03/07/2012 10:39 am ET Updated May 07, 2012

Belief Alone Is No Basis for Public Policy

The Blunt amendment, the bill that would have allowed employers and insurers to deny health care coverage for services that are contrary to their "religious beliefs or moral convictions," has created a predictable rift between the left and the right, with each side trading election year sound bites. But the bill, which narrowly failed in the Senate last week, raises a harder -- and more interesting -- question than whether special health care exemptions are a "war on women" or a "war on religion": What constitutes a "belief" or a "moral conviction" and when should the assertion of such a belief be considered the proper basis for the giving or taking away of rights?

Conservatives have spent generations accusing liberals of moral relativism and "anything goes" indulgence in their feelings or whims. But is a belief -- no matter how ennobled by the protective mantle of institutional religion, historical longevity or broad popularity -- any less arbitrary of a foundation for the giving or taking away of people's rights? In order to be a legitimate basis for public policy, does the assertion of a belief need to be paired with an empirical argument about the impact of the proposed policy that the belief is being cited to justify?

With the Blunt amendment, as with religious exemptions that let people avoid LGBT non-discrimination laws, we're not talking about just leaving someone alone to revel or wallow in their beliefs; we're talking, sound bites notwithstanding, about citing a personal belief -- absent any other argument for the utility, wisdom, soundness, fairness, benefit or value of a proposed policy -- to justify a law that's binding against others. After all, an exemption from a law that requires or prevents action from everybody else is not simply a matter of getting the government off our backs, any more than if I were to demand an exemption from the speed limit because I believed such constraints were morally wrong; rather, it's an invitation for individuals to ignore laws that apply to everyone else.

Rick Santorum's opposition to birth control is squarely rooted in a religious belief that people should only have sex for the purpose of conjugal procreation. He has called birth control "a grievous moral wrong," saying he was "reflecting the views of the church that I believe in." Last year he called contraception dangerous, rooting his position in the beliefs of "the Christian faith" that any sexual act that's not in the service of procreation is "counter to how things are supposed to be." As a presidential candidate he is rejecting assertions that he wants to ban access to birth control, instead of just condemning it, but in truth, he would overturn the 1965 Supreme Court decision protecting access to contraception, which could do just that.

The same appeals to belief are routinely used to oppose the freedom to marry. When New Jersey Governor Chris Christie vetoed a bill to legalize same-sex marriage, he cited only his beliefs as the reason for overriding the will of the legislature. He even boasted that he was "standing up for what I believe in" as he dodged any real accountability by failing to offer an argument -- beyond his personal beliefs -- for why gay and lesbian couples should not be allowed to wed. President Obama, along with a huge (if shrinking) minority of Americans, has relied on the same non-argument, simply stating that "I believe" or "my religious beliefs say" that marriage should be between and man and a woman.

The freedom of belief is, to be sure, a cherished American principle, deeply rooted in our history and law. Our founders made the very first amendment to the Constitution a protection of that belief from government force. But the historical context, and thus the real meaning, of that protection is often misunderstood. For the founders, protecting the freedom of religious belief was, first and foremost, an empirical assertion, on the level of the "self-evident" assertion of human equality. Their view was that forcing someone to believe something she does not, in her heart, believe, was a mutual charade. If you don't believe in God, no law can make you, any more than a law could force you to love your wife or like peas. Any profession to the contrary should be taken as insincere, a fake conversion, nothing more than an appeasement, and certainly not a serious conviction.

While the idea that laws cannot force beliefs may seem self-evident today, it was a revelation during the Enlightenment, a period when centuries of authoritarian thought control were being indicted by new champions of natural law. But the revelation was descriptive, not prescriptive. The point was not that people should be allowed to do (or not do) anything they said their beliefs mandated, but that no one could profess to tell another person what he believed in his heart. Commanding someone what to believe was an empirical impossibility.

From that central revelation flowed a body of law that attempted to protect religious practices that did not conflict with other people's autonomy. The first amendment protects religious liberty, but it's not absolute, any more than any other constitutional protection. The Supreme Court has now said repeatedly that moral disapproval of homosexuality -- absent any compelling governmental interest such as protecting people from harm -- cannot be used to deprive people of liberty, including the freedom of consensual sex. Its decisions were not a matter of controlling belief, but of protecting universal freedoms against government incursions that were being justified solely by a belief in the immorality of homosexuality.

Indeed, what you believe is not the same as how you behave, particularly outside of a church or other religious institution (the Obama health care policy already exempts churches from full participation). If you choose to run a business, organization or state (or country), you are signing up to play by a common set of rules. These rules should not be set by the mere profession of some people's beliefs, particularly when those beliefs are not subject to standards of empirical evidence about the costs and benefits of the policies they're cited to justify.

Contrary to Santorum's complaints, this does not mean that religious belief is barred from the public square. If you want to oppose affordable access to contraception, the freedom of LGBT people to marry, or the death penalty for that matter, because that's how you interpret your religious faith, you're free to make that case. But the rest of us should stop bowing to professions of personal belief, as though it deserves some untouchable, conversation-stopping stature in the court of public opinion.

The religious right has had great success in casting issues of sexuality and health as "moral issues," a conscious conflation of morality with religion. It's time to hold those who perpetuate this confusion accountable for the imprecision of their ideas, and for what amounts to a demand that virtually anything goes, so long as someone "believes" it's okay. If you're going to throw the "m" word around -- morality -- you should have to make the case for how the action in question is harming society. The word of God is no longer enough.