Many years ago, the Supreme Court of the United States took up a case involving people who did not wish to conform to a law that they considered to be an imposition on their religious beliefs. The government, backed by strong public opinion sought to enforce the law, and to compel this religious group to comply.
But they persisted in defending their civil rights, particularly their freedom of religion. It was a time when it was widely understood that freedom of religion was actually a civil right, essential to well-ordered liberty. People recalled that the freedom of religion was so important that it was explicitly enshrined in the United States Constitution in two separate places — in the Free Exercise and Establishment clauses of the First Amendment, and in the ban on religious tests for public office. It was a time when freedom of religion was under attack around the world, with people of some faiths being openly and brutally persecuted.
But it was also a time when unpopular religions still faced legal obstacles in the United States. Some faiths were considered to be out of step with American values, out of the mainstream of acceptable opinion, and were widely criticized and even derided in the popular media.
The group in that case was the Jehovah’s Witnesses, and the law required their children to recite the Pledge of Allegiance. They took the issue all the way to the Supreme Court, in hopes that the highest court of our land would defend their right to live in keeping with their faith, and would grant them an exemption from the law. The Supreme Court agreed with them, and reversed an earlier decision that gave their religious interests little respect. In doing so, the Supreme Court, in the words of Justice Jackson, said something very significant about the nature of our government, and the importance of respecting dissent:
[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. (West Virginia State Board of Education v. Barnette, 1943)
We are now at a point in American history where this foundational principle is under direct attack, and it is not clear whether it will survive. The long-standing conflict between the Christian faith and the forces of sexual liberation and radical egalitarianism is approaching a threshold that will be very dangerous to cross.
The battle right now is being conducted over religious freedom restoration statutes (“RFRA’s”) that have been enacted in twenty states (and which are the law by judicial decision in eleven others). Those laws reflect the values expressed by the Supreme Court in the Jehovah’s Witness case. RFRA laws recognize the civil rights of religious people to an exemption from certain general laws. They would only get an exemption if they can prove that the law imposes a substantial burden on their religious beliefs. However, they would still have to obey the law if the government has a compelling interest in enforcing it and there are no reasonable alternatives. A RFRA law essentially creates a balancing test that courts would have to apply to a fact-based situation. It does not grant a blanket or automatic exemption to religious people.
The real dispute is, of course, whether Christians can be compelled to recognize same-sex “marriages” and to provide direct services to ceremonies that purport to create such unions. A reasonable argument can be held about this question. But that’s not what’s happening, and that’s precisely why we are in such a dangerous moment.
There has been an amazing amount of hysterical, ill-informed opposition to these RFRA laws that fail to take into account their true, limited nature. But what really concerns me is the dismissive attitude that’s being displayed about religious freedom and the freedom to dissent. People are speaking as if the category of “civil rights” didn’t even include freedom of religion, and that it must always be suppressed in favor of the supposed right to same-sex “marriage”. One of our major political parties, most of the mainstream media, many of our courts, and a number of large corporations have already crossed the line into official intolerance towards religious liberty. Public opinion polls show a shrinking number of people (albeit still a majority) who respect the right to dissent based on religion. Gone are the days when dissent was considered a legitimate form of patriotism.
Basic respect for the right to dissent from official orthodoxy is under threat, and may not survive much longer. When, as I expect, the Supreme Court invents the imaginary “right” to a same-sex “marriage”, this conflict will grow even more intense, and the danger to dissent based on religious beliefs will be even more acute.
On the other side of this threshold is real persecution, like that shown to the Jehovah’s Witnesses in the old days. People are already being forced to recognize same-sex “marriages”, or face crippling fines and loss of businesses. Institutions that resist will be punished by loss of public funding, access to public programs, and tax exemptions. Individuals who dissent will be shunned and excluded from certain professions, and even from public office.
The right to dissent is essential to American liberty. The Supreme Court saw that in the Jehovah’s Witness case. Will our nation continue to see that now?