I spent a long time on the phone last night with a law professor at one of the country’s elite law schools. This professor is a practicing Christian, deeply closeted in the workplace; he is convinced that if his colleagues in academia knew of his faith, they would make it very hard for him. We made contact initially by e-mail — he is a reader of this blog — and last night, by phone. He agreed to speak with me about the Indiana situation on condition that I not identify him by name or by institution. I do know his identity, and when he tells me that he is “well-informed about the academy and the Supreme Court,” I assure you that from where he sits, and teaches, and from his CV, he is telling the truth.
I will call him Prof. Kingsfield, after the law professor in The Paper Chase.
What prompted his reaching out to me? “I’m very worried,” he said, of events of the last week. “The constituency for religious liberty just isn’t there anymore.”
Like me, what unnerved Prof. Kingsfield is not so much the details of the Indiana law, but the way the overculture treated the law. “When a perfectly decent, pro-gay marriage religious liberty scholar like Doug Laycock, who is one of the best in the country — when what he says is distorted, you know how crazy it is.”
“Alasdair Macintyre is right,” he said. “It’s like a nuclear bomb went off, but in slow motion.” What he meant by this is that our culture has lost the ability to reason together, because too many of us want and believe radically incompatible things.
But only one side has the power. When I asked Kingsfield what most people outside elite legal and academic circles don’t understand about the way elites think, he said “there’s this radical incomprehension of religion.”
“They think religion is all about being happy-clappy and nice, or should be, so they don’t see any legitimate grounds for the clash,” he said. “They make so many errors, but they don’t want to listen.”
To elites in his circles, Kingsfield continued, “at best religion is something consenting adult should do behind closed doors. They don’t really understand that there’s a link between Sister Helen Prejean’s faith and the work she does on the death penalty. There’s a lot of looking down on flyover country, one middle America.
“The sad thing,” he said, “is that the old ways of aspiring to truth, seeing all knowledge as part of learning about the nature of reality, they don’t hold. It’s all about power. They’ve got cultural power, and think they should use it for good, but their idea of good is not anchored in anything. They’ve got a lot of power in courts and in politics and in education. Their job is to challenge people to think critically, but thinking critically means thinking like them. They really do think that they know so much more than anybody did before, and there is no point in listening to anybody else, because they have all the answers, and believe that they are good.”
On the conservative side, said Kingsfield, Republican politicians are abysmal at making a public case for why religious liberty is fundamental to American life.
“The fact that Mike Pence can’t articulate it, and Asa Hutchinson doesn’t care and can’t articulate it, is shocking,” Kingsfield said. “Huckabee gets it and Santorum gets it, but they’re marginal figures. Why can’t Republicans articulate this? We don’t have anybody who gets it and who can unite us. Barring that, the craven business community will drag the Republican Party along wherever the culture is leading, and lawyers, academics, and media will cheer because they can’t imagine that they might be wrong about any of it.”
Kingsfield said that the core of the controversy, both legally and culturally, is the Supreme Court’s majority opinion in Planned Parenthood vs. Casey (1992), specifically the (in)famous line, authored by Justice Kennedy, that at the core of liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As many have pointed out — and as Macintyre well understood — this “sweet mystery of life” principle (as Justice Scalia scornfully characterized it) kicks the supporting struts out from under the rule of law, and makes it impossible to resolve rival moral visions except by imposition of power.
“Autonomous self-definition is at the root of all this,” Prof. Kingsfield said. We are now at the point, he said, at which it is legitimate to ask if sexual autonomy is more important than the First Amendment.
The implications of the past week for small-o orthodox Christians — that is, those who hold to traditional Christian teaching on homosexuality and the nature of marriage — are broad. There is the legal dimension, and there is a cultural dimension, which Kingsfield sees (rightly, I think) as far more important.
First, the legal. Kingsfield said he reviewed Ross Douthat’s questions,  and thinks they are a good framework for trying to figure out the road ahead. I didn’t pin Kingsfield down on his specific answers to each of Douthat’s questions; we spent an hour and a half on the phone as it was, and I didn’t want to rob too much of his time. But I did take some notes about his general views.
“I read that list and I think it’s very useful,” Kingsfield said. “I think the bulwarks in terms of a parent’s right to raise a child, and to educate a child, are more durable than others.”
A college professor who is already tenured is probably safe. Those who aren’t tenured, are in danger. Those who are believed to be religious, or at least religious in ways the legal overculture believes constitutes bigotry, will likely never be hired. For example, the professor said, he was privy to the debate within a faculty hiring meeting in which the candidacy of a liberal Christian was discussed. Though the candidate appeared in every sense to be quite liberal in her views, the fact that she was an open Christian prompted discussion as to whether or not the university would be hiring a “fundamentalist.”
“I think in terms of hiring people [within the academy], that’s quite acceptable in people’s minds,” said Kingsfield. (And, I would add, not just within the academy.)
Kingsfield says that religious schools will have a substantial degree of protection in the law, at least for a while, to the extent that the school can be described as a part of a particular church, with clear doctrines that it expects its members to live by and uphold.
“There’s going to be some question as to whether this applies to parachurch charities, schools, shelters, things like that,” he says. “If you’re a church you’re pretty much protected in who you hire, pay, and so forth. If you are a school and are careful only to hire people of your denomination, you’re probably okay, though there are questions about the person who says ‘I’m a good Catholic, though I’m gay.’
“It could be that if bishop certifies that you are a Catholic in good standing, you’re okay,” he continued. “Catholics have a clear line of what constitutes the visible church, and what it means to be Catholic. So do the Orthodox. But if you are an Evangelical church that has a more general statement of faith, and depends on a shared assumption that its non-married members will live a chaste life, I’m not so sure that’s going to hold.”
For hierarchical, doctrinally well-defined churches, much depends legally on what the bishops do. “To the extent that some of the Catholic bishops want to punt, like the New Jersey bishop [Bootkoski of Metuchen] did with that schoolteacher [Patricia Jannuzzi], I’m not sure at all what happens to them.”
(Bootkoski arranged for Jannuzzi to be fired from her position teaching at a Catholic school in his diocese after a Facebook post in which she stated Catholic teaching on homosexuality and the family, but did so intemperately. “The teacher’s comments were disturbing and do not reflect the Church’s teachings of acceptance,” the bishop said in a public statement. From what Kingsfield said, this might well have laid down a marker making it hard for the Diocese to defend itself in court in future challenges over hiring.)
“If you’re a Catholic in San Francisco, in a crazy social environment, you’re in good shape, because you have [Archbishop] Salvatore Cordileone, who is going to hold the line. In Philadelphia, you have Archbishop Chaput. But if you’re in Indiana or New Jersey, you’re going to have trouble. There’s a way in which the vigilance of the bishop in governing the local church will matter in court. If the bishops won’t stand up for [orthodox Christian teaching], who will?”
“Even Reformation churches that have specific doctrines that they police, they’ll probably be okay,” Kingsfield continued. “But again, if you define yourselves by a very general statement, even if your ethos is culturally conservative, it’s going to be harder. The low church people may wind up in a position where they have to start policing their churches much more closely in terms of doctrine.”
This could well push religious schools into making hiring decisions that they’re not comfortable with. Say, for example, that a Catholic school had no trouble hiring a chemistry teacher who openly advocated for same-sex marriage, because that teacher was in the school to teach chemistry. His views on gay marriage are irrelevant, in practice. The school may have a different standard for hiring its religion teachers, or its social studies teachers, requiring them to be more doctrinally in line with the Church. But that is a distinction that may not hold up in court under challenge, Kingsfield said.
The result could be that religious schools have to start policing orthodoxy in terms of all their hires — a situation imposing standards far more strict than many schools may wish to live by, but which may be necessary to protect the school’s legal interests.
Kingsfield said homeschooling, and homeschooling-ish things (e.g., co-ops), are going to become increasingly important to orthodox Christians, especially as they see established religious schools folding on this issue.
Businesses, however, are going to have a very hard time resisting what’s coming. Not that they would try. “The big companies have already gone over,” said Kingsfield.
“Most anti-discrimination laws have a certain cut off – they don’t apply if you have 15 employees or less,” he said. “You could have an independent, loosely affiliated network of artisans, working together. If you can refer people to others within the network, that could work. You won’t be able to scale up, but that’s not such a bad thing.”
Kingsfield said religious colleges and universities are going to have to think hard about their identities.
“Colleges that don’t receive federal funding – Hillsdale and Grove City are two I can think of – are going to be in better position, because federal regulations force a lot of crazy stuff on you,” he said. “I think it would be really wise for small religious institutions to think hard if they can cut the cord of federal funding and can find wealthy donors to step in.”
Kingsfield said we are going to have to watch closely the way the law breaks regarding gender identity and transgenderism. If the courts accept the theory that gender is a social construct — and there is a long line of legal theory and jurisprudence that says that it is — then the field of antidiscrimination law is bound to be expanded to cover, for example, people with penises who consider themselves women. The law, in other words, will compel citizens to live as if this were true — and religious liberty will, in general, be no fallback. This may well happen.
What about the big issue that is on the minds of many Christians who pay attention to this fight: the tax-exempt status of churches and religious organizations? Will they be Bob Jones’d over gay rights?
Kingsfield said that this is too deeply embedded in American thought and law to be at serious risk right now, but gay rights proponents will probably push to tie the tax exemption on charities with how closely integrated they are within churches. The closer schools and charities are tied to churches, especially in their hiring, the greater protection they will enjoy.
The accreditation issue is going to be a much stickier wicket. Accreditation is tied to things like the acceptance of financial aid, and the ability to get into graduate schools.
“There was a professor at Penn last year who wrote an article in the Chronicle of Higher Education calling for the end of accrediting religious colleges and universities,” Kingsfield said. “It was a Richard Dawkins kind of thing, just crazy. The fact that someone taking a position this hostile felt very comfortable putting this in the Chronicle tells me that there’s a non-trivial number of professors willing to believe this.”
Gordon College has faced pressure from a regional accrediting authority over its adherence to traditional Christian sexual morals re: gay rights.
“Accreditation is critical to being admitted to law schools and medical schools,” Kingsfield said. “College accreditation will matter for some purposes of sports, federal aid, and for the ability to be admitted by top graduate schools. Ghettoization for Christians could be the result.”
“In California right now, judges can’t belong to the Boy Scouts now. Who knows if in the future, lawyers won’t be able to belong to churches that are considered hate groups?” he said. “It’s certainly true that a lot of law firms will not now hire people who worked on cases defending those on the traditional marriage side. It’s going to close some professional doors. I certainly wouldn’t write about this stuff in my work, not if I wanted to have a chance at tenure. There’s a question among Christian law professors right now: do you write about these issues and risk tenure? This really does distort your scholarship. Christianity could make a distinct contribution to legal discussions, but it’s simply too risky to say what you really think.”
The emerging climate on campus of microaggressions, trigger warnings, and the construal of discourse as a form of violence is driving Christian professors further into the closet, the professor said.
“If I said something that was construed as attacking a gay student, I could have my life made miserable with a year or two of litigation — and if I didn’t have tenure, there could be a chance that my career would be ruined,” he said. “Even if you have tenure, a few people who make allegations of someone being hateful can make a tenured professor’s life miserable.”
“What happened to Brendan Eich” — the tech giant who was driven out of Mozilla for having made a small donation years earlier to the Prop 8 campaign — “is going to start happening to a lot of people, and Christians had better be ready for it. The question I keep thinking about is, why would we want to do that to people? But that’s where we are now.”
I pointed out that the mob hysteria that descended on Memories Pizza, the mom & pop pizza shop in small-town Indiana that had to close its doors (temporarily, one hopes) after its owners answered a reporter’s question truthfully, is highly instructive to the rest of us.
“You’re right,” he said. “Memories Pizza teaches us all a lesson. What is the line between prudently closing our mouths and closeting ourselves, and compromising our faith? Christians have to start thinking about that seriously.”
“We have to fall back to defensive lines and figure out where those lines are. It’s not going to be persecution like the older Romans, or even communist Russia,” he added. “But what’s coming is going cause a lot of people to fall away from the faith, and we are going to have to be careful about how we define and clarify what Christianity is.”
“If I were a priest or pastor, I don’t know what I would advise people about what to say and what not to say in public about their faith,” Kingsfield said.
There is a bitter irony in the fact that gays coming out of the closet coincides with traditional religious people going back into the closet.
“Gays have legitimately said that it’s a big deal to have laws and a culture in which they have been forced to lie about who they are, which is what you do when you put them in the position of not being able to be open about their sexuality,” Kingsfield said.
“‘Don’t ask, don’t tell’ forced them to segment off a part of their lives in a way that was wrong. What they don’t realize today is that the very same criticism they had about ‘don’t ask, don’t tell’ can be applied to what is happening now to Christians: you can do what you like in private, but don’t bring who you are into the public square, or you can be punished for it.”
On the political side, Kingsfield said it’s important to “surrender political hope” — that is, that things can be solved through political power. Republicans can be counted on to block the worst of what the Democrats attempt – which is a pretty weak thing to rely on, but it’s not nothing. “But a lot of things can be done by administrative order,” he said. “I’m really worried about that.”
And on the cultural front? Cultural pressure is going to radically reduce orthodox Christian numbers in the years go come. The meaning of what it means to be a faithful Christian is going to come under intense fire, Kingsfield said, not only from outside the churches, but from within. There will be serious stigma attached to standing up for orthodox teaching on homosexuality.
“And if the bishops are like these Indiana bishops, where does that leave us?” he said. “We have a problem in the current generation, but what I really worry about is what it means to transmit the faith to the next generation.”
“A lot of us will be able to ‘pass’ if we keep our mouths shut, but it’s going to be hard to tell who believes what,” Kingsfield said. “In [my area], there’s a kind of secret handshake that traditional Christians use to identify ourselves to each other when we meet. Forming those subterranean, catacomb church networks is not easy, but it’s terribly vital right now.”
“Your blog is important for us who feel alone where we are, because it let’s us know that there are others who feel this way,” Kingsfield said. “My wife says you should stop blogging and write your Benedict Option book right now. There is such a need for it. My hope for this book is that it will help Christians like us meet and build more of the networks that are going to carry us through.”
Kingsfield said he and his wife send their children to a classical Christian school in their area. “I can’t tell you how happy that makes me,” he said. “Studying the past is so important. If you have an understanding of where we came from [as a culture], you can really see how insane we have gone.”
Through the classical Christian school community, he said, he and his wife have met believers from other traditions who are very sympathetic to the threat to all orthodox Christians, whether they are Catholic, Protestant, or Orthodox.
“We have to get to know them better. We have to network with them. Our kids have to grow up with those kids, even if it means some driving, some traveling, arranging joint vacations,” Kingsfield said.
The professor brought up the book The Nurture Assumption , a book that explains how culture is transmitted to kids.
“Basically, it says that culture comes through your peer group,” he said. “The most important thing is to make sure your kids are part of a peer group where their peers believe the same things. Forming a peer group is hard when it’s difficult to network and find other parents who believe what you do.”
While each family must be a “little church” — some Catholics call it a “domestic monastery,”  which fits well with the idea of the Benedict Option — Kingsfield says the importance of community in forming moral consciences should lead Christians to think of their parishes and congregations as the basic unit of Christian life.
Hearing Kingsfield say this, I thought about how there is a de facto schism within churches now. It will no longer be sufficient to be part of a congregation where people are at odds on fundamental Christian beliefs, especially when there is so much pressure from the outside world. I thought of Neuhaus’s Law: where orthodoxy is optional, it will sooner or later be proscribed. It is vital to find a strong church where people know what they believe and why, and are willing to help others in the church teach those truths and live them out joyfully.
This is a time, said Kingsfield, for Christians to read about church history, including the lives of saints, and to acquaint themselves with the fact that the Christian church has actual roots, and teachings. It is not about what you “feel” is Christian. That’s the way of Moralistic Therapeutic Deism, which is the death of Christianity.
“The most important question for Christians parents to ask themselves is, do we have a vibrant church?,” he said. “Sadly, only a small number of places have them. My family is in one. Our kids are growing up with good examples that they can look up to, and good older kids who hang on because they can stand together.”
Some people taking the Benedict Option will head for the hills, Kingsfield said, but that will be a trivial number, and that won’t be an answer for most of us.
“We need to study more the experience of Orthodox Jews and Amish,” he said. “None of us are going to be living within an eruv or practicing shunning. What we should focus on is endogamy.”
Endogamy means marriage only within a certain clan or in-group.
“Intermarriage is death,” Kingsfield said. “Not something like Catholic-Orthodox, but Christian-Jew, or high church-low church. I just don’t think Christians are focused on that, but the Orthodox Jews get it. They know how much this matters in creating a culture in which transmitting the faith happens. For us Christians, this is going to mean matchmaking and youth camps and other things like that. It probably means embracing a higher fertility rate, and celebrating bigger families.”
The professor said we also have to band together behind religious liberty legal organizations like The Becket Fund and the Alliance Defending Freedom. And we have to make connections not only across denominational lines, but religious ones too — that is, with Jews, Muslims, and Mormons.
“It can’t be said loudly enough that yes, we have big theological disagreements, but the more we can stand together, the more likely we are to succeed,” he said. “The more our struggle is framed as a specifically Christian thing, the more likely we are to lose in the courts.”
Why? Because of liberal culture, and its demonization of Christians as the Other. President Obama will speak out for the Yazidis, but not for the Iraqi Christians, he said. When he talks about the martyred Egyptians in Libya, he doesn’t acknowledge that they were killed for being Christians. It’s simply a fact that there is tremendous animus against Christians within the liberal culture, and that liberal elites will tolerate things from Orthodox Jews and Muslims that they will not from Christians. Small-o orthodox Christians had better grasp that the religious liberties of Jews and Muslims are our own religious liberties, and make friendships and tactical alliances across these boundaries.
More broadly, he said all Christians must take a lesson from many Evangelicals and raise their children to know from the beginning that we are different from everybody else in this culture. We now live in a clearly post-Christian society, and Christian conservatives had better get that straight.
“There are a lot of conservatives who are very chest-thumping pro-America, but there’s an argument that the seeds of this are built into American individualism,” Kingsfield said. “We Christians have to understand where our allegiances really must to lie. The public schools were meant to make good citizens of us and now are being used to make good Moralistic Therapeutic Deists of us.”
Christians should put their families on a “media fast,” he says. “Throw out the TV. Limit Netflix. You cannot let in contemporary stuff. It’s garbage. It’s a sewage pipe into your home. So many parents think they’re holding the line, but they let their kids have unfettered access to TV, the Internet, and smartphones. You can’t do that.
“And if you can’t trust that the families of the kids that your kids play with are on the same team with all this, then find another peer group among families that are,” he said. “It really is that important.”
And for secondary education? Kingsfield teaches at one of the top universities in the country, a gateway to elite advancement, but says he’s not sure he would want his kids attending there. It depends on God’s calling. He remains there because for now, he sees that he has a mission to mentor undergraduates who need a professor like him to help them deal with the things coming at them. The fact that he has his kids in a good school and a good parish makes this possible. But he recognizes that by the time his children become college age, the landscape may have shifted such that the elite universities are too hostile.
“I could still imagine having a kid who was really strong in his faith, and believing that God was calling him to going to a prestige college. I’m not ready to say ‘never’ for that, but I do think there are a lot of kids that we need to steer away from such hostile places, and into smaller, reliably Christian schools where they can be built up in their faith, and not have to deal with such hostility before they’re strong enough to combat it.”
It’s hard to say what kind of landscape Christians will be looking at twenty, thirty years from now. Kingsfield says he has gay colleagues in the university, people who are in their sixties and seventies now, who came of age in a time where a strong sense of individual liberty protected them. They still retain a devotion to liberty, seeing how much it matters to despised minorities.
“That generation is superseded by Social Justice Warriors in their thirties who don’t believe that they should respect anybody who doesn’t respect them,” Kingsfield said. “Those people are going to be in power before long, and we may not be protected.”
Bottom line: the Benedict Option is our the only path forward for us. Indiana shows that. “Write that book,” he said.
OK, I will.
UPDATE: From a reader (who signed his name and gave his institutional affiliation, but I’m keeping this anonymous). He teaches at a major public law school:
Loved the article. I come from a similar background as Kingsfield, although a different legal focus … . At my school, I am the only evangelical Christian within the tenure system, or at least the only open one. While I don’t think my institution is quite as bad as what Kingsfield describes, Kingsfield’s observations are consistent with mine and/or with observations by Christian colleagues at other schools. The attitude toward truth that was displayed by the left on the Indiana RFRA is dominant in legal academia. We live in a culture that is now largely post-rational, post-modern, and post-law. Power and emotions drive issues in a way that would have been unthinkable 20 years ago.