Religious Liberty Under Attack

Religious liberty is under attack on many different fronts today. I focus here on only one: the possibility that American religious institutions may have to shut down if they do not comply with new federal rules concerning same-sex marriage and transgender lifestyles. 

This threat first came to light two summers ago in the case of Obergefell v. Hodges, the case that legalized same-sex marriage nationwide. During oral arguments, Justice Samuel Alito asked the Solicitor General of the United States whether legalizing same sex-marriage might eventually pose a threat to religious institutions that recognize traditional values. His response was:

You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.

The “issue” was, of course, predictable. Because religious institutions frequently and by their very nature discriminate (and have done so since their origins), the confrontation between the new anti-discrimination regime and traditional religious institutions would be unavoidable. Every religion involves teachings about what is right or wrong, sinful and holy. A non-discriminating religion is no religion at all. 

Nor are sexual norms merely incidental to religious beliefs and practices, something that can be cast aside (like the regrettable racism of some earlier Christian believers). Rather, heterosexual marriage is—among the orthodox anyway—one of the sacraments of the church and a sacred metaphor for the gendered relationship between Christ himself and his followers: Christ is “the bridegroom” (John 3:29), and his church is the bride (Ephesians 5:22-33). 

So the conflict was inevitable. But what would be the state’s strategy for compelling religious institutions to comply with anti-discrimination laws relating to same-sex marriage and transgender lifestyles? We now know.

Strategy 1

One strategy focusing on religious colleges and universities would rely on Title IX regulations, which were originally intended (in 1972) to ensure the equality of the sexes in sports, but which now affect virtually every aspect of higher education. Last May, the Obama administration simply announced that from now on, the word “sex” in Title IX would refer not to male or female, but to a student’s “gender identity,” which will be determined not by birth certificate or medical examination, but by the student’s “internal sense of gender.” 

The result is that if Christian colleges and universities do not immediately abandon all discrimination against homosexual and transgender lifestyles, they stand in violation of federal law and may—though this is not in place yet—lose access to federal funds, such as NEH, NES, and NSF grants, as well as the Pell grants that support the tuition of underprivileged students. 

Strategy 2

A second approach focuses on all religious non-profits, including churches, charities, universities, grade schools, hospitals, etc. We have already seen some of these organizations slapped with heavy fines for refusing to comply with certain provisions of the Affordable Care Act. The strategy now is to go after their federal tax-exempt status if they do not recognize same-sex marriage. For example, a religious school that offers housing for married graduate students and faculty, but not for same-sex couples would come under threat; or a charity that facilitates adoptions, but not for same-sex couples. 

This second strategy has not to my knowledge been deployed to date, but it has plainly been discussed. We find ourselves therefore in a time of great uncertainty. What should defenders of religious institutions do?

What to Do: Arguments and Prayer

We should begin by being clear about the fact that what we call “rights” are not unassailable fortresses that require no defense. Nor is any and every aspect of religious freedom a right. Tax-exemption for religious institutions is, for example, an age-old practice, but it is not a right. 

What this means is that we need to articulate sound arguments (not merely rely on rights and historic practices) if we wish to defend religious freedom in an age when public officials and even federal judges scarcely recognize its value. I offer two arguments—one economic, the other moral; one focusing on religion’s extrinsic value, the other its intrinsic value.

The economic argument is easier to advance in the wake of a recent study by Georgetown demographer, Brian Grim, about the impact of religion in the U.S. economy. Looking at the nation’s 344,000 religious congregations from all faiths, as well as religious schools, soup kitchens, addiction recovery programs and the like, Grim estimates conservatively that religious activity contributes about $1.2 trillion to the national economy every year. To put that in perspective, if American religion were a country, it would have the 15th largest economy in the world, ahead of 180 other countries in terms of value. 

This should be a sobering statistic for those who want to eliminate the tax-exempt status of religious organizations and curtail the practice of legal accommodations. Many religious organizations may have to close down if they were forced to pay federal taxes on all their transactions. Many donors would cease to contribute to such organizations if donations were not tax deductible. Similarly, many religious organizations such as schools and adoption agencies may prefer to shut down than to comply with federal laws that offend religious conscience, like ObamaCare and Title IX.

Let us imagine, ex hypothesi, what the cost to the American taxpayer would be if all religious organizations ceased doing their work and the federal government stepped in to pick up the slack. The figure would not be $1.2 trillion. It would be exponentially higher, because in order to recreate what is currently in place, the government would have to hire employees, build facilities, purchase networks of communication and transportation, buy insurance and healthcare, pay attorneys to establish procedures and handle disputes, etc. And in the end, the result would never approach the effectiveness and compassion of the faith-economy it replaces, because the faith-economy is undertaken voluntarily out of love and compassion. 

Now of course I have imagined an extreme and unrealistic case. Not all religious organizations will throw in the towel under increased legal and financial burdens from our government. But some will. And the thought experiment allows us to formulate a principle: The more the federal government interferes with the work of religious groups in our national economy, the worse off we all are. If the government does not take up where each group leaves off, the recipients of charity will suffer. If it does take up where the groups leave off, then taxpayers will suffer, and the charitable work will be done less well.

Now for the moral argument about the intrinsic value of religious practice. The freedom to engage in works of charity is the freedom to grow in certain ways. Spiritually speaking, charity is every bit as important for the giver as for the recipient. Through charity we learn the practice of love and the imitation of God. We learn to co-suffer with those who are poor, mournful, meek, and thirsting for righteousness. At the same time, charity builds ties of gratefulness and trust between giver and receiver, ties that are themselves intrinsically meaningful and humanizing. 

The practice of charity is in fact so intrinsically valuable, I would argue, that the freedom to practice it approaches a “right” all its own. From this vantage point, the problem with government interference in the nation’s faith economy is that it stunts the growth and harms the well-being of American citizens. We become morally degraded by having to abandon or curtail practices that make us human. In this case, for Christians, the Gospel mandate to love our neighbor.

One final thought, lest someone should think that we engage in charity when we pay taxes and allow the government to distribute goods and services in our name: acts of charity, in order to be such, must be voluntary and the agents must know what they are doing. Government taxation, by contrast, is compulsory and the taxpayer rarely sees the giving in action. Viewed from an external perspective, the result of government welfare might look similar to that of religious charity. Viewed from an internal perspective, they look nothing alike. 

I opened by warning that religious freedom is under attack. It most certainly is. And while we can and should appeal to historical rights and privileges, we cannot fool ourselves into believing these will spare us from the onslaught. We must give thought to the value of our own beliefs and practices. We all know that our faith is vitally important to our lives, but can we explain why—to others and ourselves? We had better try.

Forward in Christ

Proclaiming the Faith and Order of the Church, given to us by Christ.