We have just come through a year with the Supreme Court in which the defenders of religious freedom racked up a string of famous victories. Famous, at least, to those who rejoiced in the outcomes and hoped that they foretold something lasting. But there are grounds to be less than cheered when we consider the principles articulated in these decisions. The most notable case here, eliciting the deepest relief and yet triggering a deep bewilderment, was the case of Colorado baker Jack Phillips. Phillips’s offense was that he declined to make a cake to celebrate a same-sex wedding. The laws in Colorado at the time had no recognition of that form of marriage. Nevertheless, Phillips was charged with a violation of the Colorado Anti-Discrimination Act, which barred, among other things, the withholding of services in places of “public accommodation” on the basis of “sexual orientation” and “marital status.”
To the relief of many, Phillips won his case at the Supreme Court. But then we found people surprised and shocked that the same activists, armed with authority in Colorado, had come after Jack Phillips yet again. This time his offense lay in refusing to bake a cake to celebrate transgenderism. (More recently, the authorities have made a public disavowal of their plans for pursuing Mr. Phillips. But that change seemed to spring from avoiding a needless embarrassment, rather than confessing a serious moral error.) The possibility for pursuing Phillips remained because the governing majority of the Court never challenged the ground of the law in that case. They never challenged the claim that the laws in Colorado were on unassailable ground when they condemned discrimination on the basis of “sexual orientation,” when they affirmed the rightness of same-sex marriage, and then condemned as wrongdoers, deserving punishment, those who would deny the rightness of same-sex marriage. If those laws are treated as justified and rightful, Justice Kennedy suffered not a trace of doubt that they would override any religious claim based merely on “belief.” His concern—and the decisive point for the judgment—was that the commissioners in Colorado had been gratuitous in their expressions of contempt for the convictions held by Jack Phillips.
But Justice Kennedy and his colleagues left the law intact and unchallenged. It offered a virtual invitation, then, to the activists in Colorado to try it again, this time testing Phillips’s refusal to bake a cake to celebrate transgenderism. And there is no ground on which to turn back that prosecution unless there is a willingness to test the very substance of the legislation—to weigh, in a serious way, whether the law is justified in condemning people who have good reason to regard “transgenderism” as a deep fallacy, running against the objective truth of nature that people must be born male or female. But that is not what conservative jurisprudence typically does—it does not offer a challenge to the very substance and coherence of the legislation.
The most direct and telling challenge to the original prosecution of Jack Phillips would be to question the very coherence of a law that bars discrimination based on “sexual orientation.” Even gay activists consider some sexual orientations as illegitimate (for example, pedophilia and bestiality). But if the activists can regard certain orientations as illegitimate, we could hardly be warranted in sustaining a law that, in a sweeping way, bans all discriminations based on sexual orientation. It has also been found that sexual orientations may be seriously unstable. Paul McHugh noted that “a 10-year study of 79 non-heterosexual women reported that 67% changed their identity at least once, and 36% changed their identity more than once.” In other words, we do not even have a clear definition of the “protected class,” the people licensed to launch lawsuits and stir prosecutions. These laws can be challenged far more aptly, then, on substantive grounds, rather than flying to exemptions based on “belief.” A carve-out is made for the religious, while the authorities are free to enforce those unjustified laws on everyone else. The advantage of casting the argument on substantive grounds is that a judgment against the statute would protect the rights of everyone, including people who profess no religious ground, should they refuse to accept the rightness of same-sex marriage or transgenderism.
But in the meantime, something else slipped into the first Supreme Court decision on the Masterpiece baker, and it may set off some deeper tremors in our law. Justices Alito and Gorsuch evidently understood that the rescue of the Masterpiece baker produced a judgment but settled nothing in the law. They took the occasion, then, to move the argument to another level by adding another step to a position Justice Alito had taken earlier in the term on the restriction of “speech.” That position had marked a striking turn for him. Now, joined by Justice Gorsuch, he sought to put the problem of religious freedom on a slightly different plane with this sweeping new maxim:
Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.
That concept of the “proudest boast of our free speech jurisprudence” had come only a few months earlier in Matal v. Tam, in which the Court struck down a decision of the U.S. Trademark and Patent Office to deny an Asian rock band the freedom to call themselves “The Slants.” With Justice Alito writing, the Court drew on some high-flying lines the late Justice Brennan delivered in striking down a law that banned the burning of the American flag. But as those lines were applied now on the matter of judging words that were insulting or assaulting, Justice Alito put the matter on a broader plane. This kind of law, he wrote,
offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.
The shift is simple, but unsettling. For the implication here is that “offense” is entirely subjective—that different words or modes of expression may offend people for reasons that may be wholly personal or idiosyncratic. What is ruled out, then, is that an act of speech or expression may be offensive in principle—that it may inflict harms without justification. It may be the making of threatening phone calls, defaming people with libel, or stirring a mob to acts of genocide. But the assumption seems to be that nothing done through the instrument of speech may ever be, in principle, offensive and wrongful.
Those lines brought back to me the scenes from forty years ago when I was engaged in the argument with the American Civil Liberties Union (ACLU) over a band of Nazis parading in Skokie, Illinois, in a community containing many Jews who had survived the Holocaust. David Hamlin of the ACLU declared at the time that the First Amendment “protects all ideas—popular or despised, good or bad . . . so that each of us can make a free and intelligent choice.” In Hamlin’s translation, it was a matter of being “popular” or “despised”—to be despised was merely to be “unpopular.” It was no part of his understanding that certain things may be, in principle, despicable. And now, this position of the ACLU seems to be settling as the position even of conservatives on the Court.
This is no surprise: The conservatives had been moving in this direction for years. And yet, against this trend, Samuel Alito had been the main holdout, often alone. He was the sole dissenter when the Court draped the protections of the First Amendment on the Rev. Phelps and his crew as they picketed the funeral of a dead marine with signs saying “Semper Fi Fags” and “Thank God for Dead Soldiers.” Justice Alito, often alone among his colleagues, refused to detach himself from the common-sense understanding, long recognized in the law, that certain speech acts could be menacing and assaulting gestures in themselves. But he apparently felt compelled at last to join the current that was carrying his other colleagues. Only months after Matal v. Tam, in the case of the Masterpiece baker, he was joined by Justice Gorsuch in extending this strand of relativism to the domain of religion: It was now the “proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”
And yet, could it really be that nothing offered under the name of religion may ever embrace anything that is in principle wrong or despicable—that “offensiveness” is simply in the eye of the beholder? What about Satanism? How could the affirmation of radical evil be consistent with anything that we consider “religion,” rightly understood? It may be the conjecture of these two accomplished judges that, with the left more actively hostile to religion, it is necessary to stop casting judgments on any religious teachings as legitimate or illegitimate, defensible or indefensible, in order to secure religious freedom in our political setting. That—and perhaps only that—may explain why even the conservative judges lean on the test of convictions sincerely held.
Our friends on the courts and in law schools invoke the test of “sincerity” precisely for the purpose of avoiding any moral judgment on the substance of what a religion teaches. And yet, what is the test of “sincerity” other than a moral test? We could readily imagine the characters gathered in the Church of the Flying Spaghetti Monster asking, “Why is it necessary or legitimate to be ‘sincere’? Why can’t we have, after all, a ‘Religion of Insincerity’?” To insist on “sincerity” is to make nothing less than a back-door moral judgment on what counts as legitimate or illegitimate religion.
The most striking silence after this decision came from writers on conservative jurisprudence, who failed to ask how this new understanding of religion could plausibly be reconciled with “Originalism.” The American Union began, as Lincoln held, with the Declaration of Independence, with God the Creator who endowed us with unalienable rights. That God was the Author of the Laws of Nature, including the moral laws. The notion of “religion” utterly bereft of grounds of moral judgment could hardly be reconciled with the God of the Declaration of Independence; it could not be part of any Original Understanding.
Beyond that, this notion of religion, purged of any standards of moral judgment, contains a flaw that destroys it from within. The decisive step here was added by my friend Gunnar Gundersen: If we detach the understanding of religion from any moral test of what counts as legitimate or illegitimate in a moral teaching, then we have also removed the moral ground for treating religion itself as a good. If there is no truth underlying our judgments of good and bad, then what is the ground on which we claim religion to be a good that should be honored in public life? Why do we cast more protections around religion with a Religious Freedom Restoration Act? Why do we insist that the government tailor the means to its ends more narrowly when they touch upon religious practice? Why should religion evoke that kind of concern when we cannot explain the substance of religion or impute anything true in its teaching?
Indeed, we have heard these questions from the adversaries of religion. They have asked why these “beliefs” should be accorded any higher degree of deference than the other things that people care strongly about, such as saving the environment or promoting vegetarianism. The response to this challenge cannot be seeking to protect religion by denying that the religious may be rightly governed, along with everyone else, by laws that truly command what is rightful and forbid what is wrongful. Almost no religious group in this country would claim to be exempted from the laws that bar discriminations based on race. But such groups do exist, and they may supply a serious test for our friends on the Court with a “hypothetical” of the following kind:
Let us suppose that, instead of Jack Phillips, we had a baker who is an earnest evangelical of the kind we have among us, a man who sincerely believes that there is a ground in Scripture for mandating the separation of the races. He refuses to make a cake, not for a same-sex couple, but for a couple celebrating an interracial marriage. Does anyone believe that the Court would bring this baker under the same ruling that protected the Masterpiece baker? And if that does strike us as implausible, we would be moved to ask: Why would these deeply thoughtful judges come out with something so seemingly untenable, so radically at odds with the understanding of religion and God that was bound up with our founding?
The best answer I might offer is that the justices have come to recognize, perhaps with regret, that they are actors with an inescapable role to play in statecraft. They have come to see that they may have to make some of the same moves in prudence that people in the political branches are routinely pressed to make. Winston Churchill caught this sense of the matter, as only a practiced political man could, in a commentary on Edmund Burke:
A statesman, in contact with the moving current of events and anxious to keep the ship on an even keel and steer a steady course, may lean all his weight now on one side and now on the other. His arguments in each case, when contrasted, can be shown to be not only very different in character, but contradictory in spirit and opposite in direction: yet his object will throughout have remained the same.His resolves, his wishes, his outlook may have been unchanged, his methods may be verbally irreconcilable. We cannot call this inconsistency. In fact it may be claimed to be the truest consistency. The only way a man can remain consistent amid changing circumstances is to change with them while preserving the same dominating purpose.
No one who has served in the Department of Justice, borne the trials of confirmation, and absorbed the experience of judging—no one, that is, with the experience of Samuel Alito and Neil Gorsuch—can be politically tone-deaf. Judges of their experience are not political innocents. My hunch is that they have come to see the landscape of the law growing ever more menacing for the religious. It may be that, in their reckoning, the wave of political intolerance has risen so high that they think there is a better chance of securing freedom by drawing a wider line to protect all manner of political speech and religious conviction, no matter how zany. With this sense of things, they may be willing to protect some aggressive religious racists and even Satanists if that is the cost of protecting legitimate religion and religious institutions.
But as the late Stan Evans used to say, “the problem with pragmatism is that it doesn’t work.” If we declare now that there are no grounds for discriminating between legitimate and illegitimate religions based on what they teach—no grounds on which to show that religion counts as a good, better than many other things of human interest—once those moral claims are swept away, what is it that holds the party of the left back? What restrains the left when it picks up where the Obama administration left off, when it imposes on Christian hospitals, charities, and small schools the obligations to cover abortion in their medical plans, to allow abortions to be performed in their hospitals, and to extend benefits to those seeking sex-altering medical procedures?
Justices Alito and Gorsuch, consummate lawyers and judges worldly in politics, may be tilting to one side or another, trying to preserve political and religious freedom in a darkening time. Their stance may prove faintly plausible for getting through the day, but my plea is that an untenable argument will be the source of even graver troubles to come. And it will not serve the ends of those pilots trying to steer safely through the current troubles at hand. My conjecture here would rest on an experience from nineteen years ago, in June 2000. I was at the Supreme Court, when the Court handed down decisions on two notable laws, one from Nebraska barring partial-birth abortions, and one from Colorado barring pro-life sidewalk counselors from coming closer than eight feet to women who were entering abortion clinics and attempting to speak with them. The Court struck down Nebraska’s law in Stenberg v. Carhart, and by implication, the laws in thirty other states that sought to bar partial-birth abortions. At the same time, in Hill v. Colorado, the Court sustained the law that imposed restraints on sidewalk counselors that were placed on no other speakers in public settings. Justice Scalia gave over to Justice Thomas the task of reading aloud a moving dissent from the decision on partial-birth abortion, that grisly procedure of killing a child at the point of birth. Scalia yielded that task to Justice Thomas because he wished to read a crisp summary of a carefully crafted—and forceful—dissent in the case from Colorado. There, he defended the freedom of pro-lifers to approach, with pleas for a conversation, the women entering the clinic.
I talked with the justice later that night, and he said that he wanted to read that dissent because there were reporters present in the courtroom, including a reporter from the New York Times. And “wouldn’t you think,” he asked, “that they would be deeply concerned about the First Amendment?” The decision in Hill was, on the very face of things, portentous. It unsettled precedents long thought to be settled on speech in the public streets, for the Court now fashioned nothing less than a right to be free from “unwanted” speech or “communication.” Unwanted speech? As with unions engaging in near-violent picketing outside a business? Justice Stevens insisted, with a straight face, that the law in this case was neutral, for the barring of uninvited speech could bar “used car salesmen, animal rights activists, fundraisers, environmentalists and missionaries.” But the law in Colorado was not neutral. It focused precisely on “the right to protest or counsel against certain medical procedures.” There was not the slightest doubt of the viewpoint that the law was seeking to bar.
Scalia himself had contributed notably to the trend of barring any restrictions on the content of speech, including a famous decision to strike down a law forbidding the burning of crosses. But the point coming through now, so clearly and painfully for him, was that this broad protection of speech would have one glaring cutout: One group alone would be set apart from that domain of freedom conferred on everyone else. Scalia could speak, then, with cold accuracy as he observed that the decision of the Court was “in stark contradiction of the constitutional principles we apply in other contexts.” For “what is before us, after all, is a speech regulation directed against the opponents of abortion,” and what kicks in is the “ad hoc nullification machine” that blocks “whatever doctrines of constitutional law stand in the way of that highly favored practice.”
Scalia’s dissent from the Hill case nineteen years ago should be taken as an apt warning for our friends on the bench now. The sweeping away of moral grounds for judging speech did not purchase any larger freedom or safety for the people who opposed the killing of human beings in the womb. A further descent into a relativism even more explicit, on speech and religion, will no more succeed now in shoring up rights, or purchasing safety, for the people who are so casually branded as bigots and “homophobes” on the campuses of the country.
In the past, the law could lean on the difference between calling names and making arguments. It could ban the antics of provocation such as cross burning and swastikas while leaving people free to publish the wildest racial tracts. But if we have lost confidence that we can explain that common-sense distinction, we are surely not going to find our salvation in teaching that there are no distinctions or plausible standards of judgment in the realm of speech or religion. That sad moment of recognition that broke in on Justice Scalia is a foreshadowing, I fear, of what awaits the current members of the Court, when they stand back later and view what they have wrought.
Hadley Arkes is Ney Professor of Jurisprudence Emeritus at Amherst College, and Founder/Director of the James Wilson Institute in Washington, D.C. This essay is drawn from his 2018 Diane Knippers Memorial Lecture for the Institute on Religion & Democracy.
