In the aftermath of Monday’s Bostock decision, a common refrain issuing from social media and various articles has been, “Yes, this decision is consequential, but let’s wait and see how it plays out.”
The Religious Freedom Restoration Act (RFRA) we’re told, is religious liberty’s safe harbor. US Supreme Court Justice Neil Gorsuch, in his opinion, cited the RFRA as key to settling future religious liberty disputes. Professor Daniel Bennett recently wrote,
The case will certainly have major implications for religious exercise. But contrary to initial reactions, this decision should not be read as a decision that dooms religious liberty in America, but rather as an inevitable step toward something Congress and most state legislatures have thus far been unable to do: crafting a compromise that balances LGBT rights and religious freedom.
To accept the logic of such voices as Gorsuch and Bennett, one must rely on at least two assumptions: One, that progressives see some sort of compromise as desirable; and two, that the Religious Freedom Restoration Act’s provisions remain intact in the present form, well, forever.
As much as I want to share in Gorsuch and Bennett’s patient optimism for a better way forward, I believe the aforementioned assumptions are flawed. Monday’s decision, barring a comprehensive statutory compromise, will be judged by historians as a significant inflection point in the never-ceasing culture wars.
We already have the evidence for why.
On Thursday, Senate Democrats attempted a voice vote to pass the Equality Act, legislation profoundly hostile to religious liberty. To do this by “unanimous consent” only signals that Democrats, with the wind at their backs, have little desire to defend religious freedom and are advancing a take-no-prisoners approach in their culture war victory.
In a move that demonstrates just how cowed Republicans are in wanting to spend any political capital on defending religious liberty, only three Republican Senators rose to challenge it: Senators Josh Hawley, Jim Lankford, and Mike Lee. Were it not for these three Senators, the Equality Act would surely become law. Even still, given Monday’s ruling, it seems that the spirit of the Equality Act has indeed become law, and all that awaits are its future entailments elsewhere in federal law.
A lesser-known feature of the Equality Act undermines the argument that RFRA will sufficiently protect religious dissenters. To understand why the Religious Freedom Restoration Act is not the permanent salve some declare it to be, consider that a provision of the Equality Act aims at specifically undoing RFRA of its provisions where they come in conflict with sexual orientation and gender identity. The firewall heralded as the last preserve of religious liberty is already on the chopping block.
Toxic legislation with little resistance is not a good sign for religious liberty’s future. And yet, here we are.
In an interview from last year with National Review, noted religious liberty scholar Douglas Laycock of the University of Virginia said that the Equality Act
goes very far to stamp out religious exemptions… . It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.
For now, the Religious Freedom Restoration Act remains intact, but its provisions are one election away from passage if Democrats take control of the Senate. Even still, that its provisions remain intact is no sure proof that it will give relief to those who appeal to it in future cases.
In 2016, Harvard Law professor Mark Tushnet infamously compared those with traditional views about sex and gender to racists and Nazis. He was more than honest about what victors in the culture war ought to do: Give them no quarter. Writes Tushnet,
For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
“No normative pull at all.” What does that mean? It means the Judeo-Christian understanding of sexuality and gender are not remotely persuasive or deserving of protection. It means to leave no room for it to flower or grow, especially if it is a hindrance to social justice. This hypothesis is what a lot of us have been saying for some time: Nothing within the internal logic of progressivism explains why there should be robust protections for those holding beliefs deemed harmful to society.
Are we really to believe that cultural elites so brazenly contemptuous of historic Christian belief will have the magnanimity to leave cultural and public space for those who they liken to racists to continue in their bigotry? We can hope, but I am not optimistic.
Like anyone, I am fallible and cannot predict the future. Maybe RFRA will stay intact; perhaps a compromise will be struck. If one is, expect religious liberty to grow increasingly narrow in its conception. A lot of religious liberty’s future hinges on elections, personnel, and policy. Those are doubtlessly important. What we must do in the meantime is work even harder, in truth and grace, to explain that what we believe is believed not just by faith alone, but reason as well. We must work even more diligently in our churches and in our homes to catechize ourselves, to know that what our faith teaches is not only true but beautiful. We must promulgate and fortify the virtues of courage, gentleness, humility, perseverance, and hope. A belief in an enchanted world such as our own is to believe that the God who created it and stands behind it always wills our good, even in the face of great challenge.
Because we believe that Christ is the ultimate Lord and Judge of history, Christians reject all forms of fear and panic, but that should not stop us from being honest about the bleak future awaiting religious liberty.
Andrew T. Walker is associate professor of Christian ethics and apologetics at The Southern Baptist Theological Seminary.
Speaking Out is Christianity Today’s guest opinion column and (unlike an editorial) does not necessarily represent the opinion of the publication.
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