A Way to Resolve the Impasse Over Religious Liberty

Given the media attention to Indiana’s religious liberty kerfuffle, someone should have noticed by now that the conservative and liberal parties are talking past one another.

Orthodox Christians, following millennia-old beliefs about the natural purposes and sacred significance of sexuality and marriage held by many millions of Christians and non-Christians around the world, are concerned about being legally coerced into immoral acts of cooperation. Their favored victims include photographers and cake-makers forced to support gay weddings (see David Brooks and Ross Douthat in the New York Times.) This should be instructive to proponents of LGBT equality: what Christians are concerned about is being forced to participate in a specific event when such participation, according to traditional Christian doctrines of complicity, would count as sinful cooperation. Christians are worried about their own souls rather than controlling the behavior of others, and are certainly not demanding a general right to discriminate against LGBT persons in everyday business transactions. Unless LGBT advocates are primarily motivated by malice, they should be sensitive to the fact that forcing their neighbors into such cooperation is tantamount, in the minds of their neighbors, to wishing them into hell.

On the other hand, LGBT advocates are attacking the Indiana law on the grounds that it licenses blanket discrimination against sexual minorities. Most such advocates are concerned about access to “pediatricians … pharmacies, daycares [and] private schools for your children,” argues Garrett Epps in the Atlantic. Public accommodations “are about being able to shop and eat in public without exclusion and humiliation.” Epp here identifies two concerns: on the one hand, safeguarding his welfare interests, that is, his access to those goods, services and opportunities necessary for any human being to flourish, and safeguarding his self-esteem and personal dignity on the other.

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However, Epp goes on to argue that photographers and cake-makers as well as essential service providers should be forced to “take all customers” even if this torments them—as if what Christians were worried about having icky feelings rather than the eternal destiny of their souls. Epps justifies his avowedly non-punitive willingness to torment his neighbors on the grounds that “any human inequality supported by law is a dangerous and unstable flaw in the fabric of democracy, and that the result of lifting artificial barriers [like Christianity?] is usually renewed energy, solidarity, and progress.”

Progress indeed. Progress in a pluralistic society should involve compromise. Christians need to guarantee equal access to the material and social sources of human flourishing, and LGBT advocates need to guarantee that their lifestyle choices do not threaten the salvation of Christian souls according to Christianity’s own dogmas rather than those of its cultured despisers.

LGBT Coercion Violates Liberal/Christian Ideals
One way to make genuine progress would be for both Christians and LGBT advocates to endorse a “harm-to-others” criterion of religious expression. This principle has a long history in liberal social philosophy, which begins with the assumption that individuals should enjoy the maximum amount of freedom consistent with everybody enjoying the same liberties, as philosopher John Rawls put it. The burden of proof lies with those who would limit autonomy, and such a proof is traditionally held to be met when one person’s exercise of autonomy constitutes “harm” to another.

Although most people are familiar with the liberal articulation of the principle, the principle has its roots in Christian thought. Christianity has long recognized that respect for pluralism and difference do not undermine its claim to truth. Christ calls difference “the world” (John 18:36), and while some worldliness is sinful and some is merely ignorant, the world is at the same time redeemable. Christ illuminates it like a light in the darkness (Jn. 8:12). This is the insight the Catholic Church expressed in its Vatican II document, Dignitatis humanae: that while error has no rights, people in error are worth saving (no. 2). In other words, Christianity conceives itself as fundamentally missionary and evangelical in character: Christians are to make disciples of all nations through the witness of their lives and the power of their preaching. As the Council fathers put it,

Truth … is to be sought after in a manner proper to the dignity of the human person and his social nature. The inquiry is to be free, carried on with the aid of teaching or instruction, communication and dialogue, in the course of which men explain to one another the truth they have discovered, or think they have discovered, in order thus to assist one another in the quest for truth. Moreover, as the truth is discovered, it is by a personal assent that men are to adhere to it. … No merely human power can either command or prohibit acts of this kind. (no. 3)

Christians should win the world with and for love.

A direct implication Christianity draws from this idea is that there is an internal limit to the scope of law. For example, St. Augustine counseled that secular law should leave unpunished many things punished by divine providence (De lib. arb. i.5). St. Thomas Aquinas likewise wrote that

human laws do not [should not] forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft, and such like. (Summa Theologica, I-II.96.2)

Aquinas’s argument is that, just as putting new wine in old wineskins will cause them to burst (Mt. 9.17), so too should law “lead men to virtue not suddenly, but gradually” (ST, I-II.92.2 ad. 2). Like grace, law must accommodate itself to the human condition, including the condition of sin. Christian law should therefore restrain itself in its dealings with sinners and unbelievers, not because the law thinks the concept of law itself is false (like the post-modern skeptic), and not because it approves of everything sinners and unbelievers might to with their freedom, but rather because it loves them and wants them to see as it sees and this is only possible if it “respects their subjectivity” and they change their hearts.

The Christian tradition thus prescribes charity towards the sinner rather than merely political tolerance, at least towards acts that are fundamentally self-regarding. The difference between charity and tolerance is that charity sometimes allows what it nevertheless condemns as unsuitable for human beings made in the imago dei; tolerance just keeps its mouth shut. Charity refrains from paternalistically coercing self-improving acts and the proscription of self-regarding vicious acts because “the truth cannot impose itself except by virtue of its own truth, as it makes its entrance into the mind at once quietly and with power” (DH, no. 1). This is consistent with the Christian mission to evangelize the world; Christians witness rather than command.

One can find echoes of Christianity’s favoring a policy of legal restraint as late as John Stuart Mill’s On Liberty. Like Aquinas, Mill argues that the scope of law should be limited to actions which harm others, where “harm” means roughly something like wrongfully and in violation of a right invades someone’s welfare interests—that is, seriously incapacitates them for flourishing. Mill famously denied that giving offense and setting a bad example constitute harm to others—contrary to Epp’s supposition. Although such actions might be morally wrong, Mill agrees with Aquinas when he writes that “these are good reasons for remonstrating with [the offender], or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise” (On Lib. 4).

Thus, according to the liberal poster-boy Mill, Epp should remonstrate with Christians but not coerce them into taking his picture, and according to Aquinas, Christians should be free to evangelize Epp but not free to refuse him access to the universal sources of human flourishing. If either takes offense at this, tough luck: that’s what happens in a pluralistic society. No one has a right to pleasant feelings.

Why LGBT Blanket Demands for Service are Absurd
LGBT advocates argue that doing business in a pluralistic society entails the concession that one serve everyone regardless of their differences: business is an “other-regarding” act. Our culture asserted this when it defended equal civil rights for racially diverse Americans, and it should do the same for LGBT persons as well. Christians argue that the specific cases they’re concerned with–gay weddings, not essential services–aren’t analogous to civil rights law because that body of law is concerned with a general license to discriminate, which no orthodox Christian rightly desires.

I think the Christians are on the right side of this disagreement using principles both liberals and Christians can agree on. Consider why a business must make concessions about who it may serve in the first place. This obligation is rooted in the “harm-to-others” principle, and specifically at those situations wherein the failure to do business with someone is a blameworthy failure of omission that sets back their welfare rights.

However, as economist John Galbraith argued (no conservative himself), neither modern economics nor liberalism distinguish between wants and needs. They only have a blanket term, “demand,” which needs no justification. This entails that consumers have the right to demand any good or service whatsoever without talking about the nature and value of the good in question. That’s absurd. As Aquinas argues, there are circumstances when I can claim food from someone with surplus food as satisfaction of a welfare right–-think of the starving Jean Val Jean stealing bread from a bakery—but under what circumstances could one claim a welfare right to photographs? Moreover, if the act of the principal agent is wrong—perhaps Bob wishes to purchase a gun in order to murder his neighbor—most of us recognize we have an obligation not to assist him in the undertaking. The Doctrine of Material Complicity illustrated by the example is not even a Christian principle: Socrates gave the same example to Cephalus in the Republic around 380 BC.

No wrongful or assignable harm is being done by not providing cakes, photographs, or premises for (what Christians believe are) sham weddings they have a moral obligation not to participate in. LGBT persons may want the cooperation of objectors in their weddings, but the objector’s refusal to cooperate does not set back a welfare interest—only feelings get hurt—and no one has a blanket right to have just any old desire satisfied anyway. Thus the objector’s refusal is neither wrong nor in violation of a right. One might even go so far as to argue that, given the widespread availability of cooperators in such weddings, objectors are not even liable for the inconvenience their non-cooperation causes. That’s a normal cost of shopping in a competitive market. If LGBT advocates won’t accept this argument, they must either reject the harm principle or else explain why, say, a Roman Catholic priest’s refusal to marry two anti-Catholic Protestants, a man and his dog, or to give a professing atheist Holy Eucharist constitutes a violation of the “harm-to-others” principle. Prima facie, there’s a much clearer case to be made that coercing the priest to violate his faith on pain of hell constitutes a wrongful and assignable harm to his welfare interest in the eternal destiny of his soul.

In contrast, anti-discrimination law has as its paradigm case those actions in which someone wrongfully refuses to provide services that invade someone’s legitimate welfare rights due to an irrational bias against characteristics of persons irrelevant to the transaction. Precisely because skin color is irrelevant to letting apartments or performing skilled work, for example, and because public racism unjustly depreciates the inherent dignity of racial minorities, such racism is rightly proscribed by the law. In fact, I’d argue that we rightly extended such reasoning in civil rights law to less-than-harmful transactions that encourage the harmful paradigm cases. For their part, Christians have a positive obligation to assist their needy neighbors as a matter of justice. Both the Old and the New Testaments teach that succoring the poor is the duty of everyone regardless of one’s responsibility for their destitution (Is. 58:7, Lk. 10:29-37). Moreover, just as Christ took upon himself the guilt of all men, so too are Christians called to feed the hungry, clothe the naked, visit the prisoner, support the widow and orphan, and so on—and all of this regardless of the race, sex, nationality, or orientation of such neighbors (Mt. 25:35).

Except for the fact that both cases involve someone refusing service, we must therefore conclude that the cases are not at all analogous. The “harm-to-others” principle shows that Christians have an obligation to provide for the welfare interests of LGBT persons, but not to cooperate in their weddings. That’s a pretty narrow legal accommodation. Perhaps a LGBT advocate can provide a convincing argument otherwise, one in which the burden is to prove that offense constitutes harm, and that the non-cooperation of individuals in a largely cooperative society is sufficient for liability—but I think not.

Moreover, not only should Christians be reminded of their obligation to succor the needs of their neighbors, but Christianity has widely accepted conceptual resources to absolve them of wrongful cooperation in the immoral lifestyles of their neighbors. Christian hospitals and consumers have long used the Principle of Double Effect and the Doctrine of Material Complicity to argue that Christians can provide goods and services that indirectly support the immoral actions and lifestyles of others—say, selling home to a gay couple or manufacturing scalpels which might be purchased by abortion providers. Both principles are carefully nuanced, but if we didn’t have such principles, not only could we not give to Caesar what’s Caesar’s, but we couldn’t fulfill our obligations to make disciples of all nations, starting with sinners and our enemies; only Pharisees refuse to eat with tax collectors and prostitutes.

The point is that Christian’s don’t need special accommodations to fulfill their religious mission, and LGBT advocates don’t need unjustly coercive laws to guarantee their welfare rights—just a body of law that reasonably expresses time-honored moral principles from both of our traditions.

(Photo credit: Brandon Smith / Indiana Public Broadcasting)


  • Joshua Schulz

    Joshua Schulz teaches moral philosophy in the Catholic intellectual tradition at DeSales University in Center Valley, PA. He earned his doctorate in philosophy from Marquette University in 2010.

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