There’s little doubt that over the past several years there has arisen a hostility to religious liberty in our popular and elite cultures. Once those reliable liberal allies of religious liberty, such as the American Civil Liberties Union, realized that the sacramentals of the sexual revolution were on a collision course with the public practices of religious citizens and their institutions, it was a fait accompli that liberal support for the rights of the latter would quickly dissipate.
For this reason, the recent controversy over the Arizona bill that would have better secured the religious liberty of its citizens under the state’s version of the Religious Freedom Restoration Act (RFRA), was portrayed by the national media (including, of all outlets, ESPN) as an attempt by a state government to protect anti-gay bigots from being sued or prosecuted for unjust discrimination.
Although this depiction, as Hadley Arkes recently noted on this page, is clearly false, it stuck, precisely because elite and popular culture sees no conscience outside concupiscence. This is why for the contemporary secular mind, for example, the Muslim woman who refuses to remove her face covering for her driver’s license photograph is, like Beyonce at the Grammy Awards, merely exercising her “right of wardrobe.”
Consequently, if you cannot reduce your religiosity to some apparent right to self-expression or self-definition independent of any religious content or sacred tradition, then the secular mind has no category in which to place your convictions. And thus they are either not real or just some visceral prejudice from which the state has an obligation to disabuse you.
Some commentators, however, troubled by this increased hostility to religious freedom, have tried to console themselves with the fact that those advancing hostility claim, at least, to support “freedom of worship.” This means that as long as religious citizens confine their liberty to “worship” – those liturgical practices that occur within church, mosque, or synagogue – then they will not be bothered.
These commentators, of course, do not welcome this narrowing of religious liberty, for they know that it probably means the inevitable loss of tax-exempt status for religious institutions that fail to acquiesce on certain moral questions, as well as an increase in the number of cases where devout believers will have to choose between violating their consciences or violating the law (or the standards of their profession, e.g., a prolife physician being required to refer a patient to an abortion provider or a health-care facility that offers euthanasia services).
The desert around Nye: no conscience outside concupiscence
I do not want to be the bearer of bad news, but the most recent religious liberty transgressions – the ones involving bakers, photographers, florists, etc. – are in fact challenges to freedom of worship as well. In none of these cases were services denied because of anything about the religion, race, gender, nationality, or sexual orientation of the prospective customers. Rather, the providers declined services because the prospective customer requested that they cooperate with what the providers believe is an illegitimate presentation, and in some cases a mockery, of a liturgical event that has sacramental significance.
Perhaps the customer, like many Americans, does not see transcendent meaning in the event, since he associates a wedding as admittance to an institutional legal fiction that allows one access to nothing more than a cluster of political and social privileges not available to other friendships. So, given this understanding, it is not surprising that the customer sees the provider’s refusal as a negative judgment on the public legitimacy of his union.
Thus, it’s also easy to see why the customer would be offended by the provider’s refusal. But what the customer fails to see is that his subsequent demand that the government force the provider to rescind his denial is really a demand that the state force the provider not to exercise his freedom of worship, the liberty to participate or not participate in ceremonies that one believes have sacramental significance. Consider this example.
A brothel in Nye County, Nevada, where prostitution is legal, tries to procure the services of a local photographer. It needs her to take a group picture to be used for the business’s Christmas card. The photographer, a devout Christian, believes that Christmas is a Holy Day and that prostitution is deeply immoral. Should she have a right to refuse?
As should be well known, the major religions, including Christianity, provide means by which their adherents solemnize certain moments in their lives, each often corresponding to a significant transition from one stage to another. For this reason, many of us mark these transitions with liturgical events such as baptisms, bar mitzvahs, weddings, and burials, and most of us refer to how these are conducted as rites.
Thus, if the freedom of worship does not include the right to abstain from, or participate in, these activities without government coercion, as some commentators, such as Jonathan Merritt, have suggested, then we should be no more confident in the future prospects of “freedom of worship” than we are of “religious liberty.”