Christian Conscience, Christian Institutions, and Behavior Based Antidiscrimination Doctrine

The severe legal threat to the free exercise of traditional Christianity continues to grow

Then is when faithful Christians must not compromise, but rather will have to become an underclass, or stated differently, internal exiles within American society. Those who do compromise are not only sinning through compromise, as noted in the Biblical and confessional passages, and therefore absolutely wrong, but also will likely come to accept sin as righteousness, because in routinely violating their beliefs, their beliefs will change. It is, of course, this for which the cultural left hopes. There is nothing to be gained in advancing the kingdom of God by compromising with sin. It is both absolutely wrong, and self-defeating.


Despite the intense concern of faithful Christians, and serious effort at legal protection in the last two years, results have been frustrated by corporate coercion, media hostility, and judicial moral decrees imposed as legal judgments. The severe legal threat to the free exercise of traditional Christianity continues to grow. At risk is really all of Christian life, which must be separate from sin, and from compromise with sin. This includes not only Christian merchants and professionals offering their services to the public, but also Christian social services, such as educational institutions, hospitals, schools, and publishing and broadcast organizations. Less directly, but still within the sights of the secularist enemies of religious liberty, is the internal life of families and churches. The strongest weapon against Christianity today is antidiscrimination law and policy, particularly as pertains to homosexuality, but more generally in any matter related to sex. Beyond that, a prevailing doctrine of inclusivism is hostile to exclusivist religious requirements.

As this writer noted in an article last year shortly before the same-sex marriage decision, the legal attack on Christian sexual morality, which shares with other religions and the human moral sense in general from antiquity the belief that sexual activity outside of marriage is defiling and evil, began in the 1960s and 1970s. The U.S. Supreme Court then declared, based on its observation of the concern for freedom in the Bill of Rights, and its own intuition of a morality superior to the Bill of Rights, that private decisions about sexual matters are just too personal for adverse judgment. Originally, in the Griswold vs. Connecticutdecision (1965), sexual autonomy was concerned only with the use of contraceptives by married couples, but revolutionary 1970s decisions extended this personal autonomy to contraceptive use in non-marital intercourse and the right to abort an unborn child. Sustaining the latter right in the 1992 Planned Parenthood vs. Casey decision, it was found that “intimate and personal choices” are part of the “liberty” guaranteed by the 14th Amendment. The conflict with religious liberty has come when “civil rights” laws extend this immunity from adverse judgment beyond state action restricting sexual behavior to private discrimination against sexual behavior. People wonder why sexual rights, not mentioned in the Constitution, supersede religious rights, which have a primary place in the First Amendment. The Griswold decision tells us – sexual rights are known by the intuition of Supreme Court justices to be “older” than the Bill of Rights.

The deck has been stacked as far as the gravest threat to religious freedom is concerned, the issue of homosexuality, since the 1990s, when the Supreme Court made clear its attitude that opposition to homosexuality in law is illegitimate. In the seminal Romer vs. Evans(1996) case, advocates of religious liberty emphasized that their desire, in passing Colorado’s Amendment 2, prohibiting local homosexual rights ordinances, was to protect the religious freedom of merchants against having to contribute to homosexual behavior. This is the very issue with which the nation is struggling today, and it is sobering to realize that the court decided against religious liberty years ago on this issue. The law placed a civil disability on no one; it simply precluded a protected status for homosexual behavior. In line with the earlier Planned Parenthood vs. Casey (1992) decision and its “mystery of life” clause, which found an individual right to define reality as one wishes, the court confused behavior with personal identity, and found the law disadvantaged homosexuals as a class.

Yet there is no fixed class of homosexuals – anyone can engage in homosexual behavior, and anyone can consider himself or herself homosexual, with or without behavior to confirm it. The Casey decision’s “mystery clause” can of course not be applied consistently, to do so would make any behavior legal. The result of the Romer decision is not equality of persons, but privileged behavior, behavior against which there can be no adverse judgment. As Justice Scalia pointed out in his dissent, the decision means that there can be adverse moral judgment against many things, but not against homosexual behavior. While the term “special rights” is used to point out what is wrong with the concept of homosexual civil rights, this writer believes that it does have a somewhat suspicious sound to it, and might be used to refer to any protected status– “privileged behavior” might be a better term, as it more precisely conveys the real problem, and highlights that inequality is masquerading as equality.

It is in the second decade of the twenty-first century, the most notable and publicized infringements of religious liberty have happened to private businessmen and professionals.

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