Ruling in favor of Obergefell, the Supreme Court decided that states must issue a marriage license between people of the same sex, legalizing same-sex marriage in all 50 states. In this week's conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.
By: Patrick Deneen
Now that the decision has been rendered, the question is now “What next?” The outcome was not surprising; what happens next, however, is as predictable as it is troubling. Religious liberty is destined for the same fate as traditional marriage. As many perceptive defenders of faith have long understood, advances in official recognition of same-sex relations—including, but not limited to, marriage, adoption, employment law, education, tax law, etc.—would necessarily come into conflict with religious belief, believers, and institutions. Some prescient thinkers began organizing for this eventuality by advancing the case for strengthening religious liberty as a bulwark.
However, things have shifted radically since those efforts began. In the recent Indiana RFRA fiasco, we witnessed a coalition of same-sex activists and major corporations combining to eviscerate the Indiana law protecting conscience rights. The activists succeeded in tarring the very words “religious liberty” with the same poisonous taint with which the words “Jim Crow” are heard. Newspapers began reporting on “so-called” religious liberty or simply putting the words in scare-quotes, in order to indicate that they understood the words to be code for something else.
The plain fact of the matter is that not only did traditional marriage lose in Obergefell, but as several of the dissenting opinions ominously intoned, so did religious liberty receive notice of its demise. Defenders of each have partly failed to mount an effective defense, however, because both defenses have misunderstood the very nature of liberalism. Failing to see the way their defenses play by the rules of liberalism has blinded many from seeing that their defenses can’t win on liberal grounds.
Architects of the strategy to enshrine religious liberty protections into federal and state law believed liberalism’s self-description: a form of governance that was neutral to ultimate ends and allowed the greatest possible individual and institutional liberty in pursuit of ends diversely understood, so long as those forms of pursuit did not constitute harm to others. The liberal state was thus understood to be neutral to ultimate ends, allowing a flourishing of various, diverse, distinct, and plural ideas of the good. Liberalism, by this reckoning, is organized around “the fact of pluralism.”
This belief underlies one of the first works that laid out the rationale for bolstering religious liberty protections: The Right to be Wrong, by Beckett Fund founder Kevin “Seamus” Hasson. As Hasson’s subtitle—“Ending the Culture War Over Religion in America”—suggested, if the warring parties could simply agree to let believers believe without interference or preference, we could secure peace in our time. The liberal state could be the neutral arbiter, permitting wide and diverse religious beliefs, protecting the right to be wrong.
This view has come to the dominant position of those defending religious liberty. However, it was premised on a belief that liberalism itself could be understood to be “contentless,” itself holding no opinion toward the various ways that religious believers might be “wrong.” This belief continues to animate the work and efforts of those who work on behalf of religious liberty. These advocates have been surprised at the illiberalism of their opponents, that is, those who would deny expression of some forms of belief—particularly regarding opposition to same-sex marriage. Yet, this reaction is only warranted if liberalism was what they thought it was.
Liberalism, however, was never “contentless,” and its toleration was always limited to specific kinds of belief that would conform to deeper liberal anthropological assumptions. At the very outset of the liberal tradition promoting religious toleration, John Locke famously excluded Catholics from toleration because of their acknowledgment of a “foreign potentate.” Religious belief was acceptable to the extent that it gave primary acknowledgement of the state’s authority to determine the limits of toleration, and presumptively either that it was private (worship) or that its public expression comported with the basic assumptions and tenets of liberalism.
Liberalism has always been defined by a particular anthropology: that human envisioned in the state of nature—autonomous, self-owning, driven by interest, appetite, and will. It is a nominalist philosophy that pits humans against the natural order, encouraging them to become “masters and possessors of nature.” It is a materialist and economistic system of belief that shapes a people to become consumers. It is a voluntarist philosophy that teaches us that all relationships are chosen, fungible, born of utility, and revisable. It advances a view of liberty understood to be the absence of constraint rather than the cultivation of virtue that leads to forms of self-government. In short, it is hardly neutral.
Liberalism has always had a rich and thick content, and more aptly should be compared to…a religion. Indeed, liberalism is nothing but the reinstitution of a form of civil religion that mimicked many features of Christianity, including a recognition of separate spheres of church and state, an emphasis upon the dignity of the individual, and the presumption of a pre-political social state. But liberalism, in fact, advanced a re-definition of those features, the institution of a new form of belief that gradually replaced the religious forms that it mimicked. The purported decline of religious believers so prevalent in our time simply masks the fact that they have become full members of the Church of Liberalism, and demand fealty to the religion of the state. It is completely understandable to see why so many smart people have worked tirelesslyto secure religious liberty, but it is also tragic that they have often done so working blindly, unaware that their pleas do not work within a neutral set of political procedures, but from within the established Church of Liberalism.
Indeed, what we have seen in recent weeks, months, and years are titanic efforts by a variety of religious believers and allies to develop reasonable arguments in defense of long-held beliefs regarding conjugal marriage. Those arguments have been answered—first in the public sphere, and now in the guiding opinion of Justice Kennedy—simply by the word “love.” Accusations are now ubiquitous that continued belief in the privileged place of conjugal marriage is based upon mere irrational faith, animus, and bigotry. The reaction of defenders of same-sex marriage has been, quite simply, an invocation of faith commitment, without need for or even ability to make rational argument. Opponents to that position are heretics who must be suppressed, and claims to religious liberty—the right to be wrong—will be accorded all the respect that Christians were once given in the Colosseum.
It is time for those who work on behalf of religious liberty to recognize the true nature of our situation. I deeply respect and admire their work, but regrettably I believe it will fail. We live in a State with an established religion, and any beliefs that contradict that faith must and will be eliminated. We must cease to ask for the “right to be wrong,” and instead insist upon the right of Truth.
Patrick J. Deneen is the David A. Potenziani Memorial Associate Professor of Constitutional Studies at the University of Notre Dame.
This piece was originally authored on July 1, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.