This is what actual ‘religious liberty’ looks like

This is what actual ‘religious liberty’ looks like February 17, 2014

Thomas Jefferson left strict instructions for how he was to be remembered on his gravestone: “Author of the Declaration of American Independence, of the Statute of Virginia for religious freedom, Father of the University of Virginia.”

That statute for religious freedom embodied the ideals that would later become a foundation of American law in the First Amendment of the Constitution:

Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.*

Jefferson would be pleased to know that the religious freedom he championed is still alive and well in the Commonwealth of Virginia. That same ideal can be seen in the recent decision by U.S. District Judge Arenda Wright Allen, who on Thursday struck down Virginia’s ban on same-sex marriage.

In doing so, Wright Allen also shredded the warped notion of “religious liberty” as a defense of religious privilege now being advanced by pseudo-intellectual Christianist chauvinists. Those chauvinists — from the billionaires of Hobby Lobby, to the U.S. Catholic bishops, to the Manhattan declarers — have been trying to redefine “religious liberty” to mean a “monopoly of worldly honours and emoluments” for their particular strain of religion. It’s not enough, they say, for us to be free to marry as we like — if we are not also free to prohibit others from marrying as they like, then we are not free. It is not enough, they say, for us to be free to reject the use of contraception — if we are not also free to prohibit others from using contraception, then we are not free.

Wright Allen isn’t having any of that nonsense in her courtroom.

Timothy Kincaid notes that Wright Allen’s defense of constitutional religious liberty against this bogus distortion is particularly impressive because the judge’s own religious tradition is vehemently opposed to marriage equality: “Wright Allen rightly found the separation between religious beliefs about how society should be and the constitutional rights of those who disagree with her church’s position. Which makes Wright Allen’s forceful ruling the more powerful.”

Kincaid cites a Washington Post profile of the judge, which highlights her personal Christian faith. Robert Barnes and David A. Fahrenthold write:

When Wright Allen testified about her career before the Senate Judiciary Committee, she brought her pastor from the 300-year-old First Presbyterian Church in Norfolk. Besides her husband, Delroy Anthony Allen, the prospective judge said the Rev. Jim Wood was “probably the closest man in my life.”

“I first have to thank God, because it’s clear to me that if it weren’t for him, I would not be here,” Wright Allen said then.

But in her judicial opinion, she noted the difference between religious faith and secular laws.

No doubt Virginia’s laws limiting marriage to a man and a woman “were rooted in principles embodied by men of Christian faith,” Wright Allen wrote. “However, although marriage laws in Virginia are endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia’s citizens.”

The judge’s home church — First Presbyterian in Norfolk — was already more than 100 years old when Thomas Jefferson’s statute for religious freedom was enacted by the state. As Kincaid notes, though, First Press these days is adamantly opposed to same-sex marriage — so much so that leaders in the congregation wrote and affirmed (three times) their three core beliefs: One is about Jesus, one is about the Bible, and one is about their opposition to marriage equality:

In 2001, 2009 and again in 2011, the Session of First Presbyterian wrote and affirmed the following three tenets:

1.  Jesus Christ is Lord God of all and the only way of salvation.

2.  The Holy Scripture is God’s revealed Word, the only infallible rule for faith and life.

3.  God’s people are called to holiness in all aspects of life. This includes honoring the sanctity of marriage between a man and a woman, the only relationship in which sexual activity is appropriate.

Like Jefferson, Wright Allen says that First Presbyterian ought to be free to exercise its religious perspective — but that it can never be allowed to impose that perspective on the rest of the citizens of Virginia. Wright Allen’s 41-page decision makes that clear:

Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens. They seek simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. …

Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.

This is not an ambivalent, agonized ruling. It’s a definitive, forceful, unambiguous assertion of fundamental rights and fundamental principles of legal equality.

Judge Wright Allen also doesn’t like being lied to. One of the longest sections of this decision deals with what she terms the “for-the-children rationale” which she rightly dismisses as a disingenuous, dishonest ploy:

Counsel for Intervenor-Defendant McQuigg proclaimed at oral argument that “Plaintiffs are asking this court to … strike down the marriage laws that have existed now for 400 years … and make a policy in this state that mothers and fathers [do not] matter.” … This is a profound distortion of what Plaintiffs seek. Plaintiffs honor, and yearn for, the sacred values and dignity that other individuals celebrate when they enter into marital vows in Virginia, and they ask to no longer be deprived of the opportunity to share these fundamental rights.

Boom. “A profound distortion” may be effective if you’re writing a scary direct-mail fundraising letter for your anti-gay religious right group, but you can’t pull that crap in court and expect judges to fall for it. In court, facts matter.

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* That’s the meat of Jefferson’s statute. The “whereas” business that precedes it is also worth re-reading:

Whereas, Almighty God hath created the mind free;

That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do,

That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time;

That to compel a man to furnish contributions of money for the propagation of opinions, which he disbelieves is sinful and tyrannical;

That even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the Ministry those temporary rewards, which, proceeding from an approbation of their personal conduct are an additional incitement to earnest and unremitting labours for the instruction of mankind;

That our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry,

That therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, to which, in common with his fellow citizens, he has a natural right,

That it tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments those who will externally profess and conform to it;

That though indeed, these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;

That to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own;

That it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;

And finally, that Truth is great, and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them

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