Independence Day concludes the Fortnight for Freedom mandated by the U.S. bishops, a two-week period of reflection and prayer on the defense of religious liberty that began on the vigil of the liturgical memorial of St. Thomas More. In July 2012, we may be grateful that none of us faces the headsman’s axe, as More did in Tudor England. But neither should we be indifferent to, or flippant about, the 21st-century threats to religious liberty that surround us. They have yet to bring anyone to today’s equivalent of the scaffold on Tower Hill, but they are already putting severe pressure on both believers and religious institutions.
That pressure is more subtle than it was in More’s day, and it involves a kind of governmental pincer movement. The first arm of the pincer aims to reduce religious liberty to a privacy right: a permission slip from the government to engage in certain recreational activities considered matters of personal taste. The second arm of the pincer—embodied in the Obama administration’s contraceptive/abortifacient mandate (which many Catholic entities are challenging in court)—aims to conscript religious institutions so that they become virtual departments of the government.
Between the two arms of the pincer, religious liberty is being subjected to a slow but steady wasting disease. Recognizing that disease is essential; so is an accurate diagnosis of its causes.
What are the sources of this new assault on religious freedom in full?
The pressure comes in part from a newly aggressive American secularism that is sadly similar to its counterparts in 21st-century Europe. There, secularism is not benign, tolerant and pluralistic, asking only that secular views have free play in the public square. Rather, 21st-century European secularism is intolerant, hegemonic and anti-pluralistic. It demands the entire public square for itself and tries to use the coercive power of the state to drive religious conviction to the far margins of society and public life. It is, in the pungent term deployed by the international legal scholar Joseph H. H. Weiler (himself an Orthodox Jew), “Christophobic.” That this new form of bigotry has at least something to do with ancient animosities over the Church-state alliances of Old Europe, no one should doubt.
Yet that is why its translation across the Atlantic is somewhat odd: for there is no “established Church” in American constitutional history against which 21st-century radical secularists can wave the bloody shirt. Nonetheless, contemporary American secularists of the sort found in prestige law schools and the U.S. Department of Health and Human Services are quite like their European counterparts: they do not seek an open public square in which all points of view are welcome; they demand secularist hegemony in public life. And they are quite prepared to throw some sharp elbows in getting what they want.
How has this new cultural phenomenon gotten a beachhead in our public life? In part, by surfing waves created by over six decades of confused Supreme Court rulings in First Amendment cases—rulings that have unbalanced “free exercise” and “no establishment” in matters of religion and public life. The Framers of the Constitution did not intend that their proscription of a national church (“no establishment”) should create a radically secular American public square; they intended “no establishment” to serve the cause of “free exercise.” The United States would build a hospitable and civil public space where differences could be engaged intelligently and tolerantly, and where all points of view were welcome. “No establishment” was the means; “free exercise” was the end.
Sixty-five years of Supreme Court rulings, however, have turned this inside out, such that “free exercise” has been reduced to a set of exceptions or exemptions within the overwhelmingly secular public space the federal judiciary has created since 1947. Wittingly or not, the Supreme Court has often aligned itself with the hegemonic secularists and the anti-pluralists, bringing its moral authority into play on their side of the debate.
As we conclude the Fortnight for Freedom, some serious work is before us: serious cultural work, serious legal work and serious political work.