When a candidate is elected to the United States Senate he or she takes the following oath:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
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.
Despite the 1st amendment and his oath, Sen. Schumer (D-New York) says that religious Americans have a choice: hold their religious faith or go into business but, according to Sen. Schumer, religious people cannot both practice their faith and conduct business in America. Why on earth would an American senator, who has sworn an oath to uphold the Constitution of United States say such a remarkable thing?
The first part of the answer is that, in the modern period, as I explained my post for Independence Day 2014, it became a given in the modern period that religion is an essentially private, theoretical matter. With this assumption, politicians and policy makers assume that when the founders spoke of religious freedom—when they think about the original intent of the founders—they were speaking about the right to hold private religious views. Many of those who make our laws and write the policies by which we live seem to have never come into contact with anyone who does more than hold private religious beliefs. This shapes the world within which politics and policy are formed. Further, as several writers have noted recently, as the federal government grows and becomes more involved in our daily lives, the less freedom citizens have to practice their religious convictions. When the federal government was smaller (before the Great Society) and therefore less intrusive there were fewer opportunities for such a collision. Now, the collision between government and religious conviction is not only inevitable but a daily occurrence.
The second part of the answer is really a question. How did it come to be that, in America, a nation founded on the principle of the right of relatively unencumbered religious practice, in which civil and religious freedom was defined not as “agreeing with the majority” or “agreeing with the reigning political party” but rather “the relative absence of civil restriction” that a politician would feel free to say what Sen. Schumer said? The Bill of Rights used to be sacrosanct in American politics. Even the biggest of the Big Government Democrats in the 1960s (e.g., Hubert Humphrey) would never have said what Sen. Schumer said. The world seems to have been turned upside down. God (he’s out), mother (unless she’s a Lesbian), and apple pie (only if it’s fair trade) all seem to be politically incorrect today.
As I’ve been arguing for a while, we are experiencing some unintended consequences from the Civil Rights Act of 1964. We can see these consequences in Sen. Schumer’s remarks. By going into business, by forming a corporation, according to the senator, one’s property is no longer his. It is no longer private. This is part of the reasoning behind forcing bakers and photographers to serve homosexual weddings. When homosexual couples use the strong arm of the state (and when courts support them) they are saying that one may privately think that homosexuality is sin but one is no longer free to act on their conviction.
Steven F. Hayward explains how the Civil Rights movement of the 1960s has been corrupted. As a matter of fact, Dr. King believed that homosexuality was unnatural, a disorder. Only a few years ago our president was opposed to homosexual marriage, he said, because of his Christian convictions. In other words, as late as 2012 it was culturally permissible in as late as to form policy on the basis of one’s religious convictions and to act on that policy but in 2014 it is not. That is a cultural Blitzkrieg. Hayward traces the roots of the loss of the freedom of association and the free use of private property (including one’s business) to the attempt to redress slavery.
The legacy of slavery and race-based discrimination has led us to make compromises that limit the scope of some fundamental freedoms. The Supreme Court ruled way back during Reconstruction that property ceases to be wholly private when it is used in certain kinds of commerce, especially public conveyances such as transportation, hotels, and restaurants—though restaurants are still allowed to discriminate against the shirtless, the shoeless, and the smelly, showing that we haven’t lost our ability to make any rational discriminations about “discrimination.”
Arguably, by committing and permitting man-stealing and the “peculiar institution” of American chattel slavery (to be distinguished from the way slavery was practiced in the Ancient Near East and by the Greeks and in the NT era) we sowed the wind and we’re reaping the whirlwind. In order to repair what we did we blurred the line between public conveyances and private property. The 1964 Civil Rights act advanced that blurring and today homosexual couples contrive legal cases in order to roll back the freedom of religious people to act according to conscience. The United States Senate is set to consider legislation to overturn Burwell v Hobby Lobby, in which the court held that the 1993 Religious Freedom Restoration Act protects a private corporation from being coerced to act against religious scruples.
The American solution is to recognize that bakeries and photography shops are private property. They may serve whom they will. They are not tax-funded public entities (e.g., busses and trains). Unless we recognize the fundamental right of private property owners to act according to conscience the American definition of civil liberty is dead. At the same time, secularists and Christians alike must recognize that religious convictions are not merely privately held beliefs without public consequences.
In an attempt to shame us into repudiating the notion that religious beliefs have public consequences some critics have attempted a reductio ad absurdum: if we allow Hobby Lobby not to provide abortifacients to employees or photographers not to serve homosexual weddings, what then? We shall have allow Native Americans to smoke peyote. Using the ghoulish Lemon Test, the Supreme Court (1990) has held that there is not a right to use peyote, even if for religious purposes. Nevertheless, in the interests of maximizing religious and civil liberty, I would support permitting the religious use of peyote if that’s the price we must pay to regain the freedom to act according to conscience. If the use of peyote renders one unemployable (because of intoxication), that is not the employer’s problem. It is reasonable to expect employees to be able to be employed and employable. What about polygamy? A natural law argument can be made against both homosexual marriage and, on similar grounds, polygamy. Both are contrary to the nature of marriage. The state may license unaided human flight but it is still against the laws of nature. Anyone who tries it will suffer the consequences. So it is with homosexual marriage. Courts may license it but such marriages are legal fictions.
Why may the state regulate homosexual marriage but not compel a private business to serve a homosexual marriage? The state has no compelling interest in compelling a private business to associate with (by doing business) or endorsing a homosexual marriage. No one has a natural right to my cake or my services as a photographer—unless of course we’ve abolished the very notion of private property. Until I sell it to you, the cake and my services are mine. They are not yours. That’s why we have laws on the books against theft. There is a fundamental difference between mine and yours. We all learned that in kindergarten. Apparently Sen. Schumer missed that session?
In contrast, the state has a compelling interest in limiting what sorts of marriages may be contracted. No one has a fundamental right to do things that are contrary to nature. Thus, incest is properly illegal. Pedophilia is properly illegal because it is contrary to nature. Bestallity is properly illegal. This is why suicide is properly illegal—not because it is immoral or sinful but because it is contrary to nature. Humans do not have a fundamental right to murder others or themselves. No society, as the Netherlands shall soon discover, can legally sanction suicide and survive. One Dutch physician writes, “Deliberate termination of life of newborns (involuntary euthanasia) with meningomyelocele (MMC) is practiced openly only in the Netherlands.” A society that gave legal approval to bestiality could not be cohesive even if gave the broadest possible definition to the word. Imagine a man and his bestial “wife” checking in to a hotel. Now, that’s absurd. The family is a natural, creational institution and these practices, even as they are gaining approval among some influential intellectuals, are destructive of any sense of family. In other words, if we are going to live together, there must be basic rules common to a society if it is to retain that title. Otherwise we shall have descended into a Hobbesian state of nature.
We should all hope that Sen. Schumer and all who think as he does on these issues will reconsider the history of the Republic and the violence that must be done not only to our constitutional documents and principles but also to the very idea of liberty itself. They may get their wish and banish religious objections but they may come to regret it when their most deeply held and formerly protected convictions are also sacrificed on the same altar. To what will Sen. Schumer appeal then, when his basic liberties as well as ours have rubbished?