Religious Liberty vs. Hobby Lobby

Let's start with one thing. It is not acceptable for my boss to make my religious decisions. It is not acceptable for your boss to make your religious decisions, or for somebody else's boss to make religious decisions for them. Your religious freedom is yours, alone. It does not belong to your employer, to your landlord, or to anybody else. The deepest stupidity of the inane Hobby Lobby decision is that it uses religious freedom to let your boss take away your religious freedom. That is not acceptable. And it is not sustainable. Five allegedly rational Supreme Court justices have just opened the door to vicious religious conflict. Because letting your boss make your religious decisions is not acceptable, and over the long run people will not accept it.

I will admit that the Supreme Court and I come at First Amendment questions from different directions (although with a shared commitment to the First Amendment's value). They look back at it from the present day, viewing the Constitution as a point of intellectual origin. They understand its context and immediate antecedents, but their historical narrative is about the creation of the Constitution and the past two centuries of its interpretation. My scholarly work forces me to look forward to the Constitution. The writers and books I study are from an earlier period, inhabiting a world in which the Constitution is not yet imaginable. So I have gradually come to see the Constitution in terms of what went before, to see it as a set of codified solutions to particularly ugly historical problems. I don't have to imagine where we would be without Constitution or the Bill of Rights, because I have all too clear a picture of what the world without them was like.

The 16th and 17th centuries were periods of ferocious religious warfare, complete with terrorism, persecution, assassination, torture, inquisitions, and massacres of civilians. I use none of those terms figuratively. Kings were stabbed to death by religious fanatics. Religious leaders were burned alive in the public square. Conspirators plotted to blow up government buildings, to overthrow regimes. Women and children were beaten to death by mobs of their own neighbors. All of this was done by Christians to other Christians, and no denomination's hands were clean. If you look back at this history hoping to find that your own church behaved like the good guys, you will be sorely disappointed. Every existing Christian group played both the villain and the victim, more than once.

The hundred years or so before the Constitutional Convention saw the European religious conflicts modulate somewhat, so that religion became one volatile and dangerous wild card in larger games of international conflict and domestic factionalism. But religious intolerance and aggression did not go away. The settlement of the Thirteen Colonies was partly driven by the need to escape various forms of sectarian prosecution. And while the wars of religion were no longer the main show, they were certainly not gone. The last armed revolt aimed at putting a Roman Catholic on the English throne was in 1745. Benjamin Franklin was 39 years old at the time.

When I hear 21st-century American Christians complain about being persecuted for their beliefs, I am caught between laughter and disgust. Those people have no idea what real persecution is. And the danger to Christians has never been the secular state. The greatest danger to Christians; religious freedom is always other Christians. Secular government was devised to protect Christians from one another, and it is the only thing that has been shown to work.

The First Amendment guarantees free exercise of religion, and prohibits the establishment of any favored religion. The current religious right loves one clause and hates the second. They want freedom of exercise. They hate that the Establishment clause enforces a level playing field, and prevents one religious group's exercise from infringing upon others. Enormous bitterness is directed toward Jefferson's phrase "separation of Church and State," with endless tedious reminders that Jefferson's phrase is not in the First Amendment per se (but only a clear record of, ahem, original intention). But the fact is, you can't have one without the other. Religious freedom is only possible if the officially-secular state enforces a neutral playing field.

If we allow various Christian groups (or hypothetically other groups, although only Christians have that kind of political muscle in the United States) to use political or economic power to push their version of Christianity on others, the live-and-let-live "free exercise" arrangement falls apart. And then push comes to shove.

If certain parties are allowed to exercise their religious rights so vigorously that other people aren't free to make their own religious decisions, then no one can afford religious tolerance anymore. If my neighbor is permitted to impose his religion on me, then my only recourse is to drive everyone whose religion I disagree with out of the neighborhood. If the principal of the public elementary school has religious freedom to proselytize my (hypothetical) children, then I need to discriminate against certain potential principals on religious grounds, eliminating people whose beliefs I don't share. If a Mormon governor is liable to ban coffee shops, then I can no longer vote for a Mormon candidate. If people are using business to push religion, I can no longer do business with people of incompatible religions. That's a very bad outcome, but it's also the inevitable outcome.

If the government does not act as a referee, religious toleration becomes impossible, unworkable. If individuals are allowed to use whatever leverage they happen to have to coerce their neighbors or employees or tenants into conforming with their own religious beliefs, what you create is a competition in which people are forced to keep amassing more and more coercive muscle. The only way to keep your neighbors from jamming their religion down your throat is to organize some coreligionists and jam your religion down the neighbors' throats. That turns into persecute or be persecuted: a swift, ugly, and distinctly ungodly cycle.

What five of the Supreme Court justices have decided in Hobby Lobby is that religious coercion by non-government agents is actually a guaranteed right, and that the government cannot step in to prevent it because that would limit the coercive party's right to free exercise. That is a mind-bogglingly stupid position. And it ultimately leads back to the bad old days of sectarian infighting, where the only way to protect your own religious liberty was to trample everybody else's. I don't want any part of a country like that. I been there before.

cross-posted from Dagblog