The Tolerance Wars

According to some, the past couple of weeks have revealed a dark and disturbing campaign “of ignorance, fear, and hatred” against conservative Christians in the United States. There are even those who claim — in nationally respected publications — that a “Secular Inquisition” is just around the corner, and unless the religious “wake up,” they face targeted destruction.

Given the apocalyptic nature these claims take, at first glance one might think that some legal “assault” on religion is occurring, where religious expression faces some new form of legal subjugation but… *checks notes*… no.

As I have illustrated before, no serious thinking person can examine current religious liberty doctrine and conclude that it is even remotely hostile to religion. In fact, doctrine explicitly favors religion at the great expense of everyone else’s free conscience liberty.

So, what is driving the hysteria? Unbelievably, what triggered this latest barrage was the social criticism by various mainstream media and social media outlets of Karen Pence (wife of the current Vice President). The focus of the criticism towards Pence was her returning to teach (as the Vice President’s wife), at a school that, in part, bans homosexual teachers and support staff from employment.

To those who insist on calling these critics of Karen Pence intolerant, I submit a simple question: Explain to me why a Christian orthodoxy that criticizes homosexuality as being in the same immoral category as pedophilia is not an example of intolerance in a pluralistic society, but people who criticize this Christian orthodoxy is.

David French at National Review has addressed this sort of question repeatedly by arguing that Christian orthodoxy, even when it disagrees with you, does not amount to animus. Why? Because the disagreement is derived only out of love, as French explains:

While there are certainly individual Christians who are bigots, the theology itself is founded in and based on love — love for the God who created us, and love for the people we want to see enter into relationship with their Savior. The biblical sexual ethic is based on a sincere conviction that it is best for human flourishing and is even symbolic of the sacred relationship between Christ and His Church.

While undeniably relevant to the analysis, it must be said that French’s answer here could just as easily be applied to the critics of Karen Pence that he himself cites. For example, any one of Pence’s critics that French highlights can and do argue that while there are certainly individuals who are bigots, the criticism of Karen Pence is founded in and based on love — love for their gay spouses, children, sisters, brothers, and friends. That their sexual ethic is based on a sincere conviction that excluding homosexuals from institutions and declaring their relationships to be in the same immoral category as pedophilia is not conducive to human flourishing.

Of course, Karen Pence, the school she teaches at, and others, have the right to disagree and even enforce their disagreement in their own private institutions. This would seem to me, and others, to be exactly how a functional pluralistic society should operate. Basically, if a school can criticize/categorize homosexuality as immoral, then it should be fair game to criticize/categorize the school or the spouse of a Vice President who works there as immoral.

This sort of pluralistic society is not what the Pences want, however. They are asking that only one view, their view, should be accepted in the name of tolerance while “criticism of Christian education in America should stop.”

This kind of unbalanced and biased reaction reflects a key element to this debate. Because the same individuals who possess an enhanced sensitivity to criticism of Christians and religion (out of a sense of faith and constitutional liberty they say), offer little to no consideration to legitimate examples of intolerance by the religious.

For example, in the pieces I have cited here by French and Ben Shapiro, outrage is given over and over to instances of liberal politicians grilling government appointees over their theological views. To be clear, such outrage is completely fair in my opinion. Anytime an appointee’s religion is interjected into a discussion regarding their ability to serve in government, this should raise constitutional alarms and be subject to heavy scrutiny.

The point must be said though, that this outrage by French and Shapiro is very one-sided. Because the most egregious statement by a politician regarding what is an acceptable theological view for a government employee does not come from Kamala Harris or Diane Feinstein. It comes from Jefferson Beauregard Sessions, who, until very recently, was the United States Attorney General.

During his confirmation hearing, Sessions stated he was unsure whether irreligious people were capable of knowing “truth” (and thereby calling into question every nonreligious attorney within the DOJ at the time). When he was a United States Senator, Sessions was even more explicit about this belief stating that the irreligious were categorically unfit for government. Indeed, to Sessions, they were a dire threat to constitutional liberty that must be stopped.

Yet, the same greatly concerned defenders of religious liberty who have for weeks now expressed outrage that Diane Feinstein rebuked a judicial nominee almost two years ago said nothing (to my knowledge at least, or at least anywhere near the level for which they have criticized Harris or Feinstein), regarding Sessions’s blatant religious bigotry/intolerance.

The hard and short of it all, is that it is simply difficult to accept that French and Shapiro are legitimately concerned with things like liberty, pluralism, and tolerance, when they fixate on social criticism of Karen Pence, while ignoring the Jeff Sessions of the world.

The framers of the Constitution intended our civil liberties, including freedom of religion, to be nonpartisan. In order to have a robust, pluralistic society, free expression must consist of telling others what they may not wish to hear. Yes, expression can rise to intolerance, but sometimes it’s also just a social disagreement with robust criticism all around. And labeling a society which legally protects your views primarily in you favor as being on the brink of a targeted inquisition aimed at your destruction is a little much to say the least.

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Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.