Indiana, gay marriage, and the liberal betrayal of American liberalism

It's been an eventful couple of weeks for the American experiment in self-government — with gay activists, many prominent Democrats, and numerous socially liberal business leaders from both parties squared off against millions of culturally conservative Christians over issues of homosexual equality and religious freedom.

So much for the end of the culture war.

While most of the country appears sharply polarized over Religious Freedom Restoration Acts passed (and then promptly amended) in Indiana and Arkansas, I find myself standing with the handful of center-left and libertarian commentators whose positions might be described as conflicted. I strongly support gay marriage and yet also believe it's essential to protect the religious freedom of those who reject it.

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This is a position that many on the pro-gay marriage side of the debate have a difficult time understanding. The most thoughtful objection runs like this: No one is suggesting that churches should be forced to perform or solemnize same-sex marriages, so no one's religious "free exercise" is being infringed or curtailed. Which means that the entire controversy, along with the push to pass RFRAs around the country, is either an effort to address an imaginary problem or (more likely) a pretext to allow bigots to persist in their anti-gay prejudice. Why on Earth would I or anyone else who cares about gay equality express sympathy for that?

It's a good question.

The beginnings of an answer can be found in a recent column by conservative writer Yuval Levin. Writing for National Review, Levin explains that the freedom that traditional believers are fighting for in Indiana, Arkansas, and elsewhere isn't primarily the right of religious "free exercise," but rather a freedom that flows from the First Amendment's other religion clause — the one that precludes the "establishment of religion."

Reading the Establishment Clause through other writings of its author (James Madison), Levin argues that the Bill of Rights precluded the establishment of an official church at the federal level in order to give religion a greater scope of freedom than the Free Exercise Clause alone would have provided. In a country with an established church, citizens belonging to (most) rival churches can be granted the right to practice (exercise) their faith in houses of worship and private homes. But when members of those religions move into the public square, their faith can be curtailed whenever it clashes with the established church. By declaring that the United States would have no established church, the First Amendment opened up a broader space for believers to live out their faith in the public life of the nation.

Levin's provocative claim is that, contrary to Madison's intent, the U.S. has developed a non-traditional state religion — a "Church of the Left," as the headline puts it — from which traditionalist believers are (barely) tolerated dissenters. They are grudgingly permitted to practice their faith, but only within the confines of their own churches and homes. When they enter the public sphere in any way — by operating a hospital, running a charity, or starting a small business that sometimes caters to weddings — they are made to bow before a state-sanctioned moral and cultural god of the liberal left.

As I said, it's a provocative claim — but also one with which I largely agree.

Where I dissent from Levin is in his characterization of this emerging state religion as a "Church of the Left." In reality, it's far broader than that — a culmination of cultural and legal trends stretching back more than 50 years and widely supported by Americans on both sides of our nation's political and cultural divides.

A more accurate name for it might be the Church of Anti-Discrimination.

The Civil Rights Act of 1964 banned racial discrimination in "public accommodations" (retail establishments and other entities that serve the general public). The purpose of doing so was quite clear and justifiable. It was an effort, once and for all, to smash Jim Crow's grip on the South by forbidding private business owners from discriminating against African Americans.

If anti-discrimination law applied solely to race — if it had been treated by legislatures and judges as a singular remedy necessary to address America's uniquely pernicious history of governmentally and legally facilitated white supremacy — then today's clashes over gay rights and religious freedom would never have arisen. But in the decades since 1964, the U.S. has seen a proliferation of anti-discrimination laws at the local, state, and federal levels. There are now federal laws banning discrimination in public accommodations on the basis of color, religion, national origin, sex, age, pregnancy, and disability. (As libertarian law professor David Bernstein points out, state and local laws sometimes go much further, to "cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.")

Perhaps even more remarkable than the proliferation of these laws over the past half-century is the fact that, as legal scholar Douglas Laycock has noted, almost no one ever wins an exemption from them. That includes religious believers who make claims under RFRA (in either its federal or various state versions).

Thou Shalt Not Discriminate has become the highest commandment of America's state religion, and it is nearly always inviolable.

The conflict playing out in Indiana and Arkansas over the past couple of weeks concerns, in effect, whether homosexuality will become a protected class like so many others before it. If the proscribed discrimination dealt only with sexual orientation, the issue of religious freedom would never arise, since no one is suggesting that traditionalist believers should be permitted to discriminate against gays and lesbians simply because of their same-sex desires.

The issue of religious freedom arises only because homosexual identity has come to include the possibility of marrying someone of the same gender — an act that many traditionalist believers consider to be both an impossibility (because a "gay marriage" is an oxymoron) and an abomination in the eyes of God. In the name of anti-discrimination, gay rights activists and many of their political and commercial supporters increasingly expect the government to force these believers to violate their sincerely held convictions on this issue by making them participate in (by providing services for) same-sex-marriage ceremonies. If these believers want to perpetuate their bigoted, discriminatory beliefs in private (in their churches and homes), that will be tolerated. But the progress of gay civil rights requires that these believers be banned from living out their faith in any public respect whatsoever.

Traditionalist believers do themselves no favors when they describe this situation as "totalitarian." It's actually much closer to the French model of laïcité — or a quasi-religious ideology of public secularism. That's not totalitarianism. But it is an alternative form of liberal democracy, one quite different than the historically pluralistic American model of granting religious individuals and groups wide latitude to live out their faith in public — by, for example, allowing an evangelical Protestant family to run a pizza parlor without being forced by the government to cater to same-sex weddings, and without having to endure threats of violence for their beliefs.

Same sex-marriage supporters who reject efforts to carve out exemptions for traditionalist believers should at least be honest about what they're doing. Whipped up into a frenzy of righteousness by the cause to which they're committed, they may feel like they're defending freedom, equality, and enlightenment against forces of darkness, prejudice, and oppression. But viewed from the outside, from a sympathetic but skeptical distance, they look rather different: more than a little like bullies distressingly eager to treat millions of their fellow citizens like heretics — and to use government power to force them to conform, at least in public, to the dogmas of a contrary, and in some ways incompatible, faith.

Whether or not those on the receiving end of this act of raw government power are justified in feeling persecuted, they're certainly right to see in this latest round of the culture war a betrayal of something very old and very precious in the distinctively American form of liberal government.