The Limits of Religious Liberty

Ryan J. Lanier

The most recent Supreme Court term was undeniably a win for religious liberty. The Court delivered wins for school choice in Espinoza v. Montana, the ability to choose employees in Our Lady of Guadalupe v. Morrissey-Berru, and the right to deny contraceptive coverage in Little Sisters of the Poor v. Pennsylvania. Each of these victories, however, comes at a cost. With each Court ruling, religious conservatives and other defenders of religious liberty risk becoming complacent or otherwise overconfident. Further, much of the praise for these decisions has highlighted them as a win in the ongoing culture war between the right and the left. Such reactions, however, reinforce the defeatist attitude held by many on the right. The culture war has been lost, they believe, and we must protect ourselves from continued progressive intrusions. This approach highlights the limits of religious liberty. Indeed, while religious liberty protections provide us with a strong freedom of conscience, they are not enough to assure a staunch defense of truth and lasting protections. As Ryan Anderson has argued, religious liberty alone is not enough to fight off the progressive onslaught. Instead, “we need a more holistic approach” that will “protect all people and all the various goods and interests at stake.” The only effective response to innovations in marriage and sex is a fight on the truth of the matters. Religious liberty does not provide us with the tools to accomplish this goal. Unless conservatives move beyond this purely defensive position, all protections will be slowly eroded until no land remains for religious persons to stand on.

The turn of social conservatives to religious liberty finds deep historical roots. Indeed, one can easily point to the voyage of the Mayflower and the desire of a persecuted religious minority to gain a place of refuge where they could freely worship. Similarly, Cecil Calvert established the colony of Maryland to provide a safe haven in the New World for English Catholics. While neither of these examples resulted in perfect religious liberty—the settlers of Massachusetts opposed any religious dissent and the Catholics of Maryland quickly lost power to the overwhelmingly Anglican settlers, thus losing the ability to freely practice their faith once again—both laid the foundation for a nation built on religious liberty.

By the time of the American Founding, the need for religious tolerance was a widely held belief. In the Virginia Declaration of Rights penned by George Mason in 1776, for example, religion is described as “the duty that we owe to the Creator.” As such, religious faith “can be only directed by reason and conviction, not by force or violence,” thus “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Mason’s sentiments would later be reflected in the Virginia Statute for Religious Freedom penned by Thomas Jefferson and James Madison’s “Memorial and Remonstrance.” Finally, the freedom of conscience was solidified in the First Amendment’s assertion that “Congress shall make no law… prohibiting the free exercise” of religion.

As vital as religious freedom is, it has never been meant to be used as the sole defense in the face of persecution. When religious liberty is approached in this way, a reliance on the government—and the courts in particular—begins to develop. The three major wins outlined above only serve to underscore this point: each was pointed to as proof that all was not lost and that some protections still remain. This attitude reflects the belief that conservatives can reverse societal changes by the Supreme Court through the Supreme Court itself, the dangers of which I have outlined previously.

The continued reliance on the Courts to protect conservatives in light of decision such as Obergefell v. Hodges and Bostock v. Clayton County underscores just how much conservatives have become entirely defensive in response to the latest in progressive innovations. This reliance assumes that the courts will always be ready to strike a blow against mass societal upheaval and in the defense of Truth. Such thinking blatantly ignores not only the most recent changes brought about by the Court, but also neglects to consider the history of the Supreme Court.

A quick examination of the cases that laid the foundation for Obergefell shows that the decision was not made entirely out of whole cloth when it was decided. Rather, it was the latest in a long line of decisions stretching back decades to the judicial activism of the Warren Court. Chief among these was Griswold v. Connecticut, in which the Supreme Court created a “right to privacy,” which was in turn was used to justify social activism in Roe v. Wade, Lawrence v. Texas, and finally Obergefell. The extension of protections on the basis of sex in Bostock is a natural extension of this tendency to create new rights through a reexamination of the text.

With the exception of Roe, the response to many of these decisions has not been to carry on the fight on constitutional or moral grounds. Instead, in the years since Obergefell, the debate over a constitutional right to marriage has mostly fallen silent as the results have largely been begrudgingly accepted. In response to Bostock, some Republican lawmakers even went as far as to praise the decision. Indeed, the primary dissent among conservatives rejected the legal reasoning in the decision but placed a larger focus on the impacts that the decision would have on religious liberty.

Even when conservatives seek to enter a legal reaction to innovations by the courts, they once again choose to focus almost exclusively on religious liberty protections. For example, much of the discussion post-Obergefell has focused on how religious individuals can escape participating in or seeking to endorse same-sex marriage. The most prominent of example of this is Colorado baker Jack Philips. Philips’ fight with the Colorado Civil Rights Commission made it up to the Supreme Court and was hailed as a win for freedom of conscience and those who dissent from progressive culture. At the same time, however, the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was only a limited victory and Philips has continued to face persecution for choosing to live according to his conscience.

All of this goes to show that we cannot live according to religious liberty alone. Indeed, a staunch defense against progressive encroachment does nothing to actually beat back the advances that progressives have made. Further, by its very nature, progressivism will always be expanding against the status quo, forcing the conservative further and further back towards the edge of the cliff. At some point the conservative must push back or accept an inevitable loss.

Indeed, this is the very state of things that Ryan Anderson correctly identifies when he writes that “a good ruling on the ministerial objection in Our Lady of Guadalupe, while important, does not even begin to address the many concerns here.” In fact, we should expect that in the coming years the Supreme Court will be called on to address the discrepancies between Bostock and Our Lady of Guadalupe. Justice Gorsuch’s majority opinion in Bostock even acknowledges this impending dispute with his assertion that the relationship between religious liberty and Title VII protections “are questions for future cases.”

Conservatives find themselves at a crossroads now more than ever before. The religious liberty wins at the Supreme Court provide a strong justification for continuing to hide behind the shield of religious liberty. Such a view, however, requires us to buy into the foolish notion that we will continue to receive protection as we retreat from society. Instead of relying on religious liberty alone, we must turn the fight to first principles and defend absolute Truth at all costs. Religious liberty, as important and essential as it is, can only go so far. In order for conservatives to have any success in the battle for the soul of America, the limits of religious liberty must be acknowledged, and a new path must be forged.

About the Author

Ryan Lanier is the Editor-in-Chief of American Discourse.

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