Freedom of Religion and the Fog of Culture War

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 & Church-State Studies, Baylor University, and 2016-17 Visiting Professor of Conservative Thought and Policy at the University of Colorado, Boulder. Among his many books is Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (Cambridge University Press, 2015).