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Freedom of Religion and the Fog of Culture War Print E-mail
By Francis J. Beckwith   
Friday, 08 June 2012

As others have ably documented, the Obama Administration has, through policy and practice, shifted the Executive Branch’s understanding of religious liberty to something it calls “freedom of worship.” Apparently, this concept differs from “freedom of religion.”

Freedom of worship means the right to worship whomever or whatever one chooses. So, going to Mass on Sunday is an activity protected by this liberty. This understanding treats religion as a purely private activity associated with church services, prayer, Sunday School, preaching, doctrinal inculcation, etc.

Freedom of religion, on the other hand, is a much richer concept, for it treats religious belief as it is actually lived out in real theological traditions. Take, for example, the controversial HHS mandate over which several entities, including the University of Notre Dame, have filed suit.

Because the mandate requires that employers, including Catholic ones, provide in their health care plans for their employees contraception, non-therapeutic sterilization, and abortifacients, and because using and materially cooperating with the use of these items violates the moral theology of these employers, they see the mandate as a clear violation of their freedom of religion.

But if we replace freedom of religion with freedom of worship, the government has done nothing wrong in this case. For the state is not forcing Catholics to worship Baal or attend a Lutheran service against their wills. All it is doing is requiring them to provide to their employees, who do not share their faith, access to services that are secular and thus under the legitimate authority of the state. Because no one is forcing individual Catholics to use contraceptives or abortifacients, or even undergo non-therapeutic sterilizations, in their private lives, the HHS mandate is religiously neutral.

By substituting freedom of religion with freedom of worship, the Obama Administration and its allies are able to confiscate large swaths of cultural real estate without ever making an argument as to why it is justified in doing so. Let me explain.

Theological traditions not only concern themselves with worship, but also with many moral questions that arise from their philosophical anthropologies. Among those questions is the proper function of our sexual powers. According to many religious traditions, certain intimate activities are gravely immoral, and it would be gravely immoral in many cases for anyone to cooperate with the performance, celebration, or explicit approval of these activities.

Just the other day a state appeals court in New Mexico upheld the $6600 fining of a photographer who refused to provide her services for a lesbian couple’s commitment ceremony. (Technically, as the court states, it was a same-sex “wedding,” though New Mexico does not presently recognize same-sex “marriage.”) The photographer maintained that her Christian beliefs did not allow her to practice her artistic craft in celebration of an activity that she believes is gravely immoral. The court argued that the photographer’s refusal ran afoul of a state law that banned businesses that are public accommodations from discriminating based on sexual orientation.

Of course, the photographer’s understanding of marriage and our sexual powers had nothing do with sexual orientation, for she would have been more than happy to participate in a male-female wedding even if the partners identified themselves as gay and lesbian. The court did not buy this argument, for it claimed that because the U.S. Supreme Court allegedly does not distinguish between conduct and status, then neither should it. But this analysis seems to cut both ways, for the photographer identifies herself as a Christian and for that reason believes that certain conduct is inconsistent with her chosen vocation.

After all, the New Mexico Human Rights Commission that had originally fined her is a government agency that conducts its business in a government building and thus is a public accommodation. By refusing to connect the photographer’s status (as a Christian) to the photographer’s conduct (as a Christian), the commission practiced the very sort of discrimination that the appeals court said was forbidden under Supreme Court precedent.

We would readily see the logic of the photographer’s plight if she had declined to render her services at the honeymoon rather than the commitment ceremony, or if she had refused to contract with a legal brothel that required her skills in its creation and distribution of an employee yearbook. Just because same-sex intimacy is conduct that ordinarily accompanies one sort of sexual orientation, and just because sexual intercourse is conduct that ordinarily accompanies another sort of sexual orientation, it seems that we can see why it would be unjust to require the photographer to witness the honeymoon or participate in the production of the yearbook. This is because a particular type of conduct typically accompanies certain religious beliefs.

So, we have not entirely lost our right intuitions about the nature of religious beliefs and what they typically teach their adherents about the meaning and nature of human life including how we should treat our sexual powers and what they tell us about the nature of marital union.

When the fog of culture war is lifted, we can see clearly that by itself freedom of worship does not properly reflect the richness and complexities of religious belief. It is, at the end of the day, a poor substitute for freedom of religion. To embrace only freedom of worship is to abandon what has for generations been properly called The First Freedom.

 
 
Francis J. Beckwith is Professor of Philosophy and Church-State Studies, Baylor University. His most recent book (with Robert P. George and Susan McWilliams) is the forthcoming A Second Look at First Things: A Case for Conservative Politics, a festschrift in honor of Hadley Arkes.
 
 
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Comments (13)Add Comment
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written by Andy McGaw, June 08, 2012
This is a very good commentary. What we have as a result is one world view that is increasingly being enforced by the State (be that US, UK, Australia) that is contrary to most religious world views - be they Catholic, Hindu, Muslim or Jain - this is a very serious & rather scary development. Most secular people would support the shift from freedom of religion to freedom of worship.
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written by Dave, June 08, 2012
Thank you, Dr. Beckwith, and Andy McGaw is right: most secular people are supporting the shift. A secular neighbor of mine turned away in disdain when I mentioned the HHS mandate with the remark, "no more culture wars: we're not going to talk about the social issues." The Left considers that it has one and now it goes about its business of enforcing compliance. Some toleration.

In view of Brad Miner's warning yesterday I prescind from saying more.
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written by Manfred, June 08, 2012
Fine article. Some quick points:

The lawsuits against the HHS Mandate by ALL the Catholic entities constitutes the largest Freedom of Religion lawsuit in the hstory of the U.S.

In order to be reassured, one only need go to youtube and SEARCH: Kathleen Sebelius v. Trey Gowdy (R-S.C.). In five minutes you will witness one of the finest civics lessons ever taped.

BTW, Freedom of Religion is an American term. It was introduced into Catholic parlance by D.H. in Vat II. Only Catholicism is the True religion and that was taught for two thousand years.

P.S. There is a man in FL who has 38 members in his "church". We know of them as he burned a Quran in public. Is anyone willing to place his "church" on the same level as Catholicism?
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written by Randall, June 08, 2012
@Andy McGaw
What's worse is that a lot of "religious" people have supported the shift from freedom of religion to freedom of worship. They might attend a religious service of some kind for an hour on Sunday but live practically as atheists the rest of the week. It's as if God has his place in church on Sunday but nowhere else.
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written by Tony Esolen, June 08, 2012
The affront here is also deeply personal. If somebody wanted me to provide a cake, with the writing, "Congratulations Joe and Steve," that would be bad enough, but in this case the person has to become part of the celebration by witnessing the festivities, capturing them on film, setting the principals up in their best poses, and so forth. It is akin to making her be a part of a nudist ceremony, not by undressing, but by witness. The women who are forcing this issue have not the slightest sympathy for the woman they are thus oppressing.
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written by Mark, June 08, 2012
Western governments are aggressively moving to eliminate Christianity and under the name of secularism are instituting policies and laws that are diametrically opposed to the teaching of Christianity. It is in fact anti-Christ or Satanic. Furthermore they do not take a neutral stance as the case of the photographers shows, but rather that all must support their doctrine or lose the ability to work and earn a living. In one province in Canada a law was passed that 100% of marriage commissioners had to agree to perform same-sex marriages (which make up less than a fraction of 1% of marriages). The prophetic words of Revelation 13:17 (No man will be able to buy or sell unless he has the mark of the beast on his forehead or hand) are coming true. Unless you think or act in accordance to the ways of Satan, you will not be able to earn a living.
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written by Seanachie, June 08, 2012
U.S.citizens have allowed the left to re-define whatever it pleases and everybody is expected to abide by its re-definitions. For example, abortion supporters are "pro-choice"...aberrosexual unions are "same sex marriage"...and, as you mention, "freedom of religion" has been contorted by the left into "freedom of worship." A sympathetic media and academe echo, even amplify, the left's re-definitions. Here is what the U.S. Constituion, First Amendment, says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". Don't see "freedom of worhsip" mentioned, do you? The UofC must cringe when Obama claims to be a faculty member with Constitutional Law expertise.
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written by David Hiersekorn, June 08, 2012
I'm so torn on this issue. I agree with your analysis on the worship vs. religion issue. I would be opposed to forcing people to violate conscience.

However, my wife worked for 10 years for a Catholic-affiliated hospital. We could not get pregnant without fertility. However, the hospital used a religious exemption to exclude fertility treatment from our medical insurance.

So, we paid out of pocket for the fertility treatments, which were PROVIDED BY THE CATHOLIC HOSPITAL.

In truth, the "Catholic" hospital did not employ exclusively, or even primarily, Catholics. They don't even seek to hire Catholics. I think that, at a minimum, if a religious employer wants to claim the exemption, they should have to disclose in the hiring process that they offer a faith-defined subset of employee benefits.

Quite honestly, if my wife had been told that fertility was excluded, she would have found a different job. And, I suspect that applies to a LOT of people around the country. I'm fine with a religious exemption, but employers shouldn't be allowed to "hide it under a bushel" during the hiring process.
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written by Scotty Ellis, June 08, 2012
Dr. Beckwith,

What is the line between religious activities I assume you believe law should forbid or interfere with (such as, in the most radical extreme, human sacrifice) and those it should not? After all, I am fairly sure that even for you the issue is not really about "religious beliefs" as such, but certain sorts of religious beliefs (namely, your own, and those closely enough aligned to your own). You would, I can only assume, be quite ready to allow the government to interfere in a number of other situations regardless of their religious basis? Then what is the dividing line?
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written by Michael Paterson-Seymour, June 08, 2012
I rather fancy “freedom of worship” is a translation (and not a very happy one) of “La Liberté des Cultes,” a phrase that figured prominently in the French Revolution and, more or less, ever since. It was particularly used by those who opposed the legal monopoly of the Catholic Church. Nowadays, it means “‘the independence of the political authorities and of the different spiritual or religious persuasions [“options” is the French word]’ (This signifies an absence of political intervention in religious matters and an absence of religious sway over political authority)” This is known as laïcité.

The expression is rather equivocal. “Le culte” means adoration or worship; it also means religion, particularly, but not exclusively, in the sense of denomination (“Le culte juif = the Jewish religion) It does not have the pejorative overtones of the English word “cult,” for which the French equivalent is “La secte.”
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written by John, June 09, 2012
@Scotty

I think the Religious Freedom Restoration Act establishes a pretty reasonable line:

Section 2000bb-1. Free exercise of religion protected
(a) In general
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Also, you write, "I am fairly sure that even for you the issue is not really about 'religious beliefs' as such, but certain sorts of religious beliefs (namely, your own, and those closely enough aligned to your own)".

In saying that you are "fairly sure" that Dr. Beckwith's concern is "not really about" the general principle of freedom of religion for all Americans, but simply his own and those "closely aligned" with him you seem to impute or insinuate that his concern for freedom of religion is pretense for freedom of his religion.

If that was not your intent, I apologize, but that is how I interpreted that sentence. If it was your intent, I wonder how you became "fairly sure" Dr. Beckwith was "not really" concerned about freedom of religion for all Americans?

Would you be so kind as to clarify?

Thanks.
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written by Scotty Ellis, June 09, 2012
John:

I am wondering about where Dr. Beckwith would have the line drawn. Let's say I am an employee of a religious institution. What things should the law allow my employer to not provide for me that it would otherwise have to provide for me? What if I am a customer seeking services or goods from a Catholic provider; what laws and regulations governing those services or goods ought the provider be allowed to ignore?

We are led back to my initial question: what is a compelling government interest? Clearly, proponents of the health care act in question believe that it is a compelling government interest that everyone have access to certain medical devices, procedures, and drugs the use of which is forbidden by certain faiths. So, then, why doesn't the act fall under Section B of the religious freedom restoration act? Clearly, such a thing would hearken back to precedents, with which I am mostly unfamiliar (I only know that the government was not allowed to forbid native Americans from smoking peyote).

As for my interpretation of Dr. Beckwith's intent, I am merely extrapolating from the fact that the majority of Catholics now engaged in this fracas would probably not be so gung-ho if their employers were free to not cover, say, blood transfusions, as part of a religious exemption. There are plenty of religions that have various taboos, prohibitions, and so forth, and I highly doubt Beckwith would be willing to support a (hypothetical) fight supporting their rights vis a vis their beliefs.

I will give you a radical example. Let's say that I am a member of the Sect of the Sacred Widget, and that one of the laws left behind by the great Widget was that "none shall cook meat; nay, thou shalt eat thy meat raw and uncooked." I decide to open a restaurant - and, moreover, to make it a specifically Widgetian restaurant. If I chose to follow my sacred rules, I would quite quickly run afoul of the law, which would require me to cook my meat to certain specifications before serving it; that is, my choice to offer a particular service to the public trumps my religious beliefs, and I am required to perform certain sorts of acts in order to provide that service. The law protects the public whom I am serving before it protects my right to not cook my meat. I doubt Dr. Beckwith would come to my aid and argue that I should be allowed to serve raw beef to customers to suit my religious beliefs.

So it comes down to the specific issue at hand rather than some grand notion of "freedom of religion." Both sides agree to the right to religious freedom. What differs is the interpretation of the specific matter at hand. Proponents of the act see the offending services as an integral part of medical services in general, and thus see it as a vital part of Americans' right to health care; operating in the public (as opposed to within the bounds of a religious niche) therefore trumps the religious argument in a manner similar to my extreme example. Of course, opponents disagree that this right to certain sorts of services is fundamental.

Therefore, I encourage anyone opposing the act to drop the pretense that this is primarily a religious freedom argument. It is not; it is an argument over a very specific belief, its effects on the public good, and the right (or non-right) of all Americans to certain sorts of services (through their insurance). I think these are the more sensible terms of the matter.
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written by John, June 09, 2012
A man once advised me to always assume good intentions, so I'm sure you mean well.

That being said, I must say I think it unfair of you to conclude, based on an "interpretation of Dr. Beckwith's intent", which you've arrived at by "extrapolating" from a "fact" you've deduced from a hypothetical, the outcome of which you admit "would probably" occur, but not certainly, that Dr. Beckwith, who obviously falls into the "anyone opposing the act" category is holding up only the "pretense" of concern for religious freedom, the imputation being that he is really only concerned about himself and his coreligionists. A natural train of thought would lead one to believe that such a man is dishonest.

I have no reason to believe Dr. Beckwith is dishonest. I hope you don't either. But the drift of the argument you're making might lead one to believe that you think him intellectually dishonest. I see your point. I think it has merit. I just don't think you need to "go there" in order to make it.

As for whether or not the HHS mandate is the least restrictive means of furthering a compelling governmental interest, I look forward to seeing the Obama administration make the argument that it is. Maybe they've been spending all the time they're not defending DOMA preparing to get hammered on the HHS mandate. =)

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