In light of Indiana’s passage of an amended state-level version of the RFRA,  Cornerstone  asks this week’s contributors to address the following questions: To what extent should the religious freedom of small business owners protect them from having to act against their consciences? Would such protections open the door to wide-ranging and unjust discrimination against homosexuals, as many fear? What does a cost-benefit analysis reveal about RFRA legislation on the state level? What is at stake in Obergefell v. Hodges , and how does the case relate to state RFRAs? To what extent would a Supreme Court decision in favor of same-sex marriages impede free religious exercise?

By: Ralph C. Hancock

The Church of Jesus Christ of Latter-day Saints took a very significant step into the political arena this past January by holding a news conference to urge balancing “religious freedom protections with reasonable safeguards for LGBT people—specifically in areas of housing, employment, and public transportation.” Elder Christofferson in his brief introduction made very plain that this practical, civic accommodation did not signal any doctrinal shift regarding Church teachings on marriage and sexuality: “We are announcing no change in doctrine or Church teachings today.” The point, he said, is rather to “seek for solutions that will be fair to everyone.” And Sister Marriott welcomed the end of “centuries of ridicule, persecution and even violence against homosexuals,” and urged recognizing “such basic human rights as securing a job or a place to live.” But she immediately added that “the Church of Jesus Christ of Latter-day Saints believes that sexual relations other than between a man and a woman who are married are contrary to the laws of God.”

I think Elder Holland offered a key to understanding the Church’s action in his striking call to “the highest level of statesmanship,” a statesmanship that will require “wisdom and judgment, compassion and fairness.” Statesmanship indeed requires “wisdom and judgment,” since the application of “compassion and fairness” cannot be decided by a simple and one-sided ideological demand for some absolute moral equality that would disqualify all other moral judgments. Statesmanship is all about balancing interests and opinions according to actual circumstances, according to the political and social facts on the ground at a particular moment in a people’s history. But of course this balancing presupposes a well-grounded sense of priorities and clarity on basic principles embraced by the people in question. Elder Holland and Elder Oaks could not have been clearer on their principles and priorities: The Church’s main concern is clearly with religious freedom, which does not mean merely the right to believe privately whatever you want, but includes the right of organized religions or “religious communities to function according to the dictates of their faith.” Elder Holland applied this right very pointedly to “church schools,” and in fact all but named BYU in his reference to “employment” and “honor code standards” at such schools. And Elder Oaks listed four concrete examples of “attacks on religious freedom.” Interestingly, the first two of these were cases of actual legal prejudice against religious groups or persons, while the latter two were examples of public intimidation, that is, the mobilization of opinion to damage the interests of persons (a delegate to the Olympics, and a CEO) who dare to resist the ideological version of “rights” that the Sexual Left insists upon. 

The Church’s statement addresses immediate concerns of state legislatures, but the more fundamental scope of its statesmanship concerns the deepest movements of public opinion. The Church has made it clear to its own members as well as to the general public that it is ready to be generous in offering respect for certain legal rights of sexual minorities, but only where such respect is consistent with our fundamental interest in religious freedom. In other words, the Church has sought to exercise statesmanship in offering to balance a carefully defined set of legal rights with the recognition of the fundamental importance of religious freedom.  
  
Responses in the media and from gay rights activists have been all-too-predictable. There are, on the one hand, the more patient pro-gay enthusiasts who give the Church a pat on the back, or rather on the top of the head, and express appreciation for a step in the right direction. But more common is the dismissal of the Church’s statement as worthless verbiage, since the Church has not budged an inch from its fundamental moral position (all non-marital sex is wrong) or from its firm commitment to marriage as between a man and a woman. 

The difficulty facing the Church’s attempt to find a workable “balance” between religious freedom and the now powerful gay-rights agenda is that the increasingly influential hard Left will not be satisfied with being left alone. Terms like “fair” and “human rights” seem reassuringly consensual, but, alas, they mean different things to different people. As Jeffrey Rosen has just explained in The Atlantic (“The Dangers of a Constitutional ‘Right to Dignity’”), the appeal to “dignity,” which derives largely from Justice Kennedy’s assertion of a “right to define one’s own concept of existence” in the Casey decision of 1992, is so elastic as to be extremely problematic as a constitutional principle.

In fact Rosen’s intention is to warn his friends on the left that dignity might cut any and all ways—that it might be used to defend rights of gun-owners for example, as well as conservative Christian self-definitions. But in fact the elasticity of dignity has a decidedly leftward tendency, for fundamental philosophical and spiritual reasons. The centrality of dignity as a moral and political principle may well have Christian resonances for some people, but the term was developed to convey precisely the autonomy of humanity, the liberation of claims of human worth from all dependence on traditional and religious authority.  The appeal to “dignity” as a kind of free-standing absolute of humanistic morality is thus by no means neutral as between traditionalist believers and defenders of new rights of sexual expression.   

(In fact Jeffrey Rosen’s fundamental allegiance to dignity as an unimpeachable secular-humanistic ideal is very clear in his casual and complete dismissal of all arguments against gay marriage.  He cannot even imagine that the motives of “moral disapproval or preserving tradition” might have very substantial rational content, and so he dismisses the aim of “responsible procreation” as manifestly “implausible… essentially made up for the purposes of litigation.” If humanity’s autonomous dignity is the whole sum and substance of morality and justice, then any respect for limitations on individual sexual expression can only be regarded as the most benighted prejudice.)  

For the ideology of the Sexual Left, then, “fair” can only mean public recognition of the moral dignity of any and all sexual choices, or identities, or chosen identities. But LDS leaders were obviously offering something short of this recognition. 

How long the notion of “fairness” can be stretched to accommodate these two sides we will have to watch and see.

Another notable statement of a kind of Mormon moderation on the religious freedom/gay rights question was offered by the Church’s most prominent political figure, Mitt Romney. Appearing recently on Fox News Sunday, Romney addressed the recent controversies surrounding religious freedom laws in Indiana and Arkansas, both cases in which Republican governors felt the need to call for fixes to the work of Republican legislatures. The former Republican presidential nominee provided a nice capsule of the emerging moderate orthodoxy on this question: Religious freedom is fundamental for Americans, and so is non-discrimination; therefore, wisdom consists in gi
ving each of these fundamental principles its due.

This is an attractive formula, and it may indeed be the best that can be managed in the present political and social climate. But the terms of this settlement should give pause to anyone who examines them carefully. For is non-discrimination really a fundamental principle on a par with religious freedom? And, for that matter, do we even know what “non-discrimination” means, or what it implies and portends?

To be sure, “religious freedom” itself is a far from unambiguous term, but its status as our “first freedom,” both chronologically and logically, is clear enough. As Archbishop Chaput of Philadelphia recently argued at Brigham Young University, the freedom of churches (and not merely of private, individual consciences) is essential to limiting the state, because they nourish our awareness of an authority higher than any human power. 

If the imperative of non-discrimination now seems also to have a sacred status, this is clearly owing to its association with the noble struggle against cruel racial prejudice, a stain on our nation’s honor inherited from our original sin of slavery. This most worthy cause has decisively marked our contemporary political sensibilities and now provides the definitive template for the progressive understanding of moral and political action. It thus suffices to classify a political or social interest as a replay of the great movement for civil rights in order to guarantee its moral bona fides and to insulate it from critical examination. The logic of this ideology is simple enough: It was wrong to discriminate against African-Americans—so wrong that it was right to use the force of the federal government to prevent such discrimination, and this includes not only on the part of government but also that committed by private parties; and so now it follows that it is right to use whatever social and governmental means may be necessary to suppress anything anyone succeeds in naming discrimination. 

Once this logic of the high principle of non-discrimination is unpacked, I trust it is obvious that this cannot be good news for our erstwhile First Freedom. We should first note that discrimination has not always been a bad word. In fact, to discriminate is to distinguish, or to discern relevant differences; discrimination is thus coeval with reasoning. Moral reasoning, in particular, requires judgment and therefore discrimination; notably, it requires judgment between good and evil, noble and base, right and wrong. Christianity’s genius lies in part in leaving final judgment to God, but it in no way eliminates the need for moral judgment; on the contrary, the Christian religion gives the weight of eternity to fundamental moral judgments or discriminations. Notable among these judgments are those that concern sexual morality and the constitution of the family. It follows that the emerging regime of “non-discrimination” as the highest moral and political principle is ultimately incompatible with religious freedom for Christians. 

Of course we live in a pluralist society, which is to say a society in which fundamental principles are contested, and in which consensus is hard to achieve. But this is to state the problem and not to provide a solution. For those progressives who embrace non-discrimination as the highest moral-political principle (and their influence exceeds their considerable numbers), a live-and-let-live policy will never be enough. For them, the Christian owners of a small pizza shop preferring not to cater a homosexual wedding is the moral equivalent of a white-only drinking fountain or a back-of-the-bus section for “negroes.” No matter that to compare the circumstances of African-Americans in 1950, disadvantaged in a hundred ways and persecuted from all sides, to a gay couple being turned down by one pizza shop in 2015 is obviously a stretch; the question disappears as soon as one assents to the fundamental principle of non-discrimination. That many today not only disagree with the pizza owners, but are eager to use the power of government to crush them, should remind us that all fervent religions, including that of non-discrimination, will have their victims. 

The sexual-liberationist Left demands, not simply legal protection, but moral respect. It will not be satisfied with the legal protection of rights to housing, employment, and public transportation, but will feel excluded and persecuted until full public recognition of the moral respectability of homosexuality is secured. More generally, it is the whole Christian (and not only Christian) worldview that requires sacred restraints on sexual expression that must be relegated to the private realm and stripped of all public respectability and public influence. Gays and the whole sexual-liberationist Left cannot rest until the public square is re-ordered to guarantee that the lifestyles they choose command full public respect. When dignity is understood to have no source but humanity, then its defenders cannot tolerate public dissent. When humanity takes the place of God as the ultimate source of life’s meaning, then any questioning of this source appears as an intolerable blasphemy. Obviously it is not pizza that is at stake when a pizza shop-owner declines to contribute to the celebration of homosexuality. What is at stake is a purely self-grounding human dignity as the one true answer to the mystery of existence. And from this point of view every public questioning of this one true ground must be taken very seriously. To stamp out the public respectability of any appeal to something higher than this secular dignity is the ideological agenda that increasingly defines the Left in Western democracies and that plays a dominant role among our Democrats. 

LDS Church leaders deserve all praise for helping to craft an accommodation between a religiously conservative state legislature and defenders of LGBT interests, but it seems unlikely that this reasonable compromise will long succeed in stemming the ideological tide that fundamentally threatens religious freedom. The Left’s ideological demand for the public and authoritative recognition of liberationism as our new implicit sexual constitution does not admit of any balancing. As Robert George has pointed out, the promise of a “Grand Bargain” on the question of defining marriage—the notion that religious institutions would be left alone if they would just allow this little redefinition of marriage—has proved illusory. So the stakes of statesmanship may soon grow even larger, as institutions such as BYU (and even LDS temples?) meet the force of this ideological tide. At this point the language of compromise and balancing may seem less relevant. But at least the Church of Jesus Christ of Latter-day Saints will be able to say that, like a statesman, it gave the rhetoric of balancing its best chance to accommodate the major interests and opinions now pressing their claims in the public square. What statesmanship will look like in the event the present hope for balance should be disappointed—well, that’s what we need to be thinking about.

Ralph C. Hancock teaches political philosophy at Brigham Young University.

Portions of this article were drawn from  items previously published in Deseret News and Meridian Magazine. This piece was also posted on April 30,&n
bsp;2015 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.