Religion & Law

Tom Berg among others has posted (here and here) on gay marriage and religious liberty. In one post, Tom writes: "It may be time for defenders of traditional opposite-sex marriage to shift some attention from trying to stop gay marriage to trying to secure religious liberty protections, at least in states where there is a significant prospect that the courts or the legislature will recognize gay marriage."  And, I agree wholeheartedly in the need to work tirelessly to secure religious and admire those persons who are called to labor in that vineyard.

But, I wonder if it isn't a tad naïve to think that religious liberty will really be secure without a fundamental shift in our nation's anthropological foundations. We might secure short-term protection, but my bet is that these protections erode over time ? possibly very quickly.

I marvel at what seems to me the rigid intolerance of those who preach tolerance. Photographers cannot be left alone to decline a job involving photographing a same-sex civil commitment ceremony. Catholic Charities cannot be left alone to run its adoption agency according to its own moral compass. Doctors, nurses, pharmacists, and lawyers might be required to subordinate their consciences to the will of the state. J. Budziszewski gives us valuable insight into this phenomenon in his excellent book "The Revenge of Conscience." But, I want to suggest a different, but not necessarily inconsistent, explanation. Many people I talk to think the following. A) Individual autonomy seems to be the paramount good in our society. Each individual is an autonomous chooser who is free to choose among a smorgasbord of private ends for her life. B) One of the state's chief tasks is protecting the individual's ability and right to choose her own private ends. C) Public space is regulated, ordered, and controlled by the state at least partly toward the end of maximizing private autonomy. D) Most public activity (practicing law or medicine, running a business, taking pictures commercially, growing food for sale, etc) is licensed or supervised in some way by the state. E) Many who view private autonomy as the paramount good view those who hold state licenses as operatives of the state and not as independent moral agents. F) As state operatives, doctors, lawyers, photographers, adoption agencies can be required to subordinate their consciences to the will of the state. In this world, there exists only state space and private space; civil society is eviscerated. If those in power (now or in the future) have this view of the world, religious liberty may be secure for private worship but not much else. All the charitable, social, and educational works of religious bodies might be considered public and subject to state control. It is possible that some might even view worship, including the administering of the sacraments, as a public function subject to state discipline. I am not suggesting that any of this will happen in our future. But, as we attempt to secure religious liberty and conscience protection, we ought also to keep an eye on the underlying foundational shifts in society and the possible implications of those shifting sands.