As a fragrant breeze, Elaine Quijano’s question wafted across what had been a pungent VP debate stage.

You have both been open about the role that faith has played in your lives. Can you discuss in detail a time when you struggled to balance your personal faith and a public policy position?

Tim Kaine answered first, and in doing so revealed much about himself, the American left, and our nation’s ongoing struggle to relate faith, morality, and public policy. Kaine, a Roman Catholic, discussed the conflict between his, and his church’s, beliefs about the death penalty and Virginia law, which allows for capital punishment. As Governor, Kaine told voters he would enforce the law even though it conflicted with his beliefs. How did he justify his decision?

But I don’t believe in this nation, a First Amendment nation, where we don’t raise any religion over the other, and we allow people to worship as they please, that the doctrines of any one religion should be mandated for everyone.

And later…

But I think it is really, really important that those of us who have deep faith lives don’t feel that we could just substitute our own views for everybody else in society, regardless of their views.

Mike Pence, Kaine’s opponent for the evening and the cycle, took the question in a different direction. He argued his own faith has not produced conflicts, but inspired him to seek legislation that gives feet to his own commitments.

But for me, I would tell you that for me the sanctity of life proceeds out of the belief that — that ancient principle that — where God says before you were formed in the womb, I knew you, and so for my first time in public life, I sought to stand with great compassion for the sanctity of life.

He went on to describe his efforts, as Governor, to provide non-abortion alternatives to women, and to make Indiana the national leader in adoptions. After Pence’s critique of Clinton and Kaine’s abortion politics, Kaine responded:

But we really feel like you should live fully and with enthusiasm the commands of your faith. But it is not the role of the public servant to mandate that for everybody else.

So let’s talk about abortion and choice. Let’s talk about them. We support Roe v. Wade. We support the constitutional right of American women to consult their own conscience, their own supportive partner, their own minister, but then make their own decision about pregnancy. That’s something we trust American women to do that.

There is so much to unpack here, but let’s stick to a few major points.

First, notice Kaine’s language as it relates to conscience. The female conscience, informed by a partner or a minister, demands complete respect. It creates its own boundaries where the law may not tread, thereby preserving this sacred choice at the heart of progressive thinking. The religiously informed conscience that opposes abortion does not earn the same deference. The religious conscience, one presumes, only garners respect when it preserves choice and not when it informs the law. Interestingly, Kaine and other progressives have no problem binding the consciences of bakers, florists, or photographers who would rather not participate in same-sex marriage ceremonies, where there is no third party concern.

Regardless of what you think of conscience, and the extent it ought to be respected by the law, it is a slippery, subjective standard, a handy tool in an argument, perhaps, but not a good legal foundation. None of us believe a pricked conscience justifies murder or theft, so we all understand conscience has limits as a buffer against society and the law. Also, none of us believe, I hope, conscience has no role as a weapon against the state. Most Americans support, I assume, some kind of conscientious objection to combat. To invoke conscience by itself, though, does not settle many issues.

Second, Kaine, and his fellow progressives, favor individual freedom as it relates to religious beliefs, but are opposed to the translation of those beliefs into public policy, at least in the realm of abortion. Pence, on the other hand, begins with a religious belief and talks about how that might translate into policy. The disconnect between the two is obvious. Kaine advocates a compartmentalization of faith, where one is free to live out beliefs enthusiastically, but such beliefs should not ground law or even policy preferences. After all, when the law is clear, the religious commitments, and not the law, must yield. Even in Kaine’s own example of the death penalty, his belief had to bend to the law.*

This highlights how progressives understand the Free Exercise Clause, especially in relation to competing rights. Beliefs, not actions, are sacrosanct, even though the actual constitutional text uses the word “exercise.” When there is a sharp conflict between religious actions and competing values–constitutional or otherwise–the progressive default seems to settle in favor of those competing values unless the religious action at issue comes from outside the Judeo-Christian tradition. For progressives, same-sex marriage, abortion access, and the provision of contraceptives have been declared more important than religious belief and behavior.

Third, Kaine seems to believe using religion as a foundation for policy violates the First Amendment.  Or, if he does not believe it, he implies it in such a way to scare voters away from the arguments. He says, more than once, that our form of government prevents those in office from enforcing or mandating policies that stem from faith. To do so, one must presume from such a limited context, violates the Establishment Clause. Kaine thinks elected officials with religious beliefs should, instead of legislating based on those beliefs, respect the individual choices of others.

Almost everyone agrees that devout lawmakers and executives cannot use the governmental apparatus to coerce religious beliefs and activities, especially at the federal level. People strongly disagree over whether or not government can show preference to religion, broadly defined, as opposed to non-religion, but that is a slightly different matter. Kaine seems to think using the power of government to enforce laws inspired by religious devotion is itself intolerable.

The Constitution does not, nor was it designed to, prevent people from relying on their own values, whether those values stem from religion, philosophy, reason, or any “ism” one wishes to embrace, when they craft laws. Turning morality into legislation is not only constitutional, it is unavoidable. Every significant piece of law makes moral commitments. The choice NOT to pass a law is also evidence of a moral commitment to restrain government as it relates to a private action. Budgets, perhaps viewed as the most arid of documents, are chock of full of moral decisions. They reflect priorities that are morally grounded. To choose to fund the EPA instead of a mission to Mars reflects a moral choice in favor of environmental protection. A desire to protect the environment could grow from Christianity, Buddhism, a nebulous pantheism, or a rational calculation that natural resources might be dwindling, which could be bad for future generations.

The Constitution does not require a distinction between these motivations. Why? Because EPA funding has nothing, zero, nada, and zilch to do with the elevation of religious “doctrines” into law. Instead, it has to do with a moral preference that may or may not be based on religion.

To cut to the heart of Kaine’s concerns, abortion law is no different. Regardless of the abortion position one embraces, or the motivation that underlies it, abortion law is not an Establishment or Free Exercise matter. There is no effort to institutionalize religion through pro-life or pro-choice preferences. There is no effort to restrict religious action, to show favoritism toward a particular faith, or anything else that may hint at religious establishment.**

The reality, I think, is the argument Kaine put forward inoculates himself, and other Catholics, from religious criticism, even though he uses constitutional germs for the inoculation. After all, if you buy into his reasoning, NOT EVEN CATHOLICS can criticize Kaine’s abortion politics, because alternative points of view are simply beyond the constitutional pale and raise the specter of church-state fusion. As a public servant, he conveniently ties his own hands.

The only way Kaine can make such an argument is to conflate doctrine and policy in a way that demands constitutional oversight. Pence, for example, (partially) articulated theological commitments to our common status as created beings, and the sovereignty of God in the construction of individual human souls. From this beginning point, he argued for policies based on those commitments–a provision of abortion alternatives and a preference for adoption. Kaine seems to believe the existence of the theological belief, all by itself, undermines the constitutionality or acceptability of the policies, which, though related, are indeed distinct from each other.

I am not pretending this is original or particularly insightful, and I am fully aware of my own need to continually think these things through. I also understand the Constitution looks very differently upon different bodies of law. Given that, Kaine’s handling of Quijano’s question highlights the tension that is pervasive within progressivism, especially the kind that incorporates religious terminology. I wonder what Kaine would say to King’s arguments in his Letter from a Birmingham Jail. More than anything, his opposition to segregation was religiously grounded. Would he say Martin Luther King, Jr. had no right to press his “doctrines” onto the rest of society? I tend to think not. Just as with economic matters, progressives are more than willing to validate religious foundations so long as it leads to policy outcomes they prefer.***

I am curious what you all think. Have I overblown this? Or, have I just misunderstood these arguments?

*I have no idea if, or how, Tim Kaine tried to change the law on the death penalty while he was enforcing it, but it seems that would be a minimal expectation when such a conflict occurs. If beliefs are deeply held, and a public duty conflicts with those, one should resign or at least seek changes. To do otherwise suggests something other than a significant conflict.

**Even if you think the Court should examine religious intent when it considers Establishment Clause cases, like the infamous Lemon test, applying such tests nearly always allowed for the co-existence of multiple intents. The Court rarely used intent to overturn laws unless there was no other potential intent present, or when the religious intent was so obviously paramount that others were mere fig leaves. Such is not the case with these laws. Also, when the Court did interpret the Establishment Clause with such thinking, it did so when obviously religious activity or conduct or preference was at work–as in religiously motivated moments of silence or the posting of the Ten Commandments in legal or official settings. Such is not the cause with abortion laws.

***Just out of fairness, I should say that Kaine’s argument does not square with Barack Obama. In many places, Obama affirms the critical importance of religion. He argues against a compartmentalization and he calls on his own party to recognize the critical role that religion plays in the lives of so many.