I’m trying to get positive on the Masterpiece Cakeshop ruling — David French is the man for an optimistic reading — but I just can’t do it. Maybe that’s because my priors are too strong, but I don’t think so. First Things has the most accurate read on the meaning of the ruling.
In his essay there, Darel Paul points out that baker Jack Phillips only triumphed because the Colorado Civil Rights Commission had been so flagrantly hostile to his Christian belief. Excerpt:
Only profound naïveté can spin the majority decision as a victory for religious liberty. Consider the concurring opinion of Justices Elena Kagan and Stephen Breyer. Kagan writes that “Colorado can [emphasis added] treat a baker who discriminates on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias.” Kagan in fact lays out precisely the argument she and Breyer would welcome in a future case in order to find for a future government prosecuting a future wedding-cake dissident.
Message to anti-Christian zealots: be more careful next time, and you’ll get what you want.
Writing in this same vein, Hadley Arkes is grateful to Justice Kennedy for, in the majority opinion, rebuking those who described Phillips’s religious beliefs as “despicable.” But:
.. so what? Kennedy did not challenge the law itself as a violation of Phillips’s religious freedom. Why should it matter that commissioners, enforcing the law, allowed their conviction of its rightness to express itself in some gratuitous sneering at a man Justice Kennedy and the Court were still willing to treat as a wrongdoer? What this situation seemed to violate, for Kennedy, was the “State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” For years it was understood that the law need not be at all “neutral” between religion and irreligion, that there were compelling reasons, for the public good, to encourage the religious life. But now the claim is reduced simply to an obligation not to be indecorously nasty while the law refuses to respect religious convictions.
Arkes, who, for those who don’t know of him, is
a law professor, a conservative, and a Catholic, has written a devastating piece. In Arkes’s view, only Justice Ginsburg, one of the two dissenters, spoke to the heart of the issue, and she did so when she observed that the open anti-Christian hostility of two members of the Colorado commission, as regrettable as it may be, does not outweigh the right of the two gay men to be served by the baker. Arkes agrees with her insofar as she has planted her feet firmly on the substance of the law.
Consider, he says, how hopeless Jack Phillips’s case would have been had he refused to bake a wedding cake for an interracial couple, out of sincere religious conviction. A generation ago, the Supreme Court ruled that racial discrimination was so odious that the government had the right to withdraw the tax exemption from Bob Jones University, the fundamentalist Christian college which at the time forbade interracial dating, on its leadership’s reading of Scripture. Arkes writes:
What hasn’t apparently sunk in for the conservative judges is that the activists pushing the cause of gay rights and same-sex marriage see this matter precisely in the same way. They are convinced that the principles of right weigh in decisively here. They would no more respect a claim of religious belief in this domain than they would credit a religious ground for evading the commands of civil rights laws on the matter of race. And it is not hard to imagine that people charged with enforcing the laws on race would find their conviction welling up if they were faced with evangelicals of the Bob Jones variety, earnestly claiming a right not to be bound by those laws. It is not beyond imagining that their feelings might spill out into heated comments, not exactly generous. They might be quite as snippy as the commissioners who excited the anger of Justice Kennedy. And yet we would recognize more readily that it really makes no moral difference to the substance of the matter. The laws that bar us from drawing moral inferences about people solely on the basis of race have their ground in reasons that cannot be coherently dismissed. They are what they are, even if the people who enforce them may be gratuitously nasty.
Think about it:
- The Court held in the Windsor decision — authored by Justice Kennedy — which overturned the Defense of Marriage Act, that preventing gay marriage rights is “irrational animus,” and therefore unconstitutional.
- But it also held in Masterpiece Cakeshop — again, a Kennedy production — that refusing to provide a cake for a gay wedding is not an irrational act if done out of a “sincere” religious conviction.
- Why does the constitutionality of the law depend on the subjective mental state of individuals who wish to break it? How can a judge discern the hearts of men? The Court does not say.
The Court can’t get away with this. Arkes is not impressed by the line taken by Justice Gorsuch (with Justice Alito concurring) that the First Amendment must be taken, in Gorsuch’s words, to “protect even religious belief that we find offensive.” Here’s Arkes:
Nothing taught in the name of religion could be in principle wrongful or even intrinsically evil? Human sacrifice? The worship of Satan? Surely Satanism means the affirmation of radical evil. How could it possibly be compatible with anything that claims the standing of “religion”? Certainly it could not be compatible with the understanding of religion that was bound up with the American Founding. The “Creator” who endowed us with “unalienable rights” was the author of the Laws of Nature, including the moral laws. What we mean by “religion,” wrote Madison, is “the duty which we owe to our Creator and the manner of discharging it.”
Justices Gorsuch and Alito, those urbane, worldly men, surely do not regard Satanism as a plausible sect in anything they regard seriously as a religion. But in the erosion of our laws concerning the meaning of religion and “conscientious objection,” they may regard these expressions of sweeping relativism as the only lines they can speak now that will be understood and credited. And the only lines that can deliver Jack Phillips from an insolent authority. In the political craft of judging, they may simply have calculated that they can do a vast good with little harm: that we can live with the occasional Satanist as the price of rescuing Jack Phillips. But the Justices need to be utterly clear: that they have offered this sweeping moral defense of religious freedom by denuding religion of any moral content.
Read the whole thing. What Arkes is getting at is the impossibility of maintaining neutrality in this matter. You can’t claim, as the Court did in Obergefell, that there is no reasonable case for denying same-sex marriage, but also claim that there is sufficient reason for a Christian baker to deny a gay couple a wedding cake. Or rather, you can do that, but you need to demonstrate in a legal argument why both are permissible. This is what the Court majority declined to do. On Arkes’s persuasive reading, Masterpiece Cakeshop defends religious liberty with a fortress wall made of relativist tissue. It will not hold. Ultimately, the Court is going to have to address the substantive claims — and it’s going to have to do so in a culture that has come to see any form of discrimination against homosexuals as anathema.
Arkes’s essay — in particular his remarks about Gorsuch and Alito — shows us the ultimate impossibility of liberal neutrality. Liberalism is itself an ideology, not merely a procedural construct. It depends on a prior set of beliefs in the Good. In the end, there will be a clash between the Good (“Good”) of gay marriage, and the Good (“Good”) of religious liberty. It is possible, in theory, to fashion a compromise between these rival goods, e.g., granting a constitutional right to gay marriage, but establishing clear exceptions to the law’s effect for religious believers, in the same way some Native American religious believers are exempted from laws forbidding peyote use. This is theoretically possible.
But it is not possible in a culture that does not perceive rival goods in conflict, but rather sees it as Good vs. Evil. At the present time, most Americans support gay marriage — and those numbers will only increase as the oldest Americans die off. Plus, younger Americans are far more secular than older ones — and even those who identify as religious tend to be pro-gay. Younger Americans are, and will be, unable to comprehend Jack Phillips’s principled refusal as anything other than an expression of bigotry, which is capital-E Evil.
Kennedy is stuck. The Colorado case follows a general trend. As Charlotte Allen has documented in our pages, the LGBT anti-discrimination skirmishes are very different from the battles of the 1950s and 1960s, when powerless black Americans fought against powerful interests to gain their rights. Now, those claiming discrimination are almost always well-to-do, well-educated, white-collar white men and women. Those who they claim discriminate against them are lower down the social ladder. In today’s anti-discrimination battles, the great and the good bring their power to bear on the little people who haven’t gotten the progressive memo.
Kennedy will likely retire soon. But his problem will not go away. Two days before the Masterpiece Cakeshop decision was handed down, I attended my thirty-fifth college reunion. Most of my classmates, now in their late fifties, are part of the liberal establishment. I was struck by their anxiety. They’re worried that things are coming apart, and they want to think about how to reknit the social fabric.
I fear they haven’t taken the full measure of the challenge we face. The anti-discrimination imperative came to the fore at a time when racial discrimination was vicious and widespread. In 2018, our crisis is very different. It is a crisis of solidarity, as my classmates (and Kennedy) intuit. It is a crisis exacerbated at every level by anti-discrimination law and rhetoric.
That two gay men in Denver can bring to bear the full power of the state against a baker who does not wish to bake them a wedding cake is the height of absurdity. The gay couple do not belong to a vulnerable class of Americans. IRS data show that male-male married couples filing jointly have dramatically higher family incomes than other married couples, to say nothing of the disintegrating working-class families who don’t enjoy the benefits of marriage. Empowering a segment of the upper class to beat up on those who don’t approve of their sex lives is a recipe for social fragmentation.
Yes, but that is the path the elites have chosen, and they now have most Americans more or less with them. Well, let me qualify that. Do I believe that most Americans who support gay marriage would like to see the state come down hard on Jack Phillips? No, I don’t, though that’s just a hunch. I believe that most people would disapprove of what Phillips did, but also recognize that he is a dying breed. But those tolerant people are not driving this cultural revolution.
What the Supreme Court did is like a French court ruling in 1790 that governmental commissions must show due respect to royalist beliefs when adjudicating conflicts between royalists and republicans. It’s absurd, and won’t work, but even if Jacobin-led commissions did manage to be polite, that would not change the substance of their decisions, which would have been based on the idea that permitting aristocrats to maintain their pre-revolutionary privileges was substantively evil.
Ask yourself: where in the US at this moment in history would a Religious Freedom Restoration Act, a mild piece of legislation that would put some statutory substance into what the Court ruled in Masterpiece Cakeshop, stand a chance of succeeding? When the Indiana state legislature passed in in the spring of 2015, Big Business came down like a ton of bricks on the state, and legislators retreated. Today, the Indiana GOP is fighting over whether or not to drop its platform support for traditional marriage.
As Arkes says in his piece, the Court will not be able to delay forever ruling on the substance of these matters. Religious conservatives had better hope that President Trump will have been able to appoint strong conservatives to any vacancies, and that a GOP Senate will have been able to confirm the nominees. Gay rights and religious liberty will be a massive issue in the next confirmation fight — and given how the GOP itself is following the culture by moving to the left on the issue, there is no guarantee that a GOP-led Senate (assuming the Republicans maintain control after November) will confirm a strong conservative nominee.
And even if it does, do you really think that the Court is going to begin undermining the core of Obergefell in defense of the rights of a shrinking and despised minority? It is pretty to think so, and maybe it will happen. But I’m not betting my future and my children’s future on it.
Do I come off as a sore winner? Maybe so. But I don’t think people in as precarious a situation as orthodox Christians are can afford to console ourselves with false optimism. What religious believers who hold to Christian orthodoxy on homosexuality must do is prepare for life in exile. “Throw your copies of The Benedict Option away!” a friend e-mailed jokingly after the ruling. No how, no way. We won a small victory at the Supreme Court this week, and for that, let us be grateful. But in the long run, the fundamentals are strongly against us.
UPDATE: Aside from his nasty comments about National Review writers, commenter Matt in VA — a gay man in a same-sex marriage — speaks the blunt truth:
David French exemplifies National Review’s mediocrity and inability to even perceive what is going on politically or culturally in our world today, let alone address the problems. (The magazine defenestrates anyone with eyes to see.) At this point, the track record of people like him, Rich Lowry, Jonah Goldberg, Matthew Continetti, etc. should suggest that if they claim something, the opposite will happen.
Religious conservatives had better hope that President Trump will have been able to appoint strong conservatives to any vacancies, and that a GOP Senate will have been able to confirm the nominees. Gay rights and religious liberty will be a massive issue in the next confirmation fight — and given how the GOP itself is following the culture by moving to the left on the issue, there is no guarantee that a GOP-led Senate (assuming the Republicans maintain control after November) will confirm a strong conservative nominee.
The truth is that even if all this happens (pretty unlikely), it probably *still* won’t be enough, because some of the Republican appointees will move left once they’re on the Court. Roberts is already doing it. Liberal justices, of course, never move right. Conservatives pride themselves and pat themselves on the back for being the ones who “stand on principle,” but in reality they are the ones who always fold or give ground or move to “the middle” (i.e., the place where liberal Democrats were 10-15 years ago).
The idea that “discrimination” is always a bad thing (the worst thing in the world, as our culture sees it) will strangle religious conservatism and is of course the death of all real religion. “Discrimination” is often a very good thing (“he has discriminating tastes”) and is absolutely necessary for societal survival. But as long as conservatives foolishly attempt to complete with liberals for being the least discriminatory (a fight they will always lose) the unspooling logic of willful blindness/ignorance that is “nondiscrimination” will continue to rot out their position. This is really what Arkes is getting at when he talks about Satanism. There should not be a phony indifference to *what* religion we’re talking about, when we talk about religious freedom; and we should not pretend that *concrete* (as opposed to abstract) unequal things are equal or should be made to be.
The “competing goods” here are the good of equal treatment under the law and fair play (abstract equality), vs. the good– and it is a good — of applying a discriminatory — in the sense of preferring the better over the inferior — eye to the world, to the physical actual things (and people) of the world. But virtually nobody in Western culture, at least among our ruling class, recognizes these as competing goods anymore, or at least they won’t ever talk about them as competing goods. Nondiscrimination is sacred, and being sacred, it is absolute, it is not to be tested (thou shalt not test the Lord thy God), and there is a ring of willful blindness around it.
It’s quite understandable why it is this way. But that doesn’t change the fact that it can’t remain this way, and it won’t. Any viable nonliberalism is, and will be, grounded in discrimination. “No, all religions or non-religions are not equally deserving of respect, and our laws and societies *won’t* pretend that, say, Satanism is as deserving.” At heart, all localism is discriminatory; the very idea of the nation, or state, is discriminatory, it places a border somewhere; and the future of non-liberalism, if there is to be any, lies with those willing to place that border and stand firm.
UPDATE.2: Sohrab Ahmari writes:
Reducing traditional beliefs to a matter of religious freedom carries other risks. It allows progressives to frame traditional positions, which are rooted in reason and natural law, as a kind of idiosyncrasy or superstition. As Archbishop Charles Chaput noted in his 2016 book, Strangers in a Strange Land, “If they’re purely religious beliefs, then . . . they can’t be rationally defended. And because they’re rationally indefensible, they should be treated as a form of prejudice. Thus two thousand years of moral truth and religious principle become, by sleight of hand, a species of bias.”
Defending traditional morality on the basis of religious liberty alone, in other words, risks cornering religious conservatives in the long-term. The alternative, of course, isn’t to give up on religious freedom. That defensive battle must continue to be fought. But religious conservatives should also go on the offensive and once more formulate a substantive politics of the common good. We live in an age of great moral and ideological ferment and rethinking. Even the left is in flux, as evidenced, for example, by the #MeToo phenomenon, which at heart involves a secular rediscovery of the fundamental differences between men and women.
Religious conservatives have answers to these dilemmas. They can’t afford to retreat, and they shouldn’t.
This is exactly the point on which I break with Prof. Robbie George and his disciples. I see no basis — none — on which “a substantive politics of the common good” can be formulated around the gay rights issue in such a way that religious liberty is protected. Who is listening to those arguments?
The #MeToo phenomenon does not depend on a rediscovery of male-female differences, but on the public recognition of widespread sexual abuse of women by powerful men. I was a film critic in New York in the late 1990s, and everybody knew that Harvey Weinstein was a pig, and figured that living with his swinishness was the cost of doing business with Miramax. What changed this year is that women got tired of putting up with it, and spoke out.
Similarly, the Catholic abuse scandal of 2002 didn’t break big because society had suddenly discovered that it’s wrong for priests to molest children. It broke because a Boston judge allowed church files to enter the public domain, and the Internet spread far and wide the reporting of the Boston Globe.
Maybe I have a limited imagination on these matters, but I’m struggling to come up with a set of circumstances that would convince Americans that allowing religious believers to discriminate against homosexuals in any way serves the common good. Don’t get me wrong: I believe that such an argument can be made! But I don’t think it is at all likely to convince people who aren’t already convinced, any more than an argument that allowing religious believers to discriminate against black people serves the common good is likely to sway the unconvinced.
This faith that some conservatives — usually Catholics conversant with the natural law tradition — have in the power of reason in our time and place is admirable, in the sense that a 19th century cavalry charging in the face of 20th century artillery is admirable. You admire the nobility of the attempt, but you don’t allow your own security to depend on the possibility of the cavalry’s success.