When a Kentucky judge announced that he would recuse himself from any further adoption cases involving “homosexual parties,” he said it was “a matter of conscience.”
Invoking the American tradition of “conscientious objection,” W. Mitchell Nance, a family court judge, also said that his views of homosexuality might constitute a “personal bias or prejudice” that compromised his impartiality, since same-sex marriage and adoption are now considered fundamental rights. So his general recusal from such cases, he suggested, was required as a matter of judicial ethics and law – as well his personal conscience.
Other religious conservatives, too, have begun to appropriate legal concepts often understood to protect religious minorities. With their attempts to carve out conscience exemptions for certain wedding vendors and public officials, allowing them to opt out of participating in same-sex marriage ceremonies, many have begun to couch their arguments within the traditional values of religious pluralism and tolerance.
Unlike the case of Kim Davis, the Kentucky clerk who asserted her religious conscience in 2015 in refusing to allow her government office to grant marriage licenses to any same-sex couples as a matter of principle, Judge Nance has appeared to weigh his moral choices in a more considered way. (On May 2, a federal appeals court reinstated a lawsuit a number of gay couples brought against Ms. Davis.)
“It's preemptive in nature,” Nance said after issuing his April 27 order. “I wanted to preempt there from being any uncertainty if the situation arose.” No one would be delayed or denied access to the services of the court, officials said, since the jurisdiction’s other family judge would now be assigned such cases.
From one perspective, Nance’s justification of his claim to be a conscientious objector included a logistical consideration that the law be upheld in a timely and orderly way, and that no gay or lesbian couples would be inconvenienced. Absent any demonstrable harms, some legal scholars argue, religious conscience claims should be respected. President Trump on May 4 signed an executive order, “Promoting Free Speech and Religious Liberty,” which people on both left and right criticized as vague.
“I believe as an American that, in general, it is a good thing for society to shape laws in ways that allow people to live their lives in ways consistent with their sincerely held religious obligations,” says Mark Goldfeder, a senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta. “It’s in our First Amendment for a reason: It is extraordinarily important as part of the American constitutional experiment that separated us from previous societies, and made us a better nation. At the end of the day, that’s a cornerstone, the bedrock of our society.”
From another perspective, however, the judge’s blanket beliefs about a group of people – rooted, it appears, in religious convictions – immediately violates his oath to uphold both the law and the principle of equal protection. Nance told the Courier-Journal that he’s never met any gay adoptive parents, and he was unaware of any research to back his claim that “under no circumstance” would homosexual parents promote a child’s best interests as well as a heterosexual couple.
And while the United States, as both a nation of laws and a society of diverse peoples, may indeed be exceptional in its unique commitment to religious liberty, it has also had a very troubled and sometimes vicious struggle against religious minorities as its national identity evolved.
“We’re in a moment in which the United States is grappling again with its own identity,” says W. Paul Reeve, a professor of history and director of the department's graduate studies at The University of Utah in Salt Lake City.
'It seemed the right thing to do, to speak up'
Like many Americans, Professor Reeve has been thinking a lot about personal conscience and the meaning of religious liberty this year. As a scholar of 19th-century Mormon history, he says it was his own conscience that compelled him to join a group of fellow scholars who filed a brief for the US Court of Appeals for the 9th Circuit in April.
Their aim was to provide historical context for the court as it again considers President Trump’s bogged-down travel ban, and to describe the US government’s anti-Mormon policies more than a century ago. The travel ban, which temporarily prohibits immigration from six majority-Muslim countries, was in court again Monday, as the 4th Circuit held hearings on its constitutionality.
“Out of a hope for a pluralistic society, it seemed the right thing to do, to speak up,” says Reeve, citing his research into the US State Department’s 19th-century policy to pressure European governments to keep Mormon converts out of the country.
“The parallels seemed striking,” he continues. “And it sort of grew out of a desire to demonstrate empathy for another religious group, to stand in someone else's shoes, draw upon a context that I’ve studied as a scholar, and stand up for pluralism and what it means to be an American.”
But American religious pluralism nevertheless evolved under the broader theological aegis of Protestantism, rooted in the traditions of northern Europe. From the time of the early Puritan theocracies, dissenters like Thomas Hooker, who left Massachusetts and helped establish Connecticut, and Roger Williams, who made a principle of freedom of conscience in Rhode Island and in the Baptist theology he helped shape, religious pluralism defined the new nation.
In time, liturgical Episcopalians could tolerate free-wheeling Methodists, and Presbyterian Calvinists could, in general, live among Baptists preaching the “soul competency” of an individual interpreting Scripture for himself. But these Protestants often had a hard time extending such tolerance to Catholics from southern Europe, or non-orthodox Christian sects like the Church of Jesus Christ of Latter-day Saints.
Today, despite their reasserted power unleashed in the 2016 presidential elections, white Evangelical Protestants have experienced the decline of their cultural dominance.
“White Christians are today struggling to face a new reality: the inevitable surrender of table ownership in exchange for an equal seat,” wrote Robert P. Jones, the chief executive of the Public Religion Research Institute, in The New York Times. “And it’s this new higher-stakes challenge that is fueling the great partisan reorientation we are witnessing today.”
Opposing ideas of what it means to be American
As Dr. Jones noted, this great partisan reorientation includes “mirror-opposite” ideas about what it means to be an American. Almost two-thirds of Republicans, 64 percent, see a culture grounded in Christian religious beliefs as extremely or very important, compared with only 32 percent of Democrats, according to an Associated Press-NORC poll released in February.
Conversely, 66 percent of Democrats said the mixing of cultures and values from around the world was extremely or very important to American identity, compared with only 35 percent of Republicans.
“You really do have this strongly held conviction on the part of many conservative Christians that, because of Obergefell, because of shifting opinions regarding same-sex marriage, that they are now a persecuted minority,” says Russell Arben Fox, a professor of political science at Friends University in Wichita, Kansas, who also signed the scholars’ brief to the Ninth Circuit.
A way out of culture-war mindset?
But Professor Fox, too, sees a way out of the culture-war mindset.
“For myself, I tend to believe there are ways to carve out language that would allow for certain religious groups, maybe even closely held corporations, to avail themselves of religious protections, but without inviting persecution of minorities,” he says.
In Utah, state legislatures responded to the same-sex ruling by meeting with lesbian, gay, bisexual, and transgender advocates and hashing out a similar compromise. Utah became the first Republican state to include LGBT protections in its state civil rights laws. In exchange they passed religious conscience exemptions for clerks and other state workers who would choose not to participate in same-sex marriage ceremonies, while making sure no one ever had to wait or be made to feel unwelcome.
“We should abide by a vision of pluralism that is fully inclusive and not born out of anxiety and exclusion,” says David Kim, a professor in American Studies and the chairman of the religious studies department at Connecticut College in New London. “In the case of religious accommodations or exceptions, those are not made as a matter of course; instead they are determined on a case by case basis. Context matters. Issues matter.”