In recent political memory, religious liberty was a value that brought together conservatives, libertarians, and progressives. As recently as 1993, the federal Religious Freedom Restoration Act was passed by a nearly unanimous Congress and signed by a Democratic president. Today, the same value is a political liability. Bakers, photographers, and florists are being ruined, adoption agencies shuttered, schools threatened with loss of accreditation and nonprofit status. So what happened? Why is religious liberty now losing so much ground?
As I explain in my just-released book, Truth Overruled: The Future of Marriage and Religious Freedom, three historical developments explain our current predicament: a change in the scope of our government, a change in our sexual values, and a change in our political leaders’ vision of religious liberty. An adequate response will need to address each of these changes.
First, government has changed. The progressive movement gave us the administrative state. Limited government and the rule of law were replaced by the nearly unlimited reach of technocrats in governmental agencies. As government assumes responsibility for more areas of life, the likelihood of its infringing on religious liberty increases. Why should government be telling bakers and florists which weddings to serve in the first place? Why should it tell charities and religious schools how to operate and which values to teach? Only a swollen sense of unaccountable government authority can explain these changes.
Second, sexual values have changed. At the time of the American Revolution, religion and liberty were so closely linked that Thomas Jefferson could affirm, “The God who gave us life, gave us liberty at the same time.” Meanwhile, his French contemporary Denis Diderot, expressing sentiments that would culminate in a very different revolution, declared that man “will never be free until the last king is strangled with the entrails of the last priest.” In our own time, however, the sexual revolution has shattered the American synthesis of faith and freedom, setting religion at odds with “liberty”—or more accurately, license. Now bakers, florists, adoption agencies, and schools that uphold what Americans have always believed about marriage find themselves at odds with the law.
Third, religious liberty has changed. Our Constitution protects the natural right to the free exercise of religion. But some liberals are trying to drastically narrow that right by redefining it as the mere “freedom of worship.” If they succeed, the robust religious freedom that made American civil society the envy of the world will be reduced to Sunday-morning piety confined within the four walls of a chapel. They have even gone so far as to rewrite the U.S. immigration exam to say that the First Amendment protects “freedom of worship” rather than the “free exercise of religion.”True religious liberty entails the freedom to live consistently with one’s beliefs seven days a week—in the chapel, in the marketplace, and in the public square.
These three changes represent a rejection of the American Founding. Progressive politics and a radical view of human sexuality are combining to coerce compliance at the expense of a bedrock human right. And of course much of this has been enabled by judicial activism, as in Obergefell.
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o how do we fight against this onslaught? We start by fighting for courts to interpret and apply our laws fairly. Without a sound judiciary, no amount of public debate can ensure sound policy on issues like marriage and religious liberty, for the courts will always be able to refashion or discard what the people (through their representatives) have achieved. This is why the work of groups such as the Federalist Society, which opposes such judicial activism, is so important.
Outside the courtroom, our best strategy for fighting governmental overreach is to fight for more limited government. The less power government has, the less room there is for abuses of power. The alliance between social and economic conservatives is not just a marriage of convenience. They share important principles, and they face a common enemy—the expansion of government beyond its proper scope. This is why the work of an organization such as the Heritage Foundation, which opposes ever-expanding government, is so important.
Limited government and religious liberty are best served when human laws reflect the “laws of nature and of nature’s God,” as the Declaration of Independence puts it. All men are created equal and are endowed by their Creator with a right to life. Mankind is created male and female, and marriage, by nature, is the union of man and woman. Only by redefining these concepts according to desire rather than nature is it possible to concoct a “right to choose” that extends even to the killing of an unborn child or an endlessly malleable concept of “marriage.”
Restoring a sound understanding of human nature and the laws of nature will be the work of the many organizations and groups—churches and synagogues, primary schools and universities, for example—that constitute civil society. Among these groups, public interest law firms such as the Alliance Defending Freedom have an important role. We need groups like this to push back on the sexual revolution and remind people of the law written on their hearts—a law that points the way to true, ordered liberty, not license, when it comes to human sexuality and the family.
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oth the Bible’s moral principles and reason require us to conform our desires to transcendent moral truths grounded in our nature as human beings, rational animals. The followers of postmodernism seek to re-create nature in accord with their desires, while the followers of progressivism use the power of government to make everyone else con- form to the desires of elites, who know best. These ideologies promote the satisfaction of desire even while trampling true natural rights and liberties like the free exercise of religion. And that’s where the work of groups like the Becket Fund for Religious Liberty proves so crucial. They insist against limiting religion to worship, and they defend its free exercise against encroachment in the name of untrammeled desire.
So the three steps that have undone core elements of the American Founding—progressive government and the administrative state, the sexual revolution’s elevation of desire, and the whittling of religious free exercise down to the freedom to worship—all need to be countered. Political organizations, religious and civic organizations, and legal organizations will have to play their roles in empowering the citizenry to reclaim their government and culture. I offer a roadmap for these groups to follow in Truth Overruled.
Without a return to the principles of the American Founding— ordered liberty based on faith and reason, natural rights and morality, limited government and civil society—Americans will continue to face serious and perplexing challenges. The dilemmas faced by bakers and florists and charities and schools are only the beginning.
