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."

Pesach and the rhetoric of "Judeo-Christianity"

Tonight marks the beginning of Passover, or Pesakh in the Jewish tradition. As some friends and colleagues are engaging their Seder meals and retelling the Haggadah, I thought I would keep this in mind while talking about the the recent American Religious Identification Survey (ARIS) conducted through Trinity College. This is just the latest in several surveys, including one conducted the Pew Forum for Religion in Public Life. The ARIS was also conducted in 2001 through CUNY.

The ARIS report's conclusions suggest that mainline Protestant populations have fallen, and that evangelical populations have risen, although not enough the keep pace. The percentage of self-identified Christians has fallen to 76 percent from just about 80 percent in the early 1990's. Catholicism has shifted to its early areas of growth, California and the Southwest, rather than the Northeast, which became Catholic largely through 19th century immigration, rather than 16th and 17th century Spanish colonization. Predictably, some media outlets have moved to talk about a 'post-Christian America' or other such things, in my view quite prematurely.

R. Albert Mohler, president of the Southern Baptist Theological Seminary, appears to be concerned not only that the number of openly secular Americans has doubled, but that the Northeast has overtaken the Northwest as the most secular area of the United States, geographically speaking. Mohler notes that the Northwest has never been particularly religious--rather it has been a stronghold of "freethinkers" since well into the 19th century--which is only partially true. In fact, the West has been a hotbed of new religious development for over a century, and demonstrated its share of powerful movers and shakers, such as the Presbyterian minister Mark A. Matthews.

But its Mohler's language that truly gives his inadequate understanding away. "The so-called Judeo-Christian consensus of the last millennium has given way to a post-modern, post-Christian, post-Western cultural crisis which threatens the very heart of our culture." As Jews and Christians both enter into a particularly sacred time of year this week, its helpful to remember one crucial fact.

There has never been a "Judeo-Christian" consensus.

In fact, the use of that term should always prompt our suspicion. It is almost never used by Jewish people writing in public life, and almost exclusively used by evangelical Protestant Christians as a way of glossing over the very real ruptures and divisions within Christianity and certainly with respect to Judaism. Since the middle and late 11th century, there has never been even a Christian consensus, and the many councils of the Church early on suggest a much wider diversity of practice and belief than is commonly assumed. The sacking of Constantinople by the Fourth Crusaders assured that Orthodox and Catholic Christians would remain apart, while the Protestant Reformation assured there would never be full reconciliation or a cultural consensus even within the Western part of the Christian tradition.



When the first Jews came to the Americas via Spain and Mexico, it was under the ever-present threats of the Inquisition, and the only areas of the English colonies that gave them safe haven were the secular colony of Rhode Island and the liberal Anglican colony of South Carolina, both places of early (18th century) synagogue establishment. As the Library of Congress has shown, the full spectrum of political thought can be found in pre-Civil War American Jewry, from Confederates to Unionists. Union General (and later President Grant) issued the infamous Order#11, banning Jews from several states during the War. Only with the personal intervention of President Lincoln was the order rescinded.

Jewish Americans have never made up more than 3-5% of the population, and the current surveys pinpoint a figure around 1.2% The rhetorical value of "Judeo-Christian" sounds impressive, but where is the discussion of the Talmud? The Mishnah? Or Maimonides? Or Rosh Hashanah? Or any aspect of Rabbinic Jewish culture? Its simply not there.

There are occasional exceptions that prove the rule. The most remarkable of them to this day has been Martin Luther King Jr.'s "Letter From Birmingham Jail." King drew upon an immense range of sources, from Jewish philosopher Martin Buber to Augustine and the secular ideologies promoted by President Lincoln to make his case to the Southern Christian ministers to whom he was writing. Yet his amazing Letter, studied in American religion courses to this day, stands out for its genuine acknowledgement of the Jewish tradition as Jewish, rather than as a mere prefix to the Christian message. Meanwhile, Jewish Americans of all persuasions have worked diligently to be represented in mainstream discourse, from the Reform founders of the proto-"United Way" movement in Denver to socialists campaigning for FDR.



It was not always this way. Early Christians were Jewish, and the relationship of the Nazarene movement to the post-Second Temple Jewish culture was hotly debated along many lines. Even Paul, the Pharisee turned Christian, was careful to tread that line in ministering to the Gentiles, as Romans and Galatians demonstrate. The canonical Gospels of the New Testament demonstrate both a concern with the Torah (Matthew) and the larger Greek world (Luke), sometimes to the exclusion of one, and sometimes to the innovative fusion of both (John).

While we take a moment to reflect on Pesach ("Passover") and the heritage of Jewish culture in America, (including those who made matzoh well before there were Rabbis in the U.S.), it behooves the careful thinker to parse the ruptures between religions and traditions as well as possible continuities. Moses Maimonides, who wrote about both ancient Greek and medieval Christian thought, famously suggested in the Guide For The Perplexed that humans are guided by God when thinking carefully and deliberately, and those not committed to reason are those not known by God. Lamenting the end of an era because 3 out of 4 people identify with your religious tradition, instead of 8 out of 10, is neither reasonable nor terribly careful thinking.

Of course, the ARIS numbers count Catholics as Christians too, as I imagine Mohler does as well. That certainly would not have been the case in the American 19th century, but that is a topic for another time.