Tuesday, December 6, 2011

Garden tools and First Amendment rights

What is semantics? The best way I can put it is: Semantics is calling a spade a spade because it’s not a shovel.

Let me unpack it for you: Semantics is the art and study of words in their variation of meaning, particularly their precise application for the best expression of ideas. For example, if you’re digging a hole in the dirt and you ask for a “shovel”, in ordinary circumstances the person helping you would hand you a spade — laterally-curved blade with an ogive edge — because that’s the appropriate tool for the task. But a true shovel — flat blade with a straight edge — isn’t for digging; it’s for scooping. Especially when the blade is about 2’ wide, shallow and sometimes longitudinally-curved … that is, a snow shovel.

If you want to be understood, precision is your friend, ambiguity your enemy. If, however, you intend to mislead, misdirect or flat-out lie, ambiguity is your shovel.

Now we can look at three words that have been used to describe a certain First Amendment freedom: religion, worship and conscience. Which does the actual text protect? (Cue Jeopardy! music.)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Okay, so the word is “religion”, not “worship” or “conscience”. Don’t they all mean essentially the same thing? Isn’t the protection of religion also the protection of worship and conscience? Of course, the answer is “no”; but besides explaining why the answer is “no”, I want to explain why the difference matters.

For most of our history we’ve tacitly understood that religion isn’t a set of rituals practiced in a single building once a week for an hour or five; rather, it’s a cosmology that informs our lives and shapes our souls from waking to falling asleep, from early in our childhood to our last days. Failure to conform (in whole or part) to the moral teachings of a particular communion doesn’t mean that the person is not religious. He may be a hypocrite; he may be a dissenter; he may have rejected the idea of a formal church. Yet it still doesn’t follow that he’s without religious beliefs or that he doesn’t to some extent practice a religion. In this sense, atheism, agnosticism and “spiritual but not religious” can be thought of as religious beliefs. Indeed, we must treat them as “religions” to give their exponents equal rights with bishops and rabbis.

I’ve written before of liberal legal theorists’ desire to create a ratchet out of the establishment clause by arguing that certain laws constitute an “establishment of religion” because they “impose a religious morality”. However, Terry Mattingly of GetReligion.org points us to a change in language signaled in a little-noted 2009 speech by Secretary of State Hillary Clinton, where in a passage nominally concerning human rights she claimed people must be “free to worship”. As Mattingly relates it, only theologian and Bl. John Paul II biographer George Weigel caught the change:

Religious freedom includes the right to preach and evangelize, to make religiously informed moral arguments in the public square and to conduct the affairs of one’s religious community without undue interference from the state. If religious freedom only involves the freedom to worship, then … there is “religious freedom” in Saudi Arabia, where Bibles and evangelism are forbidden but expatriate Filipino laborers can attend Mass in the U.S. embassy compound in Riyadh.

In other words, worship is a much more restricted concept than exercise. Worship doesn’t involve, or need to involve, inflicting your religious beliefs on others to their discomfort … or, at least, so the theory goes. Ideally, you can tell people to keep their religious blather inside their churches and houses where they can’t offend, and everyone will be all that much happier while still protecting “freedom of worship”. Combine that with the establishment-clause wrecking ball, and you can create an élite, largely-secularist minority tyranny while maintaining the appearance of a representative democracy.

Is this likely? I wish I could say “no” and mean it.

What about “freedom of conscience”? That would seem at first glance to give us the counter we need. However, it fails not by being too exclusive but by being too vague. When religious people ask for “conscience” protections, the scope is assumed to be narrow; we ask only not to be compelled to do what’s evil. However, it can just as easily be argued that a “right of conscience” is a right not to be restrained by law from doing something the community regards as evil, or to be compelled to do something you feel wrong by someone not providing a desired service in the name of their conscience: ambiguity undoes us.

Ironically, the resolution of conflicting moral imperatives into enforceable common law is exactly what a representative democracy is meant to achieve in a religiously heterogeneous polity; and freedom of religion — in both its non-establishment and free-exercise aspects — is meant to allow the maximum participation in the democratic process.

Even more ironically, a Supreme Court that for almost seven decades has been shifting the balance of the Madisonian dilemma towards near-monomaniacal concern with individual rights has “[left] it almost entirely to the political process … to determine the scope of religious liberty,” as law professors Patrick McKinley Brennan and Michael P. Moreland observed in First Things, “and legislatures are increasingly stingy when it comes to freedom of religion.”

While religious beliefs still inform most peoples’ lives, many have already bought the “religion = worship = practices” equation, and cheerfully believe that religiousness can be confined to a once-a-week, somewhere-other-than-in-public box.

After all, what’s the difference between a spade and a shovel? They both move dirt, don’t they?