"I cannot be free while my neighbor is wearing chains." These are the words of novelist Walter Mosely, but they echo a familiar refrain of the Civil Rights movement. They are rousing words, and seem, intuitively, to be true. A society in which black people (or serfs, immigrants, women, clones) are not free is by definition one in which white people (or nobles, natives, men, the customarily conceived) are not free either.
What if this idea is a nonsensical libertarian fairy tale? What if, in fact, freedom cannot be shared equally throughout a society, because some freedoms are mutually incompatible? Let's not reduce this to absurdity, either; obviously, certain people -- criminals, lynch mobs, Nazis -- cannot be "free" to harm others. Let us speak only of people whose values and goals fall within the boundaries of civil society. They do not seek to inflict positive harm upon anybody else, but only to live their lives as they see fit. Is it possible that they can do no such thing, because to live their lives inevitably means harming somebody else?
Think of the Amish. For reasons that the rest of us have a difficult time grasping, they chose long ago to freeze the material development of their society at a certain point in time. The decision to drive horses in the age of the automobile, however removed from any particular teaching of Jesus, is for them an exercise of religious freedom. And yet the complete and unfettered exercise of this freedom -- say, driving black buggies down public highways at night, without any lights or reflectors -- would impose upon the freedom of other citizens to drive fast modern cars on those same highways. (At least without killing anybody). And so the Amish are required to use reflectors.
Amish communities have also been involved in conflicts with the government over education law, photo-IDs and sewage. Here's a little more. Resolving these conflicts has been comparatively easy; the Amish are a very small group, generally well-liked by other Americans, who regard them the way one does an eccentric uncle.
But what if instead of funny German-Americans and their horse-drawn buggies, this were about Pakistani immigrants and their veils? The tone of the debate would change quickly. On the matter of photo ID, Pennsylvania caved, and allowed the Amish to carry cards without pictures. Some Muslim women in other states have asked for the same privilege, and the public outcry has been significant.
The recent Republican rabble-rousing against Shariah strikes us as absurd. Jokes about HaileyBarbour aside, we have a hard time imagining the circumstances under which America's courts or legislators would countenance the use of religious codes (Muslim, Roman Catholic or anybody else's) as a replacement or even a supplement to the civil and criminal codes established by the state. But of course there are countries, such as Nigeria, where it is done this way -- and part of the argument for the practice is that it respects religious freedom.
Even Israel, our supposedly modern democratic friend in the Middle East, makes legal exceptions for its ultra-Orthodox communities. So, for example, men and women were required to sit separately at a recent government ceremony -- because the civil liberty of a one man to sit beside his wife interfered with the religious liberty of another man to keep the sexes separate.
Over the past few years, and especially the year just past, some religious communities in the United States have registered their concern that the spread of same-sex marriage will restrict their religious liberty. In its early, crude, and misleading form, the argument was made that churches would be punished under civil-rights laws for refusing to conduct such marriages; this flies in the face of centuries of jurisprudence.
The newer form is less ridiculous. While the government has little incentive to shape religious ceremonies, it has long been a partner to churches involved in health-care, adoption, and similar work. Just as some Christian hospitals have struggled with laws which treat abortion as a matter of right, so many adoption agencies will struggle with laws which require them to treat same-sex couples just as they treat different-sex couples. It is easy to imagine
The case is made is a simple manner by a document called "Marriage and Religious Freedom: Fundamental Goods Which Stand or Fall Together." It is signed by the usual suspects: Richard Land, Timothy Dolan, and -- making their first appearances in the world of church leaders who sign meaningless collaborative documents, the new leaders of the LC-MS and NALC. It's not a great document, and we are suspicious of its more extreme interpretations. But this passage seems to describe a realistic possibility:
So, for example, religious adoption services that place children exclusively with married couples would be required by law to place children with persons of the same sex who are civilly “married.” Religious marriage counselors would be denied their professional accreditation for refusing to provide counseling in support of same-sex “married” relationships. Religious employers who provide special health benefits to married employees would be required by law to extend those benefits to same-sex “spouses.”
Such things might happen (although the recent SCOTUS decision suggests otherwise). One question is whether they are bad things, and if so how bad. But the pressing question, philosophically and legally, is whether the respective freedoms -- of the states to determine which marriages are legal; of the churches to determine which marriages are holy; of couples to adopt, counselors to choose their clients -- can be made compatible, or whether somebody will always have to lose.
It's all very tricky, though, because many of the possibilities do not involve actual legal punishment of recalcitrant churches, so much as the withdrawal of the government and its money from their activities. While sad, and extremely difficult in practice, this may not be the worst thing for a cash-strapped democracy. Saying that "we won't help your adoption agency" is somewhat different from saying "your agency must shut down." although in practice the effects are likely to be similar.
The problems of adoption and employment strike us as being murkier than, but parallel to, the argument made by Muslims in many parts of the world. In addition to the mobs which express outrage when a newspaper prints a cartoon purporting to represent Mohammad, there are sober intellectual voices which propose that this exercise of free expression is, at the same time, a limitation of somebody else's religious freedom.
In both cases, adoption or cartoons -- not to mention seating at award ceremonies -- it seems to us that the emerging rhetoric of religious conservatism claims that the free exercise of religion means the freedom of religious people to do whatever they like, without criticism and with the complete support of the state and its laws.
Obviously, they are asking for too much. But what, if anything, can they ask for? What respect can a secular democracy pay to the different convictions of particular religious communities, without favoring one above another, or limiting the liberty of those with no religion at all? Or, to put it another way: What chains can we be asked to wear in support of our neighbor's freedom?
We have no ready answers. But we expect to see the question posed ever more sharply in the years to come.