Proxy Wars Over Religious Liberty

The past decade has witnessed some intense battles over religious liberty. But when you consider the character of those battles, it’s often hard to avoid the conclusion that both sides have treated religious liberty as the subject under debate in order to avoid the real points of dispute between them. The resulting political arguments have given us all the impression that religious liberty is more controversial with the American public than it really is, and therefore that the progressive enemies of religious liberty have the political winds at their back. To recover a clearer sense of the matter, we need to be more careful in what we expect of religious liberty and how we understand it. Since the early Obama years at least, progressives have sought, with considerable success, to advance the objectives of the sexual revolution through aggressive government mandates. It’s a familiar story by now: A movement that claims merely to want personal freedom (“live and let live”) first repeals laws that purportedly limited their freedom, then uses government to subsidize their preferred choices, then to mandate that other people subsidize them, and finally to punish anyone who disagrees with them. The right to abortion becomes a right to government-funded abortion, and then a right to have Hobby Lobby pay for abortion, and now a right to punish pharmacists for not providing abortifacients and doctors and nurses for refusing to participate in or refer for abortions. The “freedom to marry” becomes the duty to bake the cake. Americans who are harmed by these increasingly aggressive actions, and those who seek to protect the people who are harmed, respond with appeals to religious liberty. But religious liberty can’t be the only response to such coercive efforts. Religious liberty is one human value at stake, but not the only or even the primary one. Other human goods and aspects of human flourishing, and ultimately human nature itself, are more central to these debates. After all, religious liberty is about the right to stand by the truth about the more basic values at stake. But very few people want to engage on those terms, taking sides on the substantive issues in these debates. They prefer the safer, more respectable, less icky ground of religious liberty. This is true even of the Trump administration. Ten years after the Obama administration issued the Health and Human Services contraception mandate, all the Trump administration has even attempted to do is broaden the religious and conscience-based exemptions from the mandate. It’s hard to blame the administration, however, as there haven’t really been many voices calling for anything else. Over the past decade, there has been little willingness to challenge the very existence of the mandate — on moral grounds, health-care grounds, or government-authority grounds. Few people have argued that contraception is immoral, and that therefore a government mandate requiring coverage of it is unjust — for everyone, not just religious or conscientious objectors. Few people argued that even if contraception is moral, it isn’t health care (it doesn’t cure a disease or make sick people well), and certainly not an essential aspect of preventive care — and thus inappropriate to include in a preventive-services health-care mandate. And while plenty of people were willing to criticize Obamacare as a whole, few were will¬ing to say that even if you think contraception to be moral and to be health care, there’s no reason whatsoever for the federal government to be mandating its coverage in all employers’ plans. Various people with various underlying moral and political beliefs could have been making any or all of these various criticisms. Instead we heard appeals to religious liberty. Even the Catholic bishops didn’t lead with — or teach the truth of — an underlying moral argument. This unwillingness to engage the substantive moral debates that actually divide us in the culture war leaves us fighting proxy wars over religious liberty. These wars confuse the issue, and put at risk our capacity to defend the rightful place and purpose of religious liberty.