A great deal is at stake. The sexual revolution is just that—a revolution—and revolutions often pose a dire threat to liberty. The logic of the Supreme Court's discovery of a right to same-sex marriage poses a threat to anyone who dissents. It's not unreasonable to suppose that the next stage of the gay rights Jihad will involve political action to defund organizations that refuse to affirm gay marriage, or even to work to revoke their tax exempt status.
To forestall such possibilities there's a bill in Congress, the First Amendment Defense Act. Good. Necessary. But a recent article by Rick Garnett, John Inazu, and Mike McConnell argues that the proposed legislation is too broad. We should focus on protecting the freedom of religious non-profits, they say.
In response, Ryan Anderson and Robby George argue for the full scope of the First Amendment Defense Act. They say that if we're going to protect the freedom of religious non-profits, we should also protect secular non-profits, for-profit companies, and individual conscience, broadly understood. There's no principled reason to do otherwise, they say.
To my mind, Garnett, Inazu, and McConnell are right to narrow the focus, giving priority to protecting religious non-profits in our political efforts to secure an enduring freedom to dissent from gay marriage orthodoxy. And I base my agreement with them on principled reasons.
The Founders singled out religion for special protection in the First Amendment. They did so because they recognized the unique fervor of religious convictions and the remarkable tenacity of religious institutions. Best to keep government at a distance for fear of stirring up social strife—a good reason to give priority to religious organizations over secular ones.
In his reflections on the dangers that modern democracy poses to individual freedom, Alexis de Tocqueville expresses a dour assessment. Democracy claims to prize the individual, but it steamrolls us in practice. Non-governmental institutions and associations, by contrast, have weight. They can fend off the power of government. This is a reason to privilege the freedom of organizations, and given the tenacity of religious conviction, to privilege religious ones over secular ones. The freedom of Notre Dame to dissent from the sexual revolution does more to protect my liberty than parchment promises of freedom of conscience, because the institution has weight and prominence. It gives dissent an institutional form that's more politically powerful than individual dissent. For this reason, a focus on religious institutions doesn't sell out individual conscience. It creates social space for individual conscience.
Still another reason to give priority to religious organizations is found in the Vatican II declaration on religious freedom, Dignitatis Humanae. The Fathers at the Council singled out religious freedom because they saw (accurately) that our religious convictions and practices bring to fruition, however imperfectly, our deepest purpose as human beings—to know and love God. Thus the state must be especially solicitous of the religious dimension of our lives.
Finally, there's a practical, real world reason for focusing on religious non-profits. It's extremely likely that the only significant, ongoing dissent to gay orthodoxy will come from religious people and the institutions they run for the sake of living out their faith. The Founders again: religious convictions are uniquely powerful and tenacious because tied to our loyalty to God. Thus, it makes sense for legislation to be focused on what will almost certainly be the main problem, which is the coming collision of state-sponsored sexual orthodoxies and the clear teachings of the Christian tradition.
The goal of the gay rights project is affirmation. Our ongoing refusal to provide affirmation is an offense that gay activists claim is an assault and harm to gay people. This claim will be used to justify forceful applications of state power to coerce us: revocation of accreditation to educational institutions, attacks on tax-exempt status, and other methods of imposing sexual orthodoxy. We need legislation to restrain the gay activists that are now such a powerful element in the Democratic Party. By my reckoning, the best place to start is with religious institutions, because that will be where the culture-defining battle is fought.
R. R. Reno is editor of First Things.