Prof. Volokh responds again via e-mail:
Sorry — I thought that by “matter between man and man” you meant “matter that men are to judge other men for doing.” That’s the question: Which sins are strictly for God to punish, and which are for men to punish?
Say that two men get together to build an idol, or to worship one — idolatry, after all, has rarely been a purely personal behavior, but rather a communal one. Likewise, say that a whole community arises to worship several gods, or even one god that’s not the Christian God; again, worship is also largely a communal activity. But the fact that these practices usually involve many men doesn’t make them a “matter between man and man” for your purposes: It is not for you or me to punish these people; God will take care of that. So why is two men having consensual sex any different from two men creating graven images together, or two men worshipping other gods together?
My response:
Let me try to explain it another way.
The first four commandments deal only with the proper respect and worship that is due to God. Choices about which god or gods to worship, and the manner in which such worship is to be conducted, is a matter of religious freedom.
The latter six commandments are not concerned with one’s relationship to God, they are concerned with interaction between people. How people interact with each other, and society’s rules for such interactions, are not generally considered to be a matter of religious freedom.
Two men worshipping idols together: a matter of religious freedom, because it’s a question of which god or gods to worship, and in what manner.
Two men having sex together, or selling drugs, or conspiring to kill a bald eagle, or making a contract that involves the payment of interest, or prematurely removing the tags off of matresses: not a matter of religious freedom, because it has nothing to do with which god or gods to worship. There are other types of freedom involved in those activities, but not religious freedom.
Now, of course, there are cases where the boundary gets fuzzy. For example, the use of peyote in Native American religious rituals can change the context of two men selling drugs so that it becomes a religious freedom issue. But that is only because it involves method of worship. If a Mormon like me buys peyote, there’s no religious freedom issue at all, because peyote is not involved in our worship.
One of the “Articles of Faith” of my church (see here) is “We claim the privilege of worshipping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.” That is what religious freedom means to me, and I suspect many non-Mormons would agree.
It sounds to me like you are trying to expand the concept of religious freedom far beyond what most people consider it to be. Then, with your expanded definition, you say that Christian conservatives are being inconsistent if they support religious freedom for Hindus but not homosexuals. I’m not sure what that’s called, but it’s got to be a logical fallacy of some sort.
(Note: This entry was originally published on my now-defunct political blog, Attilathepundit.com.)