Collateral Damage

Religious liberty is in danger; protections that were, not long ago, taken for granted, is now at risk of being swept away by a rising tide of hostility to the claims of believers not only to have a right to worship as they see fit, but also to live their lives in accordance with the teachings of their faiths. And this is a cause for great regret for those who value freedom, whether or not they actually subscribe to the religious doctrines which conflict with the ever-expanding regulations imposed by the state. This is the lament of Douglas Laycock, who, in a great article called “Religious Liberty and the Culture Wars,” seeks to explain this phenomenon and to push back against it.

Prof. Laycock argues that the current wave of hostility to religious liberty in the United States is the result of “culture wars” fought largely over matters of sexual morality ― access to contraception, abortion, and gay rights, including especially same-sex marriage. This is similar to what happened in France, where the Church’s prolonged hostility not only to the excesses but to the very core of the Revolution of 1789 produced a climate of hostility to religion which, in turn led to a very narrow conception of religious freedom. In America, the revolution to which (most) religious authorities have been unflinchingly hostile is the sexual revolution that started in the 1960s (and of which the gay rights movement is a development):

conservative churches in this country have persistently been on the losing side of this Revolution. They have opposed not just the Sexual Revolution’s excesses; they have opposed its core. Each of the remaining sexual issues — abortion, same-sex marriage, contraception, sterilization, emergency contraception — has the same fundamental structure: what one side views as a grave evil, the other side views as a fundamental human right. For tens of millions of Americans, conservative churches have made themselves the enemy of liberty. (29)

Others read at least some of these issues as matters of equality and discrimination, rather than liberty, but the bottom line is the same. Religion becomes the enemy, a danger, a sinister force that seeks to take away the most cherished rights of vulnerable citizens.

But on the other side too the claims are similar. For churches and for believers, the right to act on their religious views and duties are fundamental. For the pro-life movement in particular, the right to abortion (and some forms of contraception) is also an attack on the basic rights of the most vulnerable.

So both sides try to force the other to behave in ways they regard as morally right. On one side, there are “contraception mandates” and requirements that people who, for religious reasons, object to same-sex marriage, nevertheless provide their services for same-sex wedding ceremonies; on the other, attempts to ban abortion and same-sex marriage.

The conservative religious side is, to a greater or lesser extent, the loser in all of these fights. The danger is that not only its over-reaching claims, but all those of religious believers will be rejected. “Many disputes over the free exercise of religion involve unusual practices of small religions, unusual laws of little importance, or both” (32), but the arguments being developed to oppose religious claims on matters of sexual morality will make no distinctions. The weapons being forged for the culture wars are of such power that they will not allow the winners to take any prisoners even if they were inclined to do so. The conservative religious opponents of the sexual revolution will lose the war, but the liberty of all believers may well disappear as collateral damage.

Prof. Laycock urges both sides to stand down. They should defend their own freedom ― the freedom of same-sex couples to marry, the freedom of churches not to fund contraception ― but not require the other side to adopt their own standards of behaviour. Religious conservatives should not seek to ban same-sex marriage (just as they no longer seek, for example, to ban contraception); the secular side should not force service providers or professionals to do things they disapprove of, except in cases of local monopoly. In other words, live and let live. “We could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides” (41).

It will come as no surprise to those who have read my previous posts on the subject of law and religion that I share prof. Laycock’s worries and his normative conclusion. The attempts to force those who wish to live differently from us to live according to our standards rather than their own are a great danger to personal freedom. If they succeed in the religious realm, why not in some other? It is not only the religious or those whose views conflict with those of the religious who should be concerned here.

However, I wonder if prof. Laycock’s explanation for the recent hostility to religious freedom is not too narrow. The culture wars over sexual morality which he thinks to be cause of this hostility are mostly confined to the United States (because elsewhere religious conservatives are nowhere near powerful enough to make it a fight). The attacks on religious freedom are not. Prof. Laycock himself cites an op-ed by Doug Saunders in The Globe and Mail (which I have criticized here). In Québec, the freedoms of religious minorities are under threat from self-proclaimed secularists now governing the province, although the rearguard of religious conservatives remains free to conduct public prayers at town council meetings, and a crucifix still watches over the legislature’s deliberations. And in Europe too, freedom of religion is being curtailed, what with headscarf and burqa bans in France or the minaret ban in Switzerland. (Prof. Laycock links the French bans to the anti-religious climate which he traces to the Catholic church’s anti-revolutionary stance, but I don’t think it can explain the escalation of restrictions on religion in the last decade.)

And yet, “culture wars” are not a bad explanation for what is going on. Both in Québec and in Europe, hostility to religious liberty has a lot to do with a secular majority’s reluctance to accept within its midst religious minorities whose habits and appearance are different from its own. I’m not sure if something like that could be a fair description of what goes on in the United States. The problems prof. Laycock describes have nothing to do with immigration, though perhaps the increasing distance between the more-or-less-secular and the religious conservative parts of the American society is creating a somewhat similar dynamic.

Of course, it may be that the growth of the opposition to religious claims in the United States is quite unrelated to the same process elsewhere, and the two just happen to coincide. At most, the two movements exchange ideas and arguments, but each applies them for its own peculiar purposes. If so, prof. Laycock’s explanation may well be correct so far as the United States are concerned. But in today’s globalized and inter-connected world that would be somewhat surprising.

Be that as it may, prof. Laycock’s call to live and let live should be heeded everywhere, regardless of the precise local causes of anti-religious sentiment. Freedom is too important to let it be the victim of collateral damage of transient controversies. And though many people on both sides in debates about religious liberty regard themselves as really forcing their opponents to be genuinely free, they should realize that, not only will they not make them free by oppressing them, but they risk also losing their own liberty in the process.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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