For nearly twenty years, the US military pursued a policy with lesbians and gays in the armed forces known as Don’t Ask Don’t Tell (DADT). When originally formulated, it provided compromise between those who supported the historical ban on homosexuality in the military and those who wanted an immediate lifting of the ban in the name of equal treatment.
In practice, the DADT policy gave the military a transition period that lasted a generation, allowing the culture of the armed forces a time to adjust to the new political and cultural realities it would soon reflect. For those gays and lesbians in the military who chafed under the policy of silence and who occasionally lost careers for breaking it, it became an unconscionable act of censorship and dishonesty, an anathema in a society based on free expression and tolerance.
The DADT policy ended nearly four years ago, when the military formally lifted its ban on LGBT members. Tolerance, however, remains an elusive prospect, and not just in the military. Now the targets of enforced silence and outright shunning are people of religious faith whose tenets contradict the official positions of the Pentagon, and of state and federal governments. Those who ask or tell about those beliefs quickly find themselves the victims of official intolerance, sometimes directed from the highest levels of government.
This didn’t just start with last week’s ruling in Obergefell v Hodges, in which the Supreme Court declared a constitutional right to same-sex marriage. The decision did inspire opponents of religious doctrines that cast sex of any sort outside of sacramental marriage as a sin to ramp up their efforts to narrow religious liberty to the smallest possible context. For instance, Senator Tammy Baldwin (D-WI) told MSNBC’s Steve Kornacki that the First Amendment right to free exercise of religion only extends as far as the outside walls of houses of worship.
“Certainly the First Amendment says that in institutions of faith that there is absolute power to observe deeply held religious beliefs,” Baldwin explained, “but I don’t think it extends far beyond that.” Baldwin objected to the idea that religious liberty applies to the manner in which Americans choose to live their lives. “They’re talking about expanding this far beyond our churches and synagogues to businesses and individuals across this country,” she warned. “I think there are clear limits that have been set in other contexts and we ought to abide by those in this new context across America.”
That would be a novel and dangerous redefinition of both tolerance and of religious liberty in American history, but is sadly in step with Justice Anthony Kennedy’s decision in Obergefell. “The First Amendment ensures that religious organizations and persons are given proper protection,” Kennedy assures, “as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
That, however, is protected as free speech, not the free exercise of religion. Religious liberty is the ability to put one’s faith into action in the public sphere, both organizationally and individually, both in choosing to take action and in choosing to refrain from participation. The latter has taken many forms in American history, among those the notable exception from compulsory military service by religious orders that demand pacifism, such as Quakers.
Even when our nation’s security is at stake, we have defined the free exercise of religion to include the right to refuse to participate in war, and specifically as individuals. That exercise didn’t just get limited to the ability to advocate for pacifism, but also to practice it in wartime – which hardly qualified as a popular position in most wars, either.
If we exempt participation in war because of free exercise of religion, why should government compel participation in weddings that violate the tenets of their faith? The government’s interest in compelling national service, especially in wartime, far outstrips the need to force participation in a private event.
Baldwin’s construct would punish some of the same people who would have been granted exemptions from the military draft for simply refusing to bake a wedding cake. That happened to Aaron and Melissa Klein, who just got slapped with a $135,000 fine and a limited gag order forbidding them to explain their position to prospective customers. This is nothing less than prior restraint on speech, which had been anathema in the First Amendment context.
This new Don’t Ask Don’t Tell has comes full circle in the military, too. The same service that once barred gays and lesbians from service now punishes chaplains who quote their scripture in dealing with questions of sex outside of traditional marriage. One case didn’t even involve sexual ethics at all; Navy Captain Joe Lawhorn received disciplinary action for explaining how he relies on Scripture to overcome depression, hardly a novel approach for any Christian minister.
"During this training, you were perceived to advocate Christianity and used Christian scripture and solutions," according to the letter of concern placed in Lawhorn’s file by his commander, according to the Army Times. "You provided a two-sided handout that listed Army resources on one side and a biblical approach to handling depression on the other side. This made it impossible for those in attendance to receive the resource information without also receiving the biblical information."
The Army seems to object to its chaplains providing faith-based counseling, which raises the question of just what its chaplains are supposed to provide – and whether others in the armed forces can feel comfortable expressing their own religious beliefs in an environment where even the chaplains are forced to remain silent.
True tolerance would allow Americans of all sexual orientations to serve openly – but also all people of faith to serve with exactly the same amount of openness. It would allow all people to access the market without government restriction, but give people the leeway to decide for themselves in which events they wish to participate and when without government penalty, either.
Instead of tolerance and liberty, though, the government appears ready to conduct a hunt of heretics in the pursuit of ensuring total compliance with cultural doctrine, while promising that churches can hide within their own four walls to escape the ruling class’ wrath.
How long will it take for that remnant of liberty to be extinguished?
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