RFRA and the "Right to Happiness"

We are witnessing a fundamental transformation of our country. It was promised, and is being delivered. The right to have sex with whomever, whenever, is becoming the civil right that must trump all others. The debate over the Religious Freedom Restoration Acts (RFRA) passed in Indiana and Arkansas illustrates this point.

The first RFRA was a 1993 federal law signed by president Bill Clinton. It unanimously passed the House of Representatives, where it was sponsored by then-congressman Chuck Schumer, and sailed through the Senate on a 97-3 vote. How many laws are that obvious, that well-supported by left and right? Before Indiana, nineteen states had substantially identical laws on their books. Illinois’ version was enacted with the “yea” vote of then-state-Senator Barack Obama.

The law reestablished a balancing test for courts to apply in religious liberty cases (a standard had been used by the Supreme Court for decades). RFRA allows a the government by its rules, laws, ordinances, etc., to "substantially burden" a person's free exercise of religion only if the law furthers a "compelling governmental interest" and uses the "least restrictive means of furthering that compelling governmental interest."

So much of the debate seems to focus on one person or group imposing their views on another. Let me illustrate:

Two people are each minding their own business. They have nothing to do with each other. Ann approaches Bob and says, "Hey, I demand that you do something for me that violates your sincerely held religious beliefs, beliefs that one or more major religions held for thousands of years." 

Bob replies, "Wow, I'd like to serve you, but could you ask someone else? Other people will help you with that. But for me, I think it might displease God if I did it. You are free to do what you want, but please don't ask me to join you." 

Ann responds: "You bigot! I'm suing you and taking everything you have!"

Since when should Ann have the right under law to force Bob to behave in conformity with her moral views and participate in her conduct? RFRA would protect Bob from having to do what Ann demands, unless the government has some compelling reason to force everyone like Bob to always do what Ann is asking. This is not a “gay” issue, but the “gay rights” militants take Ann’s side, that the government should enforce Ann’s demand on Bob.

But let’s play this out. At what point would the militants (and all politicians who are now complaining about Bill Clinton’s RFRA and the state versions enacted since) disagree with Ann? What if Ann asks Bob to:

• sing in Ann’s night club, since Bob is a singer?
• sing at Ann’s Mosque, since Bob is a singer?
• cater at Ann’s lewd bachelorette party, since Bob is a caterer?
• officiate Ann’s gay wedding, since Bob is an Imam at the local Mosque?
• take nude photos of Ann, since Bob is a photographer?
• print a porn magazine, since Bob runs a print shop?
• do the cutting for Ann’s animal sacrifice, since Bob is a butcher?
• abort Ann’s child, since Bob is an OBGYN?

Should Ann be able to legally force Bob in each of these cases? If Bob has a sincerely held conviction against the activities, he would not have to participate under RFRA unless the government shows some compelling reason that all Bobs in all circumstances must yield to all similarly-situated Anns in the world. Perhaps the government could demonstrate that, and would back Ann in her demand. Maybe in the case of baking a cake to celebrate a gay wedding, the government has a compelling interest in forcing all Bobs to do so, while in the case of animal sacrifice it does not. Perhaps in the case of singing at the Mosque it does, and in the abortion case it does not.

But these are the questions under RFRA, not the answers.

I encourage you to read the following essay from C.S. Lewis. He saw the liberals’ inconsistency in England more than 50 years ago. They said sexual freedom should be given equal footing with other freedoms, but the real proposal is to elevate it to a new and higher right that trumps all others. His insights are, as always, profound and quite applicable to the situation in which we find ourselves.

Curt

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Have We No Right to Happiness?

C.S. Lewis

 “After all,” said Clare. “they had a right to happiness.”

We were discussing something that once happened in our own neighborhood. Mr. A. had deserted Mrs. A. and got his divorce in order to marry Mrs. B., who had likewise got her divorce in order to marry Mr. A. And there was certainly no doubt that Mr. A. and Mrs. B. were very much in love with one another. If they continued to be in love, and if nothing went wrong with their health or their income, they might reasonable expect to be very happy.

It was equally clear that they were not happy with their old partners. Mrs. B. had adored her husband at the outset. But then he got smashed up in the war. It was thought he had lost his virility, and it was known that he had lost his job. Life with him was no longer what Mrs. B. had bargained for. Poor Mrs. A., too. She had lost her looks—and all her liveliness. It might be true, as some said, that she consumed herself by bearing his children and nursing him through the long illness that overshadowed their earlier married life.

You mustn’t, by the way, imagine that A. was the sort of man who nonchalantly threw a wife away like the peel of an orange he’d sucked dry. Her suicide was a terrible shock to him. We all knew this, for he told us so himself. “But what could I do?” he said. “A man has a right to happiness. I had to take my one chance when it came.”

I went away thinking about the concept of a “right to happiness.”

At first this sounds to me as odd as a right to good luck. For I believe—whatever one school of moralists may say—that we depend for a very great deal of our happiness or misery on circumstances outside all human control. A right to happiness doesn’t, for me, make much more sense than a right to be six feet tall, or have a millionaire for your father, or to get good weather whenever you want to have a picnic.

I can understand a right as a freedom guaranteed me by the laws of the society I live in. Thus, I have a right to travel along the public roads because society gives me that freedom; that’s what we mean by calling the roads “public.” I can also understand a right as a claim guaranteed me by the laws, and correlative to an obligation on someone else’s part. If I have a right to receive $100 from you, this is another way of saying that you have a duty to pay me $100. If the laws allow Mr. A. to desert his wife and seduce his neighbor’s wife, then, by definition, Mr. A. has a legal right to do so, and we need bring in no talk about happiness.

But of course that was not what Clare meant. She meant that he had not only a legal but a moral right to act as he did. In other words, Clare is—or would be if she thought it out—a classical moralist after the style of Thomas Aquinas, Grotius, Hooker and Locke. She believes that behind the laws of the state there is a Natural Law.

I agree with her. I hold this conception to be basic to all civilization. Without it, the actual laws of the state become an absolute, as in Hegel. They cannot be criticized because there is no norm against which they should be judged.

The ancestry of Clare’s maxim. “They have a right to happiness,” is august. In words that are cherished by all civilized men, but especially by Americans, it has been laid down that one of the rights of man is a right to “the pursuit of happiness.” And now we get to the real point.

What did the writers of that august declaration mean?

It is quite certain what they did not mean. They did not mean that man was entitled to pursue happiness by any and every means—including, say, murder, rape, robbery, treason and fraud. No society could be built on such a basis.

They meant “to pursue happiness by all lawful means”; that is, by all means which the Law of Nature eternally sanctions and which the laws of the nation shall sanction.

Admittedly this seems at first to reduce their maxim to the tautology that men (in pursuit of happiness) have a right to do whatever they have a right to do. But tautologies, seen against their proper historical context, are not always barren tautologies. The declaration is primarily a denial of the political principles which long governed Europe; a challenge flung down to the Austrian and Russian empires, to England before the Reform Bills, to Bourbon France. It demands that whatever means of pursuing happiness are lawful for any should be lawful for all that “man,” not men of some particular cast, class, status or religion, should be free to use them. In a century when this is being unsaid by nation after nation and party after party, let us not call it a barren tautology.

But the question as to what means are “lawful”—what methods of pursuing happiness are either morally permissible by the Law of Nature or should be declared legally permissible by the legislature of a particular nation—remains exactly where it did. And on that question I disagree with Clare. I don’t think it is obvious that people have the unlimited “right to happiness” which she suggests.

For one thing, I believe that Clare, when she says “happiness,” means simply and solely “sexual happiness.” Partly because women like Clare never use the word “happiness” in any other sense. But also because I never heard Clare talk about the “right” to any other kind. She was rather leftist in her politics, and would have been scandalized if anyone had defended the actions of a ruthless man-eating tycoon on the ground that his happiness consisted in making money and he was pursuing his happiness. She was also a rabid teetotaler; I never heard her excuse an alcoholic because he was happy when he was drunk.

A good many of Clare’s friends, and especially her female friends, often felt—I’ve heard them say so—that their own happiness would be perceptibly increased by boxing her ears. I very much doubt if this would have brought her theory of a right to happiness into play.

Clare, in fact, is doing what the whole western world seems to me to have been doing for the last 40-odd years. When I was a youngster, all the progressive people were saying, “Why all this prudery? Let us treat sex just as we treat all our other impulses.” I was simple-minded enough to believe they meant what they said. I have since discovered that they meant exactly the opposite. They meant that sex was to be treated as no other impulse in our nature has ever been treated by civilized people. All the others, we admit, have to be bridled. Absolute obedience to your instinct for self-preservation is what we call cowardice; to your acquisitive impulse, avarice. Even sleep must be resisted if you’re a sentry. But every unkindness and breach of faith seems to be condoned provided that the object aimed at is “four bare legs in a bed.”

It is like having a morality in which stealing fruit is considered wrong—unless you steal nectarines.

And if you protest against this view you are usually met with chatter about the legitimacy and beauty and sanctity of “sex” and accused of harboring some Puritan prejudice against it as something disreputable or shameful. I deny the charge. Foam-born Venus … golden Aphrodite … Our Lady of Cyprus… I never breathed a word against you. If I object to boys who steal my nectarines, must I be supposed to disapprove of nectarines in general? Or even of boys in general? It might, you know, be stealing that I disapproved of.

The real situation is skillfully concealed by saying that the question of Mr. A’s “right” to desert his wife is one of “sexual morality.” Robbing an orchard is not an offense against some special morality called “fruit morality.” It is an offense against honesty. Mr. A’s action is an offense against good faith (to solemn promises), against gratitude (toward one to whom he was deeply indebted) and against common humanity.

Our sexual impulses are thus being put in a position of preposterous privilege. The sexual motive is taken to condone all sorts of behavior which, if it had any other end in view, would be condemned as merciless, treacherous and unjust.

Now though I see no good reason for giving sex this privilege, I think I see a strong cause. It is this.

It is part of the nature of a strong erotic passion—as distinct from a transient fit of appetite—that makes more towering promises than any other emotion. No doubt all our desires makes promises, but not so impressively. To be in love involves the almost irresistible conviction that one will go on being in love until one dies, and that possession of the beloved will confer, not merely frequent ecstasies, but settled, fruitful, deep-rooted, lifelong happiness. Hence all seems to be at stake. If we miss this chance we shall have lived in vain. At the very thought of such a doom we sink into fathomless depths of self-pity.

Unfortunately these promises are found often to be quite untrue. Every experienced adult knows this to be so as regards all erotic passions (except the one he himself is feeling at the moment). We discount the world-without-end pretensions of our friends’ amours easily enough. We know that such things sometimes last—and sometimes don’t. And when they do last, this is not because they promised at the outset to do so. When two people achieve lasting happiness, this is not solely because they are great lovers but because they are also—I must put it crudely—good people; controlled, loyal, fair-minded, mutually adaptable people.

If we establish a “right to (sexual) happiness” which supersedes all the ordinary rules of behavior, we do so not because of what our passion shows itself to be in experience but because of what it professes to be while we are in the grip of it. Hence, while the bad behavior is real and works miseries and degradations, the happiness which was the object of the behavior turns out again and again to be illusory. Everyone (except Mr. A. and Mrs. B.) knows that Mr. A. in a year or so may have the same reason for deserting his new wife as for deserting his old. He will feel again that all is at stake. He will see himself again as the great lover, and his pity for himself will exclude all pity for the woman.

Two further points remain.

One is this. A society in which conjugal infidelity is tolerated must always be in the long run a society adverse to women. Women, whatever a few male songs and satires may say to the contrary, are more naturally monogamous than men; it is a biological necessity. Where promiscuity prevails, they will therefore always be more often the victims than the culprits. Also, domestic happiness is more necessary to them than to us. And the quality by which they most easily hold a man, their beauty, decreases every year after they have come to maturity, but this does not happen to those qualities of personality —women don’t really care two cents about our looks—by which we hold women. Thus in the ruthless war of promiscuity women are at a double disadvantage. They play for higher stakes and are also more likely to lose. I have no sympathy with moralists who frown at the increasing crudity of female provocativeness. These signs of desperate competition fill me with pity.

Secondly, though the “right to happiness” is chiefly claimed for the sexual impulse, it seems to be impossible that the matter should stay there. The fatal principle, once allowed in that department, must sooner or later seep through our whole lives. We thus advance toward a state of society in which not only each man but every impulse in each man claims carte blanche. And then, though our technological skill may help us survive a little longer, our civilization will have died at heart, and will—one dare not even add “unfortunately”—be swept away.

This was reportedly the last published article by C.S. Lewis before his death. He must be rolling over in his grave.