One of the most penetrating essays I've read in a long time is Richard Samuelson's "Who's Afraid of Religious Liberty" in Mosaic magazine, which I found only because Scott Johnson plugged it over at Power Line.
Samuelson starts off discussing anti-Semitism, which is on the rise around the world, including in the United States. In an effort to root out any form of discrimination, Samuelson observes, activists are making it difficult to practice Judaism. But, if you have been following the news lately, you know Jews are far from the only religious people affected. What are the roots of the current trend towards curtailing religious liberty?
It is connected with longer-term shifts in Americans’ fundamental understanding of themselves and of their liberty, and consequently with the laws that embody and reflect that understanding: in particular, the laws enshrining America’s commitment to religious liberty and, relatedly, liberty of association or, as the Constitution has it, assembly.
Coming to the fore over issues of personal identity, most saliently in relation to the gay-rights movement, same-sex marriage, and transgender rights, it has resulted in a legal battle in which the radioactive charge of “discrimination,” borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.
Going back to the U.S.'s early history, Samuelson recalls the 1790 letter George Washington wrote to the Hebrew Congregation of Newport, Rhode Island. Washington said that America was built not on just tolerance of religious differences but on inherent rights, including the right to religious liberty. Religious liberty is as old as the Bill of Rights. Washington knew that it took liberty in other spheres for Americans to exercise this liberty:
The United States could practice this unprecedentedly “enlarged and liberal policy,” as Washington rightly called it, because it featured a very limited national government, one that allowed a large sphere of civil society to flourish outside of government regulation.
. . .
In summoning the prophet Micah’s words about sitting in safety under one’s “own vine and fig tree,” Washington was presuming not only the right to private property but a more general liberty to pursue happiness as one understood happiness. The government would do little to regulate the cultivation of fig trees—or work hours, or employer-employee relations. Regulation would be the exception; liberty the rule. This same open space left Jews free to be Jews just as Christians were free to be Christians; as between faiths, with a few lingering exceptions in some states, government was indifferent.
. . . What this meant in practice was that Wasps were free to keep Jews out of their country clubs, and Jews were free to organize their own clubs. Similarly, Americans were generally free to refuse service to whomever they chose, for whatever reason they chose, and to decide with whom to associate in their daily affairs.
This idea began to change and like many things that turn out dubiously it had its roots in something unquestionably admirable: the drive to end segregation. Jim Crow was a moral evil, and it was also impractical: Jim Crow "subverted the market" and also the attitude of tolerance required to operate in the market. Thus segregation was both repugnant and expensive:
It was to remedy this situation that Congress would eventually assert the right of the federal government to regulate not only local and state governments but civil society itself in an unprecedented manner. The instrument was the Civil Rights Act of 1964. Outlawing discrimination based on race or color—as well as religion, sex, or national origin—the act aimed mainly at undoing racial segregation in schools, workplaces, and “public accommodations”: in essence, what the legal scholar Richard Epstein dubbed “the totalitarian nature of the Old South.”
Samuelson argues that the Voting Rights Act has succeeded and, though every last vestige of prejudice has not been erased, things are vastly different:
But very few are willing to say so—which in itself suggests how thoroughly the new civil-rights mentality has changed the American understanding of the job of government vis-à-vis the liberty of citizens.
This mentality has led to the concept of officially “protected classes” that has grown to include not only race but sexual orientation, pregnancy, familial status, disability and so on. The Justice Department continues in the merry path of creating ever more “protected classes.” We do not wish to be unkind to members of any protected class but it is easy to see where this has led:
This captures our situation today. A large body of American opinion holds that it is the government’s job to prevent any and all discrimination. That belief is pushing government more and more deeply into our daily affairs. Along the way, instead of easing social tensions, it has exacerbated them by establishing a permanent legal relationship between growing classes of legally recognized victims and their designated protectors at every level of society.
As each generation assimilates the mindset more thoroughly, we begin to see situations like those on today’s campuses, awash in the frantic demand for “safe spaces.” There, Jonathan Haidt has written, “the very presence of administrative bodies” in charge of enforcing non-discrimination “gives rise to intense efforts to identify oneself as a fragile and aggrieved victim.” In such a culture, students “must not obtain redress on their own; they must appeal for help to powerful others.” And so the cycle of dependency on one side, suffocating paternalism on the other, perpetuates itself.