In a little-noticed court case early this year, a federal judge decided that Christian landlords in Alaska may refuse to rent to unmarried couples on religious grounds. Those landlords, observed the judge, do not pose much of a threat to people's ability to find housing in today's America. Though in the current judicial climate this is one of the saner rulings on religion in recent memory, the way this issue and many others are framed in the law, the media, and the culture pose a grave threat to our free exercise of religion.
The distorting frame begins with the decision itself, in which the judge seemed willing to grant Christians free exercise largely because it had no real effects. We used to think that rights of conscience and property took precedence, whatever their effects, over vague entitlements to secondary goods like housing. In fact, it is worth remembering that the Constitution and Bill of Rights make a point of guaranteeing freedom of religious exercise and disposition of our own property. Without both rights, religion must become merely private worship limited to specially designated religious places or to the home — as it is in communist nations, and in countries like Mexico that hold strong Enlightenment prejudices against public religiosity.
By now, the media and the culture more generally also frame religious issues in this same problematic way. When the judge rendered his decision, the headlines in most papers read something like this: “Judge's Decision Likely to Make Apartments Harder to Find for Some Americans.” Journalists have in most cases unconsciously accepted the framing narrative that religious expression is a secondary matter, to be trumped routinely when a controversy erupts over what are thought to be more basic questions, like “inclusion” or civil rights.
There are admittedly some hard cases. Religion and property rights were sometimes used to deny black Americans their civil rights. But to assume that because religion has sometimes been misused in the past, religion must now bow before any right that anyone claims is the sheerest mental laziness and a dangerous prejudice. There must be strong, almost foundational reasons for government to abrogate conscience and property rights. And for all but a fraction of a percent of contemporary issues, there are no such reasons.
Behind this error lies a popular confusion about the nature of democracy. By definition, democracy is a form of government. That is, the rules of democracy tell us something about how a government is constituted, what are its limits, and whence it gets its legitimacy.
For us in America, our government was established by the Constitution, which allows to the federal government only certain enumerated powers that derive their legitimacy from the people's consent.
But this does not mean that in other areas of life the people themselves must follow the same rules as their government. The U.S. government, for example, cannot prefer one religion over another; individual Americans or the population as a whole may do so because their religious choices are outside federal jurisdiction.
As George Washington famously wrote to the Hebrew Congregation of Newport, R.I., even the notion of tolerating religions is different in this country: “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should [comport] themselves as good citizens in giving it on all occasions their effectual support.”
No governmental entity may discriminate against any American citizen; but you or I may choose with whom we wish to associate, or to whom we shall rent our property, because no one has any authority to force us to do otherwise.
Arguments like these are often thought to shipwreck on questions of race. If we allowed people that freedom, the response goes, we would be back in the old segregationist America. If so, that would be deplorable. But it is unlikely things would turn out that way. The civil rights movement has made almost all of us more sensitive to those questions; the people who remain unconvinced are unlikely to be deterred from practicing discrimination by laws that are quite difficult to apply.
And in any event, to forbid us to pick and choose among people on the basis of their chosen behavior and our deep-held beliefs, as in the Christian landlords' case, is to say that real religion, religion that makes a public difference, is not welcome in America. Some proponents of “civil society” have openly stated that non-democratic, exclusive, hierarchical, “patriarchal,” or other aggressively religious groups present a problem for democratic societies. That might be true if our system dictated that “society” must be democratic, but it does not. For us, our government is a democracy precisely so that society, including particular groups and individuals within it, will not be subject to curtailment of their rights to free exercise.
Confusion about this matter has led to any amount of mischief. My children once informed me at the dinner table that, even in the house, they had a constitutional right to free speech. I explained that the Constitution forbade Congress to limit political speech, but that their mother and I are in a different jurisdiction at home. Such is our confusion about the kind of government and society in which we live that many of us, not only children but adult believers included, seem ready to allow the substance of our freedoms to be framed in a way that allows an abstract, erroneous, and demonstrably dangerous notion of freedom to threaten true freedom.
Robert Royal writes from Washington, D.C.