Who’s Afraid of Religious Liberty?

The following article is written by Richard Samuelson from a Jewish perspective but it applies equally to all religions. Over recent years I’ve gradually come to the realization that anti-discrimination laws are not compatible with liberty. Anti-discrimination laws conflict with the freedom of speech, the freedom of association, and the freedom of religion. Samuelson’s excellent article summarizes many of my thoughts and concerns.

Who’s Afraid of Religious Liberty?

Seeking to prohibit every kind of “discrimination,” activists in and out of government threaten the free practice of, among other faiths, Judaism. . . .

What this meant in practice was that Wasps were free to keep Jews out of their country clubs, and Jews were free to organize their own clubs. Similarly, Americans were generally free to refuse service to whomever they chose, for whatever reason they chose, and to decide with whom to associate in their daily affairs.

The same held for the free exercise of religion: by its very nature, the very thing that allowed Jews to be free and equal members of American society also allowed private discrimination in matters of faith. Indeed, with some notable exceptions—the persecution of Mormons in the 19th century being a conspicuous example—America was able to guarantee a robust area of religious liberty precisely because, just as the federal government generally left Americans free to act or not to act, to speak or not to speak, so it also left them free to worship or not to worship, to conduct or not to conduct their religious lives, as they chose. . . .

For most of American history, for better or worse, the common view was that private institutions, companies, clubs, and so forth had the right to choose with whom to associate and not to associate, whom to accept as customers, whom to decline or refuse to serve. There were, to be sure, exceptions: by law, a small class of businesses, most notably railroads and other conveyances, as well as inns and public amusements, had to take all comers. Somewhat more broadly, the same rule applied to monopolies, like the local grain elevator. The class was narrowly defined precisely because the liberty to associate with whom we choose was recognized as essential in a liberal nation that made a hard distinction between the realm of the state and the realm of civil society.

In the past half-century, America’s robust civil society has become increasingly subject to government regulation. The change was originally impelled by the best of reasons—namely, to end Jim Crow laws and to fight against racial segregation: the signal exceptions to the liberal program in America.

When it came to race, early America did not simply allow individuals to “discriminate” if they chose to do so. On the contrary, the government positively required such discrimination. Both slavery and segregation were creations of law. Throughout the South, government not only segregated public places and activities but also forced private corporations—railroads, restaurants, and other places where Americans gathered—to maintain separate sections for blacks and whites.

Segregation was expensive; the laws were designed to ensure that greedy capitalists did not save money by “forcing” whites and blacks to sit next to each other—precisely the happy outcome that 18th-century political philosophers had predicted would emerge once government left people free to go about their business together.

Note that I think the government forcing a business to discriminate is just as much a violation of liberty as the government not allowing a business to discriminate. Liberty requires that the business, not the government, determines with whom and in what way it will do business.

In the American South and elsewhere, Jim Crow laws subverted the market and the tolerant attitude it fostered.

It was to remedy this situation that Congress would eventually assert the right of the federal government to regulate not only local and state governments but civil society itself in an unprecedented manner. The instrument was the Civil Rights Act of 1964. Outlawing discrimination based on race or color—as well as religion, sex, or national origin—the act aimed mainly at undoing racial segregation in schools, workplaces, and “public accommodations”: in essence, what the legal scholar Richard Epstein dubbed “the totalitarian nature of the Old South.”

It is difficult for us at this distance to appreciate the radicalism of the Civil Rights Act. Law can change two things. It can change behavior regarding the particular problem it addresses; it can also change how citizens understand the purpose of law and the liberty that law is supposed to protect. The Civil Rights Act did both. A half-century after its passage, we are a very different country. . . .

In principle, the 1964 Civil Rights Act held that people were still generally free to decide with whom to associate, being prohibited from discriminating against only a small list of people in what the Act designated as “protected classes.” As Epstein has observed, the original law exempted some small businesses like the proverbial “Mrs. Murphy’s boarding house.” But it also declared that henceforth almost all businesses, and all charitable institutions, were, in essence, “public accommodations” in the eyes of the law. As such, the federal government had the right to tell every business whom it must serve or, even, hire.

Although the law was justified under the Constitution’s commerce clause, its purpose was not economic. It was social. In the service of that purpose, the government would come to regulate more and more aspects of our lives, creating a federal “police power” of the kind delegated by the Constitution exclusively to states and localities. Over time, and (ironically) as the racial situation improved, the enforcement mechanism applied by bureaucrats and legislators worked to make the law not less restrictive of civil rights but more so.

It is useful to recall that when the law passed, much of the new intrusion into civil society by government was recognized as a temporary measure, to meet a particular exigency. Even a progressive lion like Justice William Brennan recognized the temporary nature of, for example, affirmative-action programs that ran counter to the colorblind ideal. Indeed, Brennan thought such programs could be justified only as a temporary, remedial measure. A half-century later, however, many Americans have assimilated these intrusions into their understanding of the regular job of government. . . .

Do any Americans still understand the prohibition of discrimination as an exception, and a carefully hedged one, to the general rule of liberty? There is reason for skepticism—and nowhere more so than in the area of religious liberty. . . .

Traditional Judaism, after all, depends entirely on discriminating in the original sense of distinguishing: between holy and profane, Sabbath and weekday, man and woman, Jews and others. Such discriminations cannot be reworked without transforming classical Judaism into something unrecognizable to many Jews. Will Jewish institutions be able to withstand today’s freewheeling assault on religious liberty? Or will the enforcers of state-mandated “non-discrimination” not rest easy until they complete their Orwellian campaign of positive discrimination against every last dissenter from the progressive line? . . .

What goes for the freedom of association goes also for the freedom of expression and of religion: thanks to today’s “anti-discrimination” crusade, they, too, are slipping away. Already in his 1962 lecture, “Why We Remain Jews,” from which I have been quoting, Leo Strauss warned against efforts to end “discrimination,” period. This enterprise, he predicted, would kill liberalism. “The prohibition against every ‘discrimination,’” he said, “would mean the abolition of the private sphere, the denial of the difference between the state and society, in a word, the destruction of liberal society.” (Sensitive to the newly invidious sense of the term “discrimination,” Strauss insisted on using it only with quotation marks. “I would not use it of my own free will.”) Absent that private sphere, he concluded, Jews would no longer be free to be Jews in America.

David Bernstein’s follow-up article is also worth reading.

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