Among the highest-profile cases before the Supreme Court, religious freedom issues appear to be overrepresented. Can parents use scholarship money for religious school tuition? Do Catholic nuns have to pay for their employees’ contraceptives? What role does the government have in supervising parochial schools’ hiring and firing of religious teachers?

A recent article provides a compelling answer even if it may not get everything exactly right.

The compelling answer: proxy wars

This important article in National Affairs was written by Ryan Anderson of the Heritage Foundation and the University of Dallas. It provides a convincing explanation for the recent vociferousness of these conflicts over religious liberty: The debate over religious freedom, he argues, has become something of a proxy war.

Proxy war is “the indirect engagement in a conflict by third parties wishing to influence its strategic outcome.” Such wars are common – a major power provides assistance (arms, military training) to one side in a smaller conflict in the hopes of advancing its interests. In Syria, for instance, a number of outside nations have provided aid to the national government or to the rebels.

So, what could the disputes over religious freedom actually be about?

Anderson argues that the current controversy began as a response to the aggressive overreach of the sexual revolution: “The right to abortion becomes a right to government-funded abortion, and then a right to have Hobby Lobby pay for abortion, and now a right to punish pharmacists for not providing abortifacients and doctors and nurses for refusing to participate in or refer for abortions.”

The response to this, he points out, has largely been limited to an appeal to religious freedom – business owners, professionals, etc. should be able to claim exemptions from these types of mandates on the grounds of respect for their faith.

He explains that since the debate is largely taking place in courts, it is no surprise that religious freedom claims are prominent. “If you are defending a client in a legal environment where such mandates exist, the best you can hope for may be a religious-liberty exemption. If you could convince a majority of people about the immorality of the underlying government act of overreach, you probably wouldn’t need to be litigating to begin with.”

A quibble: legislation to protect religious liberty

In an aside, Anderson criticizes churches and others who are promoting “Fairness for All” legislation (FFA), which couples the addition of “sexual orientation” and “gender identity” into federal civil rights law (with religious exemptions) and adds some important stand-alone religious liberty protections (such as protection of employees whose employer might create a hardship on the exercise of their faith).

The article suggests that those who support the approach sacrifice the opportunity to teach truth to gain religious freedom.

However, Anderson’s own argument might help makes sense of the support for FFA.

Religious freedom provides critical space to teach truth – and just as we are in a legal climate where contraception mandates exist, many states and municipalities already limit the ability of people of faith to act on their religious convictions about marriage and sexuality.

To continue to teach – without interference from government – truths about family and morality, crucial space has to be claimed for doing so. A focus on religious liberty rather than underlying moral claims may be necessary, as Anderson accepts in the litigation context. The current legal and political context suggests it may be necessary in the legislative context as well.

Significant implications of the argument

Some of the implications of Anderson’s analysis are extremely important. He notes that

there has been little willingness to challenge the very existence of the mandate — on moral grounds, health-care grounds, or government-authority grounds. Few people have argued that contraception is immoral, and that therefore a government mandate requiring coverage of it is unjust — for everyone, not just religious or conscientious objectors. Few people argued that even if contraception is moral, it isn’t health care (it doesn’t cure a disease or make sick people well), and certainly not an essential aspect of preventive care — and thus inappropriate to include in a preventive-services health-care mandate. And while plenty of people were willing to criticize Obamacare as a whole, few were willing to say that even if you think contraception to be moral and to be health care, there’s no reason whatsoever for the federal government to be mandating its coverage in all employers’ plans.

What is left are appeals to broaden the religious exemptions from mandates over contraception, abortion, the definition of marriage, etc.

This suggests that appeals to religious liberty, as critical as they are, should not be the only claims made. Moral claims are appropriate, as are claims about the proper role of the government, arguments about priorities, etc. Those who are concerned about the creeping intolerance of many government bodies on questions of life and family should not hesitate to make these arguments even if they are not well received in the short run.

Anderson raises an important counterexample to the current retreat into religious-freedom-only argument – the earlier response to the creation of a legal right to abortion. Then, the pro-life side did not just ask for a right not to participate, it made a moral case for the sanctity of life. That does not appear to be happening with more recent controversies over marriage and sexuality, and Anderson argues that this is a mistake.

Religious liberty protects a crucial space in our society. But religious communities must fill that space, and work to draw their neighbors into it. Religious liberty is a prerequisite for a moral life, but it is not the substance of it. A proxy war is not a substitute for the hard work of moral argument and moral formation.

He is right that embracing religious freedom does not require embracing relativism. This will lead to sometimes difficult discussions and, as the article demonstrates, some disagreement even among the like-minded about the best way to move forward. With the kind of civility and careful analysis Anderson’s piece demonstrates, that kind of discussion is likely to be very helpful.