A response to Michael P. and "Religious Liberty in the Culture Wars"

Michael Perry linked here to John Gehring's recent post at Commonweal, "False Choices & Religious Liberty."   Michael says the piece is "terrific" and "balanced."  I'm afraid I cannot agree, notwithstanding my appreciation for Mr. Gehring's past work with the USCCB.

Now, I tend to prefer center-right policies on most issues, and Mr. Gehring works for a progressive public-policy agency, and so it's not remarkable that he and I evaluate differently some of the current policy debates in which the right to religious-freedom is implicated.  (Certainly, we both agree that there is a place for -- as his agency's title puts it -- "Faith in Public Life.")  Still, my disappointment with the piece is not, I think, a result of this difference.  In my view, the piece to which Michael linked does not accurately describe -- indeed, it tendentiously describes -- those debates.  As I see it, Mr. Gehring labels certain very real choices as "false" as a kind of short-hand way of contending that one choice rather than another should be made.

For starters, after saying that the debate over religious liberty is "unhinged" -- though his criticism is clearly directed only at the USCCB's "side" of that debate -- he writes:

At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

It's hard to see this sentence as an invitation to dialogue, balance, or re-hinging.  This sentence simply repeats activists' talking points -- it is, in fact, not the case that, generally speaking (there are always exceptions), religious liberty has been "perver[ted]" into a "bludgeon" for any such purpose.  It is, instead, being employed, defensively, against activists and powerful interests who are invoking "women's health, workers' rights, and LGBT equality" in order to marginalize, and often demonize, traditional religious believers and to interfere with the religious missions of religious institutions.  It is all well and good to bemoan the "culture wars" -- I regret them, too, and wish they would cease -- but, despite what some commentators say, the fact is that these "wars" are being waged more by Apple and Planned Parenthood than by the USCCB.

Next, Mr. Gehring's piece's claim that the "choice" between a meaningful right to religious freedom and equality, health care, etc., relies heavily on an implicit assumption that religious institutions -- like Catholic schools and hospitals -- are simply wrong in their religious commitments.  So, he lists among the perversions of religious freedom those schools that have fired teachers who have entered into legal same-sex marriages, but doesn't seem to acknowledge these schools' argument that, as Catholic schools, they have as part of their mission forming students in the Church's moral anthropology and understanding of marriage and that -- no doubt with great regret -- they don't have many options in these situations.

Then, Mr. Gehring pivots and observes that "progressives also need a better approach that fosters dialogue and common ground instead of division."  And, indeed they do.  I've been a part of a number of legislative and other efforts -- in partnership with scholars who identify as progressives -- to find such common ground, but I'm afraid it's been very challenging.  The reality is that even reasonable accommodations, let alone genuine appreciation for what my friend John Inazu calls "confident pluralism," doesn't hold much appeal for progressive activists and politicians at the moment.  For many, it's easier, it seems, to call people "bigots" or to insist that religious-freedom must yield to the demands of the current understanding of the antidiscrimination norm.  (More on this point, from me, in this paper.)

Unfortunately, it is quickly back to unhelpful and incomplete accounts of the issues at stake.  Particularly unfortunate is his embrace of the partisan and inaccurate descriptions of the various state-level RFRA proposals that have become so controversial.  He repeats the false claim that these laws would allow public-accommodations discrimination against gays and lesbians and so are like odious Jim Crow laws.  (For a more accurate account of the Indiana proposal, in particular, see this . . . by me.)   He concludes with this:

It’s wrong to pit religion against equality for all Americans. False choices box us into suffocating corners. Saving religious liberty from the quicksand of reckless rhetoric and political posturing won’t be easy. Progressives and conservatives squaring off in public debates have a choice. We can continue to exchange dueling press releases and self-righteous tweets—or sit down, humble ourselves, and search for common ground. “Come now, let us reason together, says the Lord,” the prophet Isaiah tells us. The comfortable and convenient path is well worn. Taking a harder road is worth the struggle if it leads to principled conversations and respect for the complexity of conscience.

There are some good ideas here but, again:  The fact is that religious-freedom claimants are seeking accommodation, not a complete win.  Respecting the "complexity of conscience" doesn't mean fining bakers and photographers, or pulling religious colleges' accreditation, or denying federal funds and contracts to religious social-service agencies that adhere to orthodox Christian teachings on sexuality and family, or requiring Catholic hospitals to provide abortions, or mandating that religious universities change their student-life and housing policies to match the current Administration's views on gender.  Lord knows I'm sick of smug, snarky, and self-righteous tweets.  But, to "humble" oneself means to not dismiss efforts to resist religious-freedom-burdening mandates and penalties as "perversions" and "bludgeons."

For my own part, I'm entirely open to working and talking with Mr. Gehring, or anyone else, about the "search for common ground."  But the search won't get far if one characterizes one's interlocutors' positions and aims in the language of "dueling press releases."