Saturday, April 11, 2009

When "Freedom Of Religion" Isn't

MSNBC is reporting on an issue that, like many issues in religion and culture, seems cut and dried to people of different perspectives and attitudes, but in fact is neither simple nor recent. The issue concerns an alleged head-on conflict between religious organizations and lesbigay people. Convention wisdom has these two groups of people at odds, as if religious people can all be lumped into "bigoted" and gay people into "secular." But as a fair amount of scholarship, music and film has shown, that is just not true. Many religious people are very welcoming toward same-sex relationships and orientations, and many gay people and lesbians are quite religious.

If that were the only issue at hand, this would a be merely a matter of citing some counterexamples and condemning the soundbite attitudes of popular news reporting. But there is a far deeper history here, one that finds many contemporary Protestant groups on the receiving end of a legal issue Protestantism once helped define.

In the United States, its common knowledge that the First Amendment to the U.S. Constitution (as well as the some subsequent amendments) permits "Freedom of Religion" to all. As I have noted before, in the earliest days of the Republic, this was defined in terms primarily of religious "belief" and has remained such ever since. In the early days of the Republic, this distinction between religion and religious belief mattered little, as most public and elite culture was defined in terms of varieties of Protestant Christianity. Certainly the African indigenous religions of slaves throughout the colonial and early national times mattered little. The 20-30% of slaves who were Muslim, while often valued more locally, were also of no religious consequence for the breakaway British elites even as they provided capital for the new American institutions.

Unlike Roman Catholicism or Eastern Orthodoxy (or even other movements such as Mormonism), Protestant Christianity has revolved around the concept, elucidated and emphasized by Martin Luther himself of Sola Fide ("Justification By Faith"). While it has variants among Protestants, a common theme is that the Christian's sin (or separation from God) is absolved through the death of Christ, the human and divine Incarnation that bridges the gulf of sin between God and humanity. Christ stands in for the sinner, who participates in the redemptive action ("justification") through faith in Christ. This Divine gift of grace is offered free, and cannot be earned through works or labor.

This controversial doctrine has remained a core teaching among Protestants (along with Sola Scriptura and others). The quality and nature of interior belief became the primary mode of distinction among different Protestants, although of course certain actions and church structures were consequences of these different beliefs. Religion itself in the Anglo-American tradition came to be seen as interior and private. Some have called this, appropriately, the religion behind the Constitution.

This did not happen immediately, nor without resistance. Especially when it came to Jews and Catholics in the American context, this definition of religion (as belief) affected them much more. Jewish, Amerindian and Catholic traditions have historically emphasized practice much more than belief. To be a good Jew or Catholic, one must observe the mitzvot, and participate in the sacraments. Nevertheless, by the time of Thomas Jefferson, the reach of law in restricting religion stopped only at the door of thought, and was still very much operative in matters of practice and action. Time and time again, from Mormons in the late 1800's to atheists in 1961, this definition has for the most part prevailed. Exceptions to these rulings have occurred, but most are very recent, such as the Hialeah decision concerning Santeria and animal sacrifice, and the religious use of hallucinogenic tea. Even the distribution of religious literature in certain circumstances has been prohibited by the U.S. Supreme Court, not to mention the wholesale disregard of Native American sacred lands at late as the 1980's.

Thus we have a clear and documented tradition up to the present day in which the legal system of the U.S. has affirmed most any type of belief, while often prohibiting actions interpreting as conflicting with other legal principles. In the case of the article from MSNBC, recent cited examples are all actions, rather than beliefs.

* A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.

* A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.

* Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

* A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.

All of these are actions. To the extent that religious action has received less protection in general, and the belief core of Protestantism affirmed as the definition of religion, all of these can be seen as potentially running afoul of Equal-Protection laws. Arguments from the viewpoint of religious liberty are likely to be less and less relevant, since none of the actions are protected as "religion."

The activities and outreach of these Protestant groups is thus being challenged through the very ideological framework promulgated by their progenitors hundreds of years ago. In ways that Jews, Hindus, Catholics, Mormons, and Amerindians have failed to accomplish in seeking legal equality for their religious cultures, gay and lesbian political actvists (wrongly assumed by many to be non-religious) may have finally brought some of those Protestant chickens 'home to roost.'

As a recent popular dystopian film character has noted: "Fate, it seems, is not without a sense of irony."

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