My Letter to Indiana Governor Mike Pence

Dear Gov. Pence,

As a former IN resident, and concerned Christian and constitutionalist, I have been watching with keen interest the news this week about the response to your state’s passing of the Religious Freedom Restoration Act. For what it is worth, I am writing to encourage you to stand your ground against the forces that are aligned against you.  The firestorm you are facing should come as no surprise, as it is created by forces in this culture that are maligned against the kind of religious freedom envisioned by the U.S. Constitution.  Your opponents on this issue believe that religion convictions are fine, so long as they are kept private.  They oppose those who would seek to act on their convictions in public.  But their opposition is not principled; it is discriminatory, selective: it supports the expression of moral convictions based on religious beliefs that they agree with (for all moral convictions are manifestation of some kind of religious faith), but seeks to suppress those they do not.  More grievously, they want to use the state to enforce their own convictions on the rest of us.  They seek to trump the first freedoms of the Constution with a presumed freedom to act out one’s desires without having to worry about being judged or offended by anyone who disagrees with them.

So, please sir, take the patient and long view here.  The opposition will soon fade but in the end you can rest assured that the citizens of Indiana will be freer in the truest sense of the word.

Kind regards,

Jeremy Noonan

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Can State Governments Impose Religious Beliefs on Private Business Owners? – Arlene’s Flowers v. Ferguson

Arlenes

A news report out of Washington State reenergized my interest in writing about the threats to First Amendment Rights in this country, largely from those who hold to the doctrine that sexual freedom is an ultimate right.  According to the Daily Signal, a Washington judge ruled this week that a 70 year old florist was guilty of violating the states anti-discrimination laws when she refused to make floral arrangements for a gay wedding. In his 60-page opinion, the judge writes: “No court has ever held that religiously motivated conduct, expressive or otherwise, trumps state discrimination law in public accommodations. Religious motivation does not excuse compliance with the law.”

It is worth nothing in this case that the florist, Mrs. Barronelle Stutzman, gladly serves gay customers, and the man who filed the lawsuit was a long-time customer of hers.  But when he asked her to provide services for his wedding, she declined on grounds of conscience informed by her Christian faith.  She recalls: “I put my hand on his and said, ‘I’m sorry Rob, I can’t do your wedding because of my relationship with Jesus Christ. We talked a little bit, we talked about his mom [walking him down the aisle]…we hugged and he left.”

The court ruling ignores the difference between moral discrimination and amoral discrimination.  To “discriminate” simply means to recognize a distinction between.  Thus moral discrimination means to recognize the difference between good and evil.  Every human being does this; it is a function of the human conscience.  The kind of discrimination that has come to give the word such a toxic connotation is of an amoral nature.  It is a prejudicial judgment of a person’s worth based on characteristics that lack moral properties. The reason while racial discrimination is generally unjust is because it, as MLK Jr. famously said, judges someone “by the color of their skin, not the content of their character.” Other amoral characteristics that may be a basis for discrimination include gender and age.

As an aside, it is highly questionable whether the government ought to regulate even amoral discrimination in the first place, especially over private businesses. The oft quoted liberal aphorism (used in relation to eliminating anti-abortion and anti-sodomy laws) that it is not the government’s job to legislate morality applies here. Our country has a tradition of upholding private business owner’s freedom of association (i.e. freedom to refuse business on any grounds they see fit).  Thus, even if a business owner discriminates on amoral grounds, and such behavior is morally objectionable, why should the government get involved in the first place? People should be able, normally, do to business with whom they please.  The free market will punish those who turn away business and thus lose market share or refuse to hire the most qualified employees based on such characteristics.

But this ruling in Washington goes beyond such discrimination and attempts to regulate moral discrimination of private citizens. That is it seeks to use the force of the state to coerce people into suppressing moral judgments the state disagrees with, and act according to those moral judgments the state approves of.

In this case, Mrs. Stutzman, on religious grounds, finds gay marriage to be objectionable. This is not some fringe, cultish religious conviction, but one that is held by tens, if not hundreds, of millions of U.S. Citizens, and represents consensus across all major religious traditions. It is firmly grounded in widely and sincerely held religious belief. She believes that she would be sinning against God if she supported a gay wedding by providing services for it. You may disagree with her moral convictions, and her religious basis for them, but the U.S. Constitution constrains the state from using its power to suppress the expression of them. Clearly, the state of Washington’s anti-discrimination laws are prohibiting her free exercise of religion.

But they are doing even more than that. I argue that such rulings interpret anti-discrimination laws in such a way as to establish religious belief. This is because they are forcing people to accept an certain concept of marriage which is not and indeed cannot be religiously neutral. The state of WA is in effect saying, “You cannot express publicly this religious-based belief that marriage should only be between one man and one woman; instead, you can only express publicly the state sanctioned belief that marriage is whatever arrangement two adults please.” These beliefs about marriage are themselves derived from faith commitments concerning the purpose of human existence, the meaning of life, the nature of man, etc. And in instances like these throughout the country, state and local governments are punishing those that disagree with these doctrines and express disagreement publicly.

Friends, such actions are a threat to our fundamental freedoms. I urge you to fight for our First Amendment rights to differentiate between right and wrong on religious grounds and act publicly on such judgments. Without this first freedom, other freedoms will gradually be eroded.

When Rights Conflict, Part 1: Natural Rights versus Socially-Constructed Rights

First Amendment rights increasingly collide with other rights in our courts.   The right to equal protection under the law clashes with the right to exercise one’s conscience freely when Christian business owners refuse to service gay marriages.  A right to health care conflicts with the free expression of religion when a religious school refuses to cover certain contraceptives in its health insurance plans.  When rights conflict, how do we know which rights should take precedent?

This question may be too complex to take on in the medium of a blog.  It’s a question that I recently raised in the Ethics portion of my Theory of Knowledge class. Answering it requires an exploration of the nature of rights.

The Bill of Rights in the U.S. Constitution is based on the Enlightenment notion of natural rights.  A belief in natural rights is enshrined in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Rights are described as “unalienable,” a term borrowed from property law.  James Rogers explains, “An “alienable” right over property means that the property can be sold or given away by the owner. Property that is “inalienable” cannot be transferred by the owner (First Things, “Rights You Can’t Give Away,” June 2012).” Hence, “unalienable” signifies something that cannot be given or taken away.  A natural right is unalienable because it is not foreign or external to human nature (such that it could be given away), but inherent in human nature (and thus cannot be given away since it is inseparable from us).  So while I can give my time and treasure to the State (alienable), I cannot give away my conscience (inalienable).

In contrast to natural rights, which the State recognizes and secures, socially-constructed rights are invented and conferred by the State.  They are not inherent to human nature, but are contingent on the power of the State.  Simply, natural rights are discovered while socially-constructed rights are created.  Thus, natural rights are the same for all humans everywhere, transcending time and space, whereas socially-constructed rights vary with time and space.

This distinction may help resolve conflicts in rights.  If the conflict (meaning that protecting legally one right requires violating another) is between a natural right and a socially-constructed right, , the natural right should upheld first Natural rights should take precedent because they constrain the power of the state, setting limits on what demands the state can make of us. Rights that originate with State power cannot by nature restrain State power:  if the State creates them, the State can violate them.

This argument requires, of course, that one can discern which rights are natural: a question I will explore in my next post.

Freedom, Rights, and Duty – part 3

I have been challenged by other Christian brothers to cautiously receive what respected Christian leaders say about politics and not jump to hasty, fear-filled, simplistic conclusions in a reactionary manner.  With this admonition in mind, I felt compelled to read through the aforementioned speech on human rights by Hillary Clinton and evaluate her use of freedom of worship and human rights in the context of the speech (see http://www.state.gov/secretary/rm/2009a/12/133544.htm for a full transcript).

What strikes me immediately about this speech (and I am sure this is common in human rights speeches) is the presupposition that human rights are not the product of a particular culture but are universal rights.  For instance, the Secretary states that  “our basic values, the ones enshrined in our Declaration of Independence – the rights to life, liberty, and the pursuit of happiness – are not only the source of our strength and endurance; they are the birthright of every woman, man, and child on earth.”  She then proceeds to refer to a document called the “Universal Declaration of Human Rights,” adopted by the U.N. in 1948.  If human rights are truly “universal,” then they must have a transcendent basis and not depend on the dictates of human authority.  Indeed this Declaration did not confer rights on all people, rather it, as Clinton notes, “affirmed the universality of human rights.”  In other words, it acknowledged that human rights are natural rights, or what Jefferson called “inalienable rights” (‘inalienable’ means “not transferable to another or capable of being repudiated”).

The concept of natural rights is rooted in the theory of natural law.  Natural law does not refer to the laws of physics that govern nature, but  to, as Thomas Aquinas articulated, “the ‘natural light of reason,’ by which we discern what is right and wrong.”  In other words, natural law differentiates right from wrong based on the foundation of eternal, objective moral law.  C.S. Lewis explains natural law in The Abolition of Man, “For all laws derive from the eternal law to the extent that they share in the right reason and right reason is only right if it participates in ‘Eternal Reason.'”  The concept of natural law is consistent with the biblical doctrine that God has made His moral requirements known to all men.  The apostle Paul, writing about people who have never heard of Moses and the Ten Commandments, says, “the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts now accusing, now even defending them” (Romans 2:15). A key tenet of natural law is the belief in the intrinsic worth and dignity of all people, which is fundamental to the belief in universal human rights.

In contrast to the theory of natural law is the theory of positive law. Positive law rejects the concept of a transcendent moral law accessible to all and advocates that the only binding laws on humanity are laws imposed by human government.  Therefore laws are temporal, being based merely on temporal reason, and are not subject to any transcendent norms.  A positive law framework sees human rights as contingent on human governments:  rights are not inalienable but conferred by the state on its citizens. And if rights are given by the state, the state certainly has the authority to take them away.

This analysis reveals a fundamental contradiction in popular thinking on human rights.  On the one hand, politicians, academicians, and media magnates advocate for universal human rights; but on the other hand, these same voices reject the belief in universal and objective values. They argue for the dignity and freedom of the individual without having an objective, unchanging basis for these beliefs.

Perhaps one reason why the natural law foundation for human rights is consistently rejected is that removing the constraints of natural law allow people to concoct new rights that are not inalienable and therefore not based on eternal law.  The idea of universal human rights, though, is still advocated to give weight to these contrived rights.  Clinton mentions one such “right” in this same speech: “[People] must be free to worship, associate, and love in the way they choose.”  Not only is the freedom of religion subtly redefined to freedom of worship, but another right, one that is plainly not in our Bill of Rights and one that has never been regarded as a natural right – the right to sexual freedom.  The rhetoric used by advocates of homosexual rights is identical to the rhetoric used by civil rights advocates (some insightful African-American thinkers have rightly taken offense that homosexuals would equate their cause to the struggle against racial injustice).  They appeal to the 14th Amendment (the equal protection clause) and use the language of inalienable rights to justify their pursuit of equal recognition and protection under the law.  What is fundamentally at stake in this struggle, though, is not the normalizing of homosexual relationships, but the moral nature of sexuality and sexual behavior.  Are there objective moral laws that govern sexual appetites (i.e. orientations) or not?  Natural law has always advocated that there are, and every major world religion has a moral code of sexual behavior.  But this idea is being challenged in academia, the media, and the courts.

In my next post on this topic, I will explore the relationship between rights and moral obligation to argue why the freedom to “love in the way they choose” cannot be a valid natural right, but is merely a relatively new invention of our culture and therefore dependent on the laws of government not on universal moral law.

Freedom, Rights, and Duty – part 2

The top flag above is the familiar “Betsy Ross” flag, adopted by Congress as the official American flag on June 14, 1777.  On that day the Continental Congress resolved “That the flag of the United States be thirteen stripes alternating red and white; that the Union be thirteen stars, white in a blue field, representing a new constellation.”  The other flag is a lesser known flag of the American Revolution.  It was first displayed by George Washington on his fleet of six schooners in the fall of 1775, and was later adopted by the Massachusetts Navy (see americanrevwar.homestead.com/files/flags.htm).  I first saw this flag in the leading credits in the HBO series on John Adams (starring Paul Giamatti – definitely worth watching!).  The phrase “Appeal to Heaven” caught my attention and I believe its meaning relates closely to what our Founding Fathers meant by the free exercise of religion.

The tree on the flag symbolizes a large tree in Boston, known as the “Liberty Tree,” where the Sons of Liberty (a clandestine, intercolonial organization formed to oppose the Stamp Act) would meet to rally.  The phrase was added to bring motivation and validation to their struggle against British rule.  Believing that their cause was based on divine truth and justice, and sustained by the greatest power in the universe, gave them hope and courage in their battle against what was then the greatest military power in Western civilization, if not the world.

In order to justify their rebellion against the human authority they were under and against the political and social norms that defined their era, these men had to appeal to an authority higher than the laws and will of men, the authority of heaven.  Such an appeal was made by Thomas Jefferson in the preamble to the Declaration of Independence, “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”  Self-evident truths are truths from “heaven,” meaning that they transcend time and space, and therefore supersede the reign of human laws and authorities.  Such truths are revealed by God to all men (referred to by theologians as “general revelation”).  Jefferson cites two of these truths in the text:  that we share a common nature created equally by God and that God has granted us specific rights that cannot be taken from us by other people.  These truths are the foundation of a free, democratic republic, and they are religious truth claims.  Therefore, the actions of these rebels in the Revolutionary War was an exercise of religion. On the basis of these universal truths, the leaders of the Revolution challenged and prevailed over the authority of the king of England.

Indeed any movement of social or political revolution must make an “appeal to heaven” to justify their cause. If, as postmodern liberals would argue, there are no universal (or absolute) truths that transcend history, culture, and nations, but rather truth is socially constructed, contingent on time and space, then there is no higher court of appeal above the laws of the government or the norms of the culture.  For the abolitionists of the 19th century, on what grounds was slavery to be opposed if the practice was sanctioned by law and socially acceptable (the economic benefits of slavery were enormous)?  For the civil-rights activists of the 20th century, on what basis were blacks to be treated as equals if segregation was allowed by law and supported by the culture?  These revolutions also had to “appeal to heaven” to find a foundation for change and they appealed to the same “self-evident” truths which are grounded in a biblical view of God and humanity.

Social and political revolutions cannot happen without the right to the “free exercise of religion.”  Social and political change is of course by its very nature public.  So to rise up against political power or to work to change social norms, one must exercise religion publicly.  So called “freedom of worship,” or in other words the privatization of religious faith, robs us of true freedom of religion and ultimately of other freedoms.  If we do not have the freedom to change government or culture by a public “appeal to heaven” then there is no limit on the power of government over our lives.  When such restrictions are eliminated, tyranny ensues.  This is why the freedom of religion is the “first freedom”:  it is fundamental to all other freedoms.

In my next post on this topic, I will explore the nature of human rights and critique the view of other rights enumerated in this same speech.

Freedom, Rights, and Duty – part 1

A poll released this week revealed that 25% of Americans do not know which country the U.S. won its freedom from.  This astounding number rises to 40% for 18-29 year-olds.  If ignorance of such a basic historical fact is so widespread, imagine the extent of misunderstanding of not only the content of our Constitution but its meaning.  As we celebrate our great country’s independence this weekend and remember history, it is important to reflect on the meaning of this freedom and the nature of the rights our founders secured for us in our Constitution.

The First Amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Thus, the right to the free exercise of religion is the first in our Bill of Rights.  What does the free exercise of religion entail?

Originally, the primary meaning of this right, i.e. the main implication to the first Americans, was that the government could not use its power to compel its citizens to adhere to any particular religion or denomination.  Therefore, citizens were free to choose what they believed and which faith community to identify with without fear of political repercussions.  Such a society differed from European states in which religious adherence was wed to political loyalty.  Of course, this right forbade the government from prohibiting where people attended church or what doctrine they studied and taught their children.  But it also allowed citizens to practice their faith publicly, bringing religious belief and conviction into the public square to shape and motivate public policy.  Throughout U.S. History, Christians have exercised this freedom of religious expression to influence social revolution in order to make a more just society.  The most significant social movements were probably the abolitionist movement of the 19th century and the civil rights movement of the 20th century.  These movements were led by men and women of Christian conviction and were based on such biblical concepts as human equality being derived from our common nature as divine image-bearers.

As important as this right is to U.S. History and as essential as it is to true freedom, the original meaning of the “free exercise of religion” has been changing gradually, yet significantly.  In a recent speech at Georgetown University on human rights, Secretary of State Clinton replaced the conventional phrase “freedom of religion” with the phrase “freedom of worship.”   This subtle shift in language was not accidental and signifies a fundamental change in the interpretation of our religious rights.  As Chuck Colson points out,”this clever dissembling of words is an apparent attempt to restrict freedom of religion to freedom of worship only.”  By restricting the “free exercise of religion” to “freedom of worship”, this view limits religious expression to acts of personal piety and corporate worship, relegating faith to the private sphere and excluding it from the public sphere.

Such a dichotomy between public and private life is already pervasive in our culture and is becoming increasingly codified in public policy and jurisprudence.  The implications of limiting the freedom of religion to freedom of worship are far-reaching.  Certainly the abolitionist and civil-rights movements would not have gained traction and prevailed if our citizens were not free to exercise their religion publicly.  And I would also argue that the American Revolution would not have happened if the Founding Fathers believed that religion was merely a private matter.

I will write again on this subject in a couple of days to expound further the ramifications of this shift in thinking.