Let me be start by saying that I like and respect New York Times columnist Ross Douthat. I had the pleasure of interviewing him a few years back on Faith Complex. Although we disagreed on nearly everything under the sun, he was thoughtful, generous of intellect, and quite funny.
With that preamble rendered, I am simply staggered by his recent head-scratcher of an Op-Ed entitled “Defining Religious Liberty Down.” It’s worthy of scrutiny because it raises the volume considerably in the already clamorous “religious freedom” debate. For Douthat voices the argument that some unnamed group out there–who could that be?–doesn’t care a whit about religious freedom.
For those who are not familiar with this new culture-war killing zone, let me bring you up to speed. A seemingly value-neutral term has shifted ideological shape in the past election cycle. “Religious freedom” has become the Religious Right’s very own “J’accuse!” cross-pollinated with Clint Eastwood’s “Go ahead, make my day.”
As far as Conservative Catholics and Evangelicals are concerned (two groups that, I have been warning in this column, are politically formidable when they lock arms), lethal threats to religious freedom emanate from everywhere: the Obama administration, liberalism, feminism, gay rights, the academy, secularism, evolutionary theory, atheism, HBO, public schools, Georgetown University, the nabobishly negative MSM, and France.
More on that later. For now, I want to get to Douthat’s piece—a piece which quickly disabused me of my hope that its author was about to experience a Sister Souljah moment. Far from telling his colleagues on the Right to cool their jets, the talented young columnist starts off an almost whimsical meditation as follows:
The Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion. It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair.
I am utterly incapable of following Douthat’s reasoning here. Why does James Madison’s use of the term “free exercise” suggest anything in any way about a recognition of the private (or public) or individual (or collective) nature of religion? As we shall see tomorrow, “public” and “collective” religious practice are rallying cries in the religious freedom lobby.
While Douthat may see the free exercise clause as “a significant choice of words” some of the most interesting legal and historical scholarship on the religion clauses does not share that assessment. As I observed recently, many have argued that its contents are oddly phrased, bewilderingly terse, inscrutable to a fault, and even something of an afterthought.
Douthat proceeds to adduce three cases which demonstrate how the “Western Leadership class” (?) fails to protect the free exercise clause. Exhibit A, naturally, would be the HHS mandates of the Obama administration.
This is a complex and nuanced case and I have written a lot about this here, so let me just repeat: The overwhelming majority of Catholics (and non-Catholics) in America have used or use contraceptives. Is it not, therefore, a teeny bit of an exaggeration to claim that forcing Catholic employers to provide contraception coverage in insurance plans so that nearly every Catholic (and non-Catholic) you know can willingly use them constitutes an unconscionable assault on free exercise?
After a look at a ban on circumcision in Germany (which I will leave aside for now if only because Church-State issues are configured differently outside of our country), Douthat returns stateside for more tales of free exercise trespass. Here he invokes l’affaire Chick-Fil-A. You know the one, where owner Dan Cathy declaimed that, “”We are very much supportive of the family — the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that.”
Cathy later reiterated, “I think we are inviting God’s judgment on our nation when we shake our fist at Him and say, ‘We know better than you as to what constitutes a marriage,’ and I pray God’s mercy on our generation that has such a prideful, arrogant attitude to think that we have the audacity to try to redefine what marriage is about.” The backlash from LGBTQ activists and allies has been immense, as you can imagine.
Permit me to offer my secular take on this: If you don’t like the politics and theology of an owner of a fast-food joint, then don’t patronize his/her establishment. And leave the establishment clause out of it! No government action whatsoever is necessary.
It was simply foolish of the mayors of Boston, Chicago, and San Francisco to suggest as much. However: If gay patrons or employees at Chik-Fil-A are to be discriminated against–and Mr. Cathy’s un-Solomonic oration has done the very opposite of create a healthy professional work environment at his 1,614 eateries—then governments should get involved.
In any case, Douthat again interprets the episode with uncharacteristic laziness. Of the Chik-Fil-A boycotters he writes:
Their conceit seemed to be that the religious liberties afforded to congregations (no official, to my knowledge, has threatened to close down any Chicago churches) do not extend to religious businessmen. Or alternatively, it was that while a businessman may have the right to his private beliefs, the local zoning committee has veto power over how those beliefs are exercised and expressed.
The problem for Douthat is that he can’t convincingly posit a coherent cast of religious-freedom hating, free-exercise-violating bad guys. In fact, other than the “Western leadership class,” Douthat’s column never identifies the victimizers.
It seems to have escaped his notice that the single most vocal secular politician in the United States, Mayor Michael Bloomberg of New York, opposed punitive governmental interference, as did The Boston Globe, as did Eliot Spitzer. But you get my point. With secular liberal friends like that, Douthat needs to rethink the identity of Chik-Fil-A’s enemies.
Douthat ends with a blast, and a rather sulfurous one at that. With an us-vs.-them shrillness that I have rarely seen from Times columnists, he insinuates that those who disagree with the Bishops or espouse gay lifestyles can’t possibly be sincere about religious freedom. In fact, by Douthat’s Manichean reckoning they aren’t even religious people. I quote this remarkable passage at length:
It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held.
It would be refreshing, though, if it were expressed honestly, without the “of course we respect religious freedom” facade.
If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.
There, didn’t that feel better? Now we can get on with the fight.
Wow! I truly did not see that coming. And by “that,” I mean the idea that those who disagree with the bishops or are outraged by Mr. Cathy’s opinions cannot be “religious people”; that religious people in America, as defined by Douthat, are being cruelly bent to someone’s will (But whose? Liberals, secularists, gays, porn-aficionados, single moms, Obama supporters, who?); that no one really believes in “religious freedom” other than folks who will stand up for the most regressive doctrines of their faith.
This post has gone on a little long. In my next one I will try and offer a bit of a postscript as to why the “religious freedom” debate is so important and cannot be ignored by secular people on the Center Right and the Center Left. In the interim, here is the interview I conducted with Mr. Douthat back in March of 2010.
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