of today’s troubles.
What happens when conscience opposes not a particular war, but war in general? The United States has experience with exactly that case. We call Quakers “conscientious objectors” for a reason. In good conscience, they refuse to fight in the army. During our Revolutionary War, General Washington found this frustrating. It did not make sense to him that a group of people who wished to enjoy their liberty would refuse to fight to preserve that liberty when it was under threat. (Quakers may have seen the matter differently, of course). In his “Autobiography,” Benjamin Franklin has similar reflections on the Quakers’ refusal to fight.
Shortly after he became president, Washington penned a brief Letter to the Annual Meeting of Quakers. Washington began by noting that government exists, according to American principles, to allow men to live conscientiously: “Government being, among other purposes, instituted to protect the persons and consciences of men from oppression, it certainly is the duty of rulers, not only to abstain from it themselves, but, according to their stations, to prevent it in others.”
His letter ended by pointing to the tension that can exist between the obligations of citizens and the obligations of conscience: “I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.” In other words, Washington held it is the duty of government, if at all possible, to make space for Americans to live according to their consciences, even for those who refused to pick up a gun when the British were invading.
I’ll Fight for Your Right to Not Fight
In the middle of the letter, Washington noted that Quakers, as a rule, made exemplary citizens. They were law-abiding, worked hard, educated their children well, provided food and shelter for themselves and their families, and gave charity to the poor. Yet Washington found them wanting in one key regard: “Your principles and conduct are well known to me; and it is doing the people called Quakers no more than justice to say, that (except their declining to share with others the burden of the common defense) there is no denomination among us, who are more exemplary and useful citizens. “ On that “except their declining to share with others the burden of common defense” hangs a great deal.
To refuse to fight for one’s rights, and, at the same time to be determined to enjoy them was, as far as Washington could tell, to be a free rider. Even so, Washington knew he had no right to insist that Quakers join the military, for such a demand would violate the very principles for which he had risked his life. In other words, the principles of 1776, Washington held, suggest that America must presume the good faith of conscientious objectors to our laws and, the rights of conscience being of paramount importance, must seek an accommodation with them for minister and laity alike.
Regarding the Quakers, America’s founders faced three options. They could simply demand that all citizens help defend the republic, and hold that the Quakers could believe whatever they wished, but the government could force them not to act in accord with those beliefs. (The result would have been a de facto expulsion of Quakers.) The second option would be to allow the Quakers not to fight, but only after paying a special penalty or tax. The first option was unacceptable, for it was unreasonable to create such an abject separation between belief and action. The second was, in some ways, worse than the first, for it would create a second class of citizens, requiring Quakers to purchase their liberty. That left the third option—allowing Quakers to refuse to fight.
To reject the Quakers’ beliefs, or to impose on Quakers special burdens as the cost of their liberty, would be a return to the older definition of “toleration,” according to which we hold our noses and tolerate people and practices we find repugnant. Instead, Washington welcomed a robust diversity of belief and practice, respecting in the Quakers a belief he, personally, thought was illogical and inconsistent with liberty.
However problematic Washington held the Quakers’ pacifism to be, he also recognized that he had to respect it, as much as humanly possible, for the principles of 1776 demanded he do so. In other words, Washington recognized that this was a political problem. Although it involved key questions of principle, or, perhaps, because it involved principles on both sides, its resolution necessarily entailed some political negotiation.
Why Toleration Is Intolerant
As the scope of American law has grown, the areas of conflict between the rights of conscience and the demands of law have increased considerably. (To cite one instance, absent the demand that employers provide health coverage, the Little Sisters of the Poor would be free to purchase or not purchase whatever policy they decide is fitting.) Meanwhile, the percentage of Americans, particularly in our elite and governing classes, who hold that religions (perhaps only non-Progressive religions) are a barbarous relic of a bygone age has increased considerably. Hence they refuse to recognize the rights of conscience.
Seen from this angle, we can recognize that what is called a “culture war” might be better understood as the problems that come with the creation of a postmodern religious establishment—an establishment that takes on most of the roles of the old establishments, yet defines its beliefs, conveniently, as “not religion.” The result is that it feels free to impinge on the rights of conscience in the name of “toleration” and “diversity.” Meanwhile, since national government has taken up the police power (the authority to regulate health, safety, and morals), a power that even Alexander Hamilton denied belonged to the federal government, it exacerbates the conflict.
With that in mind, we Americans of the twenty-first century would be wise to recall Washington’s example. If Washington understood that it was essential to respect the rights of conscience, even when America was fighting for its survival, then surely we can do better in finding ways of respecting the religious beliefs and practices of cake bakers, photographers, florists, nuns, and of Americans in general in their diurnal affairs. Such are the demands of religious diversity.
The alternative is to weaken America’s status as a land of liberty. If we continue down the road we are going, I fear that America will be the latest instance of the ancient tragic pattern, but with a twist—for in twenty-first-century America, this bigotry claims the mantle of “toleration” and “diversity.” Even so, we should recognize it for what it is.