I’ve been working on research this week and mostly away from the moment-to-moment of politics, but I’ve spent much of the time reflecting on the impact of the Obergefell decision on people of faith. We had already begun to see the beginnings of a campaign against secular heretics in the last couple of years, aimed at bakers, florists, and photographers in the private market. The ruling elite are already moving to the next phase of this attack on faith, attempting to rewrite the freedom of religious expression to limit it within the four walls of churches and other houses of worship.
“Certainly the First Amendment says that in institutions of faith that there is absolute power to observe deeply held religious beliefs,” Senator Tammy Baldwin explained to MSNBC’s Steve Kornacki, “but I don’t think it extends far beyond that.” Baldwin objected to the idea that religious liberty applies to the manner in which Americans choose to live their lives. “They’re talking about expanding this far beyond our churches and synagogues to businesses and individuals across this country,” she warned. “I think there are clear limits that have been set in other contexts and we ought to abide by those in this new context across America.”
For my column today at The Fiscal Times, I note that this is a complete deviation from the historical application of the First Amendment. In the midst of two of the worst national conflicts in human history, the freedom of religious expression not only allowed for the refusal to engage in private transactions without government penalty, but also exempted Americans from participation in its national defense — the highest and most compelling state interest:
Religious liberty is the ability to put one’s faith into action in the public sphere, both organizationally and individually, both in choosing to take action and in choosing to refrain from participation. The latter has taken many forms in American history, among those the notable exception from compulsory military service by religious orders that demand pacifism, such as Quakers.
Even when our nation’s security is at stake, we have defined the free exercise of religion to include the right to refuse to participate in war, and specifically as individuals. That exercise didn’t just get limited to the ability to advocate for pacifism, but also to practice it in wartime – which hardly qualified as a popular position in most wars, either.
If we exempt participation in war because of free exercise of religion, why should government compel participation in weddings that violate the tenets of their faith? The government’s interest in compelling national service, especially in wartime, far outstrips the need to force participation in a private event.
Not all Quakers refused military service, just as some Christians have no problem with serving at same-sex wedding ceremonies. The participation of some Quakers in military service did not impact the right of others to opt out of military service, even though that exemption has almost always been terribly unpopular during these conflicts. If the right of free religious expression outweighs the compelling state interest in self-defense, especially when the nation has been attacked as it was in World War II, how can anyone claim that the First Amendment can only be contained to houses of worship when it comes to a wedding?
To extend the point even further, the ability to refuse to participate in national defense stopped being limited by religious faith fifty years ago. In the 1965 Seeger decision, the Supreme Court ruled that consistent and principled pacifism did not have to be associated with a particular denomination to refuse to participate in military service. So if anyone who has a principled stand against military force can avoid a national draft in defense of the state, why are we forcing bakers and photographers to participate in private events that violate their consistently applied values by the threat of devastating economic penalties from the government?
What Baldwin and the Left wants to impose is a nationwide Don’t Ask Don’t Tell (DADT) policy, where religious faith must only be practiced in private, and not lived in the world, which is exactly the opposite of the historical and precedential understanding of the First Amendment. That new DADT regime even now extends to the military, where chaplains get disciplined for advocating their religion and using Christian scripture. It is a new form of the excesses of the French revolution, when freedom got redefined as the necessity of complete adherence to the prevailing consensus — and everyone else either shut up or lost their livelihoods or their heads.
As always, your thoughts are appreciated.