In an October 10 article entitled “The Next Culture War,” Reihan Salam raised an important question: if the Supreme Court’s recent decision — to allow lower court rulings overturning same-sex marriage bans to stand — really does point to the beginning of wider state acceptance of same-sex marriage, what will become the next controversial position in the culture wars? Salam presents an array of possibilities: from a split between progressives over whether recognition of same-sex marriage is simply an expansion of our understanding of traditional marriage or whether it is the first step away from seeing marriage as inherently monogamous, to a move by conservatives away from straightforward opposition to Roe v. Wade to rejection of new fertility technology, such as artificial wombs. Most intriguingly, Salam wonders whether “the next culture war could pit devout secularists against a shrinking religious minority determined to live in accordance with their beliefs.”

Specifically, as mainstream culture moves away from practices developed out of religious beliefs, will the dominant culture be open to providing exemptions for actions which Christians (or adherents of other religions) believe are mandated by their faith, even if those actions may be contrary to neutral and generally applicable laws?

Although the article identifies this fear as one advanced primarily by religious conservatives, the view is more widespread than Salam’s article necessarily allows. The question of how American courts should treat requests for religious exemptions from neutral and generally applicable laws, especially in the wake of the Supreme Court’s 1990 decision in Employment Division v Smith, is hotly contested among a number of legal scholars. After all, how can we justify granting exemptions or special protections to actions motivated by religious beliefs in a nation committed to equality? Why are claims of religious belief any more compelling than requests for exemption that are based solely on moral and philosophical conviction?

I hasten to add that the proponents of these views, scholars such as Andrew Koppelman, Christopher Eisgruber, Larry Sager, and Micah Schwartman, are eager to distinguish themselves from radical secularists who hate religion or who automatically implicate religion as a source of evil in the world. In fact, many of them explicitly reject a Rawlsian notion of public reason, which would foreclose any mention of religion as an epistemic support for claims advanced in the public square. Rather, they raise the question of whether the special status that the Free Exercise Clause of the First Amendment seems to accord to religious practice is relevant or acceptable in this day and age. Why should a church, for example, be given an exemption from zoning laws to operate a homeless shelter or a rehab house in accordance with Christian teaching on the care of the poor, when other groups, motivated by moral or philosophical convictions, would not be granted an exemption to carry out their own purposes? The view of most of these authors is that, in a nation committed first and foremost to equality, it is unacceptable to allow exemptions that burden others or that are not applicable to those lacking religious convictions. In other words, the Church does not get a free pass, nor does any other group.

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While this conclusion may be disheartening to those of us who see a necessary connection between religious belief and practice, and who, as Christians, believe that our citizenship in a heavenly kingdom takes precedence over obligations to obey earthly laws, it should not be surprising. In the review article “Discourse in the Dusk: The Twilight of Religious Freedom? (Harvard Law Review 122:7), Steven Smith claims that any understanding of religious freedom, at least in the Christian West, has always been grounded in theological convictions. The idea that legal exemptions should be permitted for religious belief depended on the public acknowledgement of the reality of two jurisdictions: that of the temporal realm and that of the spiritual. In our modern discourse, the retreat of religious belief has resulted in a recognition of only one source of political authority: the State. Positively, this acknowledgement has often motivated a deep commitment to ensuring that the State’s legal system promotes justice and equal treatment. Negatively, this diminishment of any public acknowledgement of competing sources of authority outside the State may make it impossible to understand why the State should strive to provide freedom to pursue actions based on religious belief.

If Smith and Salam are right that the questioning of religion’s status will be a site of conflict in the next culture war (or wars), what should Christians be considering now? Perhaps one way to prepare would be a self-critical analysis of the recent failures — among both conservative and liberal Christians — to come up with positions which take, with sufficient seriousness, St. Paul’s warning that preaching Christ crucified is both foolishness to the Greeks and a stumbling-block to the Jews (1 Cor. 1:23). One failure that Christians on both sides of the culture wars have held in common has been a regrettable tendency to fail to differentiate between Christian teachings and certain values imported from the culture around us. The United States Conference of Catholic Bishops has issued a statement whose cover showed a cross wrapped in an American flag; evangelical pastors routinely identify being a Christian with support for gun rights or American foreign policy. Meanwhile, prominent clergy from mainline Protestant denominations often seem incapable of providing theological articulations for their advocacy of positions departing from the Church’s traditional stance, alluding instead to solely secular conceptions of justice or simply a fear of being “on the wrong side of history.”

I’m not arguing that, as Christians, we need to ignore the particularities of our own context or that our beliefs are purely abstract and not inevitably shaped by the culture in which we live. St. Augustine would remind us that the foolishness of the Stoics was thinking they could escape the constraints of time to pursue beatitude: we should work for and appropriately value the goods of the earthly kingdom as well as the heavenly. Rather, I’m hoping that, just maybe, before the next wave of the culture wars rolls over us, both progressive and traditional Christians might take the time to consider how we can do a little better in the future. Although the secular world no longer acknowledges two jurisdictions, we as Christians still should. What are the beliefs that are so integral to our faith that we must act upon them, even in the face of laws that allow no room for religious exemption? What are the convictions we hold in common with all our brothers and sisters in the faith (and in other faiths) that we can act upon together, even in opposition to the cultural consensus? What can we both contribute to and benefit from by living in a culture that, while not actively hostile to religious practice, is definitely less hospitable than it has been before?

The image above is “The Corner of Church and State” (2010) by Flickr user Wyoming_Jackrabbit. It is licensed under Creative Commons. 

About The Author

Elisabeth is assistant professor of moral theology at Nashotah House Theological Seminary. She received her PhD in Theology from the University of Notre Dame, where her dissertation focused on reclaiming the theological jurisprudence of the 16th-century Spanish theologian and legal scholar, Francisco Suárez.

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