A few days ago, in a column entitled "Defining Religious Liberty Down", Ross Douthat attempted to reinterpret the Free Exercise Clause of the Constitution in a manner that, in essence, would allow anybody who shares his religious beliefs, as well as a few others whose beliefs don't offend him, to do and say whatever they believe their religion demands, with no response or push-back from even a single individual. Anybody who does not accept that, Douthat lectures, "then don’t tell religious people that you respect our freedoms."
Douthat gets off to a weak start by attempting to reinvent the Free Exercise Clause,
[T]he Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion.
It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service — encompassing charity and activism, education and missionary efforts, and other “exercises” that any guarantee of religious freedom must protect.
That is to say, Douthat finds the words "significant because
as he understands them, if he claims to have been inspired by religion, they shield his every word and action from criticism. Not just from discrimination, not just from state actors, but from the responses of
private citizens who happen to hold different values.
As I previously stated, Douthat is not speaking in defense of broad religious liberty. He is speaking out for his own beliefs, and other beliefs that he finds acceptable. He does not even consider that you might oppose his words or actions on religious grounds. If you so much as whisper a protest, you're violating his religious liberty - with his faith, or perhaps its his narcissism, obscuring that he's displaying the very arrogance he ascribes to anybody who disagrees with him.
Beyond the sheer arrogance of his position, Douthat overstates his constitutional case. In upholding the state's right to prohibit sacramental use of peyote, Justice Scalia, also a Catholic, has
attempted to explain the Free Exercise Clause,
The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment... provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U. S. Const., Amdt. 1 (emphasis added). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such."... The government may not compel affirmation of religious belief, ... punish the expression of religious doctrines it believes to be false, ... impose special disabilities on the basis of religious views or religious status, ... or lend its power to one or the other side in controversies over religious authority or dogma....
But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf.
Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.
That's a long excerpt, so let's pull out two important points: first, the Free Exercise Clause prohibits the government from "lend[ing] its power to one or the other side in controversies over religious authority or dogma", and second it allows for the broad regulation of society in manners that affect individual and group religious liberty, as long as "prohibiting the exercise of religion... is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision".
One more important point, Scalia rejected the Court's precedents that would have required the state to articulate a "compelling state interest" before allowing a law to take precedence over an individual's free exercise of religion. If Douthat believes it is the secularists who were responsible for weakening that protection, he's looking in the wrong direction.
That is to say, Douthat is ignoring every conservative approach to constitutional interpretation, appears disinterested in learning the interpretation provided by even the most conservative, most religious Supreme Court Justices, and advocates a personal interpretation of the Constitution's language consistent with a 20th century understanding of its terminology - and at that, not a broad understanding, but a personal understanding. The theological equivalent would be for him to pick up a bible, read one verse, and announce that he knows exactly what it means - no need to examine history, context, the opinions of past religious leaders, the teachings of his church. In both cases, it's the sort of personalized, shallow interpretation that has long been scorned, respectively, by political and religious conservatives.
Douthat remains upset that the government is regulating birth control in the context of the secular operations of religious organizations. Yet any form of health insurance is going to cover procedures or medicines that violate somebody's religious beliefs. Douthat prefers to misrepresent the facts, purporting that the regulation treats "religious hospitals, schools and charities as purely secular operations", knowing full well that's not the truth. For example, a religious school that hired few, if any, non-practioners of its faith, and catered to a similarly non-diverse student body would
not be affected by the regulation. But more than that, although Douthat does not mention private employers, the logic of his intepretation of the Free Exercise Clause would extend his objection to the mandate to purely private contexts.
What would happen if a religious organization, or a religious private individual, acquired Douthat's employer and stripped out of his insurance policy coverage for procedures and medications inconsistent with somebody else's religious beliefs? It's not apparent that Douthat has even considered that possibility. If he has, it would appear either that he does not believe that the rules he favors are likely to affect him - that is, he does not anticipate such an employer acquiring the Times - or would view the new owner's religious views as unduly extreme and thus not worthy of protection. Fortunately for Douthat, even within the context of birth control he suffers no direct impact.
Douthat also complains that a judge in Cologne, Germany - apparently operating under the wacky belief that his court is not regulated by the First Amendment to the U.S. Constitution, held that "circumcision as a violation of a newborn’s human rights". Douthat takes umbrage at the notion that a judge could impose such a rule in relation to a baby boy, but makes no mention of baby girls. Yes, there are serious differences in kind and degree between male circumcision and female "ritual genital mutilation", but those concerns are
secular. Douthat complains,
Here again, defenders of the decision insisted that it didn’t trample on any Jew’s or Muslim’s freedom of belief.
Douthat, predictably, does not identify even a single person who claims that the ruling does not impinge on "any Jew’s or Muslim’s freedom of belief" because if he were to approach the supporters' case honestly he would have to acknowledge that they are in fact supporting a balancing test - the rights of the child against the rights of the parent to perform a medical procedure that the parent believes is mandated by religion. Douthat can't keep himself from resorting to hyperbole, that the ruling "would effectively outlaw Judaism itself", as if no Jew has ever had an early or late circumcision, or as if it's impossible for a boy or man to convert to Judaism once he's nine days old. I don't mean at all to belittle the religious issue, but there's no need for that type of sensationalism.
The fact that Douthat has to reach all the way to Germany to find evidence of an encroachment on religious liberty is less evidence of the rarity of this type of conflict, and more of the fact that Douthat's argument is driven by his own ideology. He could instead pick up the cause of parents who, in the name of their religion, would deny an infant or child a potentially life-saving blood transfusion.
Douthat's third and last example is "the great Chick-fil-A imbroglio". Although a handful of politicians to whom Douthat alludes are deserving of cricism for suggesting that they might discriminate against Chick-fil-A based upon the statements of its founder, Douthat is confusing the exercise of speech rights with the free exercise of religion. He also fails to distinguish fair comment - a politician's standing up for the rights and freedoms of his own constituents - for interference with the free exercise of religion.
Does Douthat believe that the president of Chick-fil-A's statement was
mandated by his religion? No? Then what we're seeing is his
choice to make a public statement about his personal religious beliefs. While that might fall under Douthat's made-up version of what the Free Exercise Clause is supposed to mean, from a constitutional perspective we're actually talking about freedom of speech. The president of Chick-fil-A has the constitutional right to say what he wants about gay marriage based upon his religion, and everybody else in the country has the right to respond with support, condemnation or indifference. Even within the context of grandstanding politicians it's a speech issue - no politician or political entity has actually discriminated against Chick-fil-A based upon its president's statement.
Also, within the context of religion, what are we to make of Douthat's assertion that the president of Chick-fil-A "supports 'the biblical definition of the family unit'"? Because last I checked, the Bible included some family units that, by today's standard, are quite unusual. Even if we limit discussion to the New Testament, Douthat will find no shortage of people who will quote scripture to support their belief in polygamous marriage.
Whether intentionally or because he can't help but view the world through a manichean prism, Douthat creates a false dichotomy between the president of Chick-fil-A and the politicians, with the president simply engaging in the free exercise of religion and the politicians are, de facto, neither religious nor concerned about the free exercise of religion. Is Douthat seriously arguing that Mayors like Rahm Emanuel and Michael Bloomberg don't care about religious freedoms? That they're on the side of secularists who would back judicial edicts that "effectively outlaw Judaism itself"? And has Douthat truly failed to notice the considerable criticism of the political grandstanding from the secular community? I recognize that it's easier to caricature your opponents, to roll up every person who takes any position you don't like, to ignore their actual statements, and to pretend they're a monolithic "other" that stands against all that is true and good. But even if he can't reach the point of internal consistency, can't Douthat at least try to be
plausible?
Toward the end of his column, Douthat mentions the need to balance the free exercise of religion against the interest of society, but rather than giving that difficult balance the serious consideration it deserves he invokes the absurd,
We do not allow people to exercise beliefs that require, say, forced marriage or honor killing. You can believe in the gods of 15th-century Mesoamerica, but neither Chicago values nor American ones permit the use of Aztec sacrificial altars on the South Side.
Again, it's the easy cases. The ones few to none would find controversial. The implication is, "The judge thinks that circumcising male babies is akin to human sacrifice," rather than examining the court's actual rationale and the actual balancing of interests that the court attempted to achieve. Harder cases, like denying a child antibiotics for an infection, a blood transfusion for surgery, or medical treatment for an easily treatable ailment that, left alone, is life-threatening or terminal? Douthat, it seems, has no interest in the difficult questions.
Even in the context of his examples, though, it's surprising that Douthat can't find a parallel. Why do we forbid honor killing in the name of even the most sincere religious belief? Why do we forbid parents from forcing their children to marry in the name of religion? Because we recognize that the parent's free exercise of religion can affect their child, and that the child is a separate individual with rights that may justify overriding the parent's religious beliefs and, at a certain age, that it should be the child's choice as to whether to follow the religious beliefs of a parent or to choose a different path.
The judge in German was not forbidding circumcision - he was holding that the procedure could wait until the child was old enough to make an informed decision. While you can disagree with that decision on a number of grounds, if you accept that society can forbid parents from completely disregarding a child's autonomy and individual rights in the name of religion, we're talking about a ruling that differs in degree from the circumcision ruling but not in kind.
If you read Douthat, no surprise here, no small part of his argument is predicated upon the fact that he's not comfortable with sex, and is particularly uncomfortable with female sexuality.
To the extent that the H.H.S. mandate, the Cologne ruling and the Chick-fil-A controversy reflect a common logic rather than a shared confusion, then, it’s a logic that regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as similarly incompatible with basic modern freedoms.
Nobody familiar with
Douthat's past writing is going to be surprised that when he thinks of birth control he thinks of slutty coeds trying to get into his pants, not of married women who want to limit the size of their families or women of any age trying to address conditions such as endometriosis and menstrual cramps. But it astonishes me that to Douthat, the sole reason that a judge might be concerned about circumcision would be that it might "deny one’s offspring the kind of sexual gratification that anti-circumcision advocates claim the procedure makes impossible". When he writes,
[Religious ideas] certainly cannot be exercised in ways that might make anyone uncomfortable with his or her own sexual choices or identity.
Douthat gets it exactly backwards. It's not others who want to limit his exercise of his religion lest he "make anyone uncomfortable with his or her own sexual choices or identity" - it's
he who wants to impose his religious values on the rest of society so that
he never has to feel uncomfortable with his own, awkward sexuality. And believe it or not, from there Douthat's thinking becomes even more convoluted,
It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held.
I'm looking around... funny, I can't see any pornography from here, my marriage seems intact, I have a child so I can't be all that "fertility challenged"... although I suspect that Douthat means the opposite, that the challenge of fertility he perceives is that, believe it or not, some people want to have sexual intercourse while avoiding pregnancy. The only intrusion into my conservative family idyll is a nag of a columnist lecturing me about the decay of society. So I guess from where I'm sitting, at least at the moment his puritanical bent
is a bigger issue than our decadent society.
To be more fair to Douthat, yes, it's difficult to conceive of a religion that would not find fault with some aspect of our society - whose practitioners would not find something to be at odds with their sincerely held religious beliefs. That, however, has been the case for all of human history. Yes, like Douthat many religious people will be uncomfortable with our society's treatment of sexuality. But let's be honest, you don't even have to be religious to take issue with our society's approach to sexuality, nor is it only the
non-religious who engage in sexual practices that would make Douthat blush.
Douthat believes that the use of birth control is morally wrong? Fine, great, nobody's making him use it. But let's not pretend that there aren't millions of devout Catholic men and women who don't share his dogmatism on the issue. He is free to lecture them that they're not being true to the teachings of their church, and they have every right to ignore him. A constitutional right, at that. It's not those men and women who want "to use the levers of power to bend [Douthat] to [their] will" - again, it's quite the opposite.
When Douthat complains that anybody who disagrees with him necessarily "regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as... incompatible with basic modern freedoms", he's quite incorrect. But it's perfectly reasonable to point out that much of the "chastity, monogamy, male-female business" emphasis of "Western monotheism" was historically directed not at regulating boys and men, but at regulating girls and women. Not that Douthat would care, but the 20th Amendment - granting women the right to vote - is still less than a century old.
We're similarly not that far removed from an era in which our nation had legal slavery, and even closer to an era in which interracial marriage could result in incarceration - and in both cases, you could find defenders of the practices who advanced sincere, Christian religious arguments in favor of the status quo ante. Now, I expect Douthat would find it obvious that Christianity holds slavery and racial discrimination to be abhorrent. When the government says, "You have to let African Americans rent rooms in your hotel," that offends some hotel owners' free exercise of religion. When society forces changes of that type, is it a bad thing, period, end of story, because it offended some people's religious sensitivities
at the time, or can we accept that after a period of adjustment most religious institutions will find themselves agreeing with the change?
Contrary to Douthat's suggestion, our society has a long and proud puritanical streak. While it does not bother Douthat, and perhaps he would even prefer that it were more dominant, there are people in our culture who object to the treatment of women as second-class citizens, and who find it objectionable that people like Douthat use their religious beliefs to advance public policy that makes it more difficult for women to participate in society as equals. It is in fact possible to recognize our society's puritanical streak and recognize that some aspects of our popular culture are, to put it mildly, over-the-top. If you spend time actually looking at our society, both aspects are very hard to miss.
If you want to cloister yourself among people of your religion, living in seclusion, untouched by the corrupting elements of society at large, you have every right to do so. What you cannot reasonably expect to do is to come out of that seclusion into greater society without ever being offended, and you cannot reasonably expect to engage with a larger society that does not share your religious values without ever having those values weighed against the needs and rights of others, and of society as a whole. And sorry, if it feels like society is "bending you to its will" when it tells you that you cannot impose your religious beliefs on others, such is the consequence of living in an open society where
others are
also permitted to hold and exercise religious beliefs of their own, even if they differ from yours.
