AMAC Exclusive by David Deavel
Vanita Gupta was approved by the Senate as Associate Attorney General last month by a vote of 51-49 last month, one of a number of concerning appointees that the Biden Administration has made in its short but troubling tenure. The problem with Gupta is that as the number two law enforcement official in the country, she has a history of supporting attacks on religious liberty. While secularists celebrate such attacks as a vindication of true freedom, the reality is that they are really a threat to any true freedom.
Concerning the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, Gupta compared Jack Phillips’s refusal to make a personalized wedding cake for two men who wanted a wedding to Jim Crow-era laws keeping black people out of theaters and restaurants and their assaults on “personal dignity.” “At times, the free exercise of religion yields to other foundational values, including freedom from harm and from discrimination,” she explained. “On that principle, there ought to be no question that Colorado’s law allowing Charlie Craig and David Mullins to buy a wedding cake from any bakery they choose—notwithstanding that they are gay—should trump claims by a bakery that providing the cake would violate the owner’s religious beliefs.”
Gupta’s dishonesty or, best-case, ignorance of the case was astounding. The two men were not prohibited from buying a cake at all, certainly not because “they were gay.” Instead, Phillips argued that in demanding that he customize a wedding cake for them, Craig and Mullins were trying to force him to say something he did not believe was true: that two men can really be married to each other. That his understanding of the nature of being human and of the nature of marriage was rooted in his Christian view of the world is in one sense not very important. Would there have been the kind of public and legal outcry if a Jewish baker sold a Neo-Nazi a cake but refused to custom bake him a cake with an anti-Semitic message? To ask the questions is to answer them. Whether the hypothetical bakers in such cases were religious or not, we would never demand they use their artistic skills to communicate something they thought was morally wrong.
In another way, however, it is true that Jack Phillips’s religious beliefs are absolutely central to the question. For it is the only religion that can guarantee the rights of people to follow what they believe to be right and wrong. In the absence of a strong understanding of religious freedom, people are vulnerable to the power of government overstepping its bounds.
Associate AG Gupta’s rather free rejection of Jack Phillips’s position was matched by her 2020 arguments against the Little Sisters of the Poor’s demand that they not be forced to provide contraceptive coverage to employees. The conscience rights of the Little Sisters mean, for Gupta, that they are required to pay for medications and procedures they think immoral. Her 2016 arguments, that states such as North Carolina may not have laws making sure that bathrooms and locker rooms may be same-sex only, show the dangers of having such a figure in high levels of government. There she asserted that “the facts” can be summarized thus: “Transgender men are men—they live, work and study as men. Transgender women are women—they live, work and study as women.”
These are not facts, but instead a reinterpretation of reality. They certainly do not “follow the science,” but they do attack both faith and reason.
For Gupta and many other progressive figures perched from low to high positions in government, the position is clear: you may keep your conscience but you may not act on it and, increasingly, may not even speak about what it says. President Obama’s tendency to refer to the First Amendment’s freedom of religion as “freedom of worship” was a reflection of the continuing attempt to whittle down religious freedom so that there may be no conscience. Play your songs and talk in your church or synagogue, he seemed to say, but don’t bring your belief into the public square.
That such language or such legal maneuvers are really a threat to freedom is confusing to many secular friends who think of religion as the main threat to the conscience. The problem is that while it is undeniable that religious groups have violated the consciences of people in the past, the real threat to the conscience comes from irreligion. Aleksandr Solzhenitsyn explained in his 1983 Templeton Prize Address, “Men Have Forgotten God,” the nature of the relationship of totalitarianism to religion: “Militant atheism is not merely incidental or marginal to Communist policy; it is not a side effect, but the central pivot. To achieve its diabolical ends, Communism needs to control a population devoid of religious and national feeling, and this entails the destruction of faith and nationhood. Communists proclaim both of these objectives openly, and just as openly go about carrying them out.”
The state that wants to rule everything will do what it can to make sure that you are isolated and alone, without a sense of being American and especially not an American who is under God.
Secular people who assume that they will be able to keep their consciences because they are not religious do not understand why that cannot work. In a powerful 2018 article in Commentary magazine titled “Among the Disbelievers,” Gary Saul Morson amplified Solzhenitsyn’s point, noting that Communist regimes not only get rid of explicitly religious language but forbid any kind of moral language. He cited a 1920 speech of Lenin, who decried any kind of ethical or moral philosophy as simply religion in disguise: “That is why we say that to us there is no such thing as a morality that stands outside human society. That is a fraud. To us, morality is subordinated to the interests of the proletariat’s class struggle.”
When your government has overstepped its bounds, saying, “Don’t worry—I’m moral but not religious” will not guarantee you any freedom at all to do what your conscience demands. The Soviet regime made sure to eliminate the word “conscience” in public because they knew that conscience is a concept that will eventually point people to religion. They understood what the nineteenth-century theologian John Henry Newman meant when he said, “Conscience has rights because it has duties.” Once you start following what you think are duties, you will start asking where and eventually from whom these duties come.
That is what happened in the Soviet Union. As Morson observes, because of what they saw, many of the atheists took the path of conscience to its source and became believers in God. What did they see?
Memoirist after memoirist, including the atheist [Lydia] Ginzburg, testify that in the camps the only people who consistently chose conscience, even at the cost of their lives, were the believers. It did not seem to matter whether they were Jews, Orthodox Christians, Russian sectarians, or Baptists. Well-educated atheists succumbed readily under pressure, but believers, and believers alone, did not.
A great many secular figures who have pointed out such things as “Men do not give birth” and other obvious points have not been able to withstand the pressure to capitulate to those pushing what is manifestly not “facts” but a statement of power to reinterpret and control reality. They would do well to defend figures such as Jack Phillips and the Little Sisters. The defense of religious freedom is not just the defense of religious people but of all people to do their duty and enjoy the freedom that is only available by following one’s conscience.
David P. Deavel is editor of Logos: A Journal of Catholic Thought and Culture, co-director of the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy, and visiting professor at the University of St. Thomas (Minnesota).