Anderson ’04, McClain Debate Limits on Religious Liberty

“The law ought not to prohibit every vice and to enforce every virtue.”

On Wednesday, April 12, The Princeton Tory sponsored a debate between Dr. Ryan T. Anderson, Senior Research Fellow at the Heritage Foundation, and Prof. Linda McCl­ain, Visiting Faculty Fellow at Princeton University’s Center for Human Values. The debate, held in 101 McCormick Hall, was moderated by Stephen Macedo, Laurance S. Rockefeller Professor of Politics at Princeton University’s Department of Politics. The subject of the discussion was Religious Liberty or a License to Discriminate?

In his opening remarks, Anderson laid out the criteria for an issue to merit a legislative response. Among these criteria are the danger of substantial harm, physical or psychological; the existence of a compelling state interest in regulating a behavior; and, when the state has such an interest, that the response be the least restrictive means possible. Anderson noted that the law ought not “to prohibit every vice and to enforce every virtue.”

McClain commented on the history of civil rights legislation. She noted historical appeals to the Bible and pseudoscientific eugenic theories to defend the prohibition of interracial marriage as “unnatural” and “immoral”, and that sexual orientation has since been legally recognized as a class protected from discrimination in much the same way as other victims of discriminatory practices. McClain then addressed the limits of free religious exercise. Quoting the late Justice Scalia from Employment Division v. Smith (1990), she noted that the First Amendment does not prohibit all restrictions on free exercise. In particular, restrictions may be made so long as it is a “‘neutral law of general applicability’ and is not targeting religion,” does not shift burdens to others, and the beliefs of individuals acting in the market are not “superimposed on statutory schemes which are binding on others in that activity.”

In her rebuttal to Anderson, McClain noted the apparent tension between Anderson’s claim that, as McClain rendered it, “the good is not monolithic, and there are lots of different conceptions of the good”, and his simultaneous position that there is only one “true” understanding of marriage, which “has to do with, kind of a natural law and biblical vision” of marriage, whose adherents deserve “robust” legal protections, and which is the only one the state ought to recognize. She also noted that, since the 1970s, “homosexuality has been viewed by scientific authorities as a normal expression of sexuality,” and that some “religious traditions have evolved on this issue, just as they have evolved about interracial marriage and racism,” and that many theologians believe Christianity ought to embrace and bless same-sex unions.

In his rebuttal, Anderson noted the apparent tension between McClain’s agreement with him that there is more than one “good life” and her view, in his words, that “yet she thinks that her definition is better than my definition … and that the civil law should reflect her definition and not mine.” He noted that beliefs, being immaterial, cannot be regulated, and emphasized the need for a compelling state interest in order to regulate behaviors stemming from beliefs. He also elaborated on his view of the difference between discrimination on the basis of sexual orientation or gender identity, and refusal to provide a service on grounds of objections superficially related to either of these. He contrasted a hospital refusing to treat a transgender patient’s broken ankle on the basis of the person’s gender identity with a hospital refusing to remove a healthy uterus as part of a sex-reassignment procedure on the grounds of the hospital’s belief that removing healthy organs—from anyone, regardless of gender identity—”isn’t good healthcare, and … would amount to mutilation.”

In the Q&A, Anderson remarked that “we still haven’t heard a case for why the state should be enacting these laws that burden the free exercise of religion. It’s not about, How far should liberty go? … The proper way of framing this question is, How much should the government take away from their freedom?”

He elaborated that the presumption ought to be liberty, with an anti-discrimination scheme enacted for specific, carefully chosen purposes.

Photo by Princeton junior Thomas Clark

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