Conservative Jurisprudence Resorts to Relativism

Jack Phillips is the now-famous owner of Masterpiece Cakeshop in Lakewood, Colorado, the baker who in 2012 suddenly found himself stamped and vilified as a lawbreaker by the Colorado Civil Rights Commission. Phillips had refused to engage his arts, and offer his stamp of approval, by baking a custom cake for two men in a same-sex wedding. He was willing to sell the men cakes, as he was willing to deal with all his customers, without inquiring into their “sexual orientation.” He drew the line at custom cakes for same-sex weddings, citing his earnest moral convictions, reinforced by his Evangelical Christian faith.

As his case was carried all the way to the Supreme Court, his supporters saw two key First Amendment principles at stake: Phillips’s claim to the free exercise of religion, and his freedom of speech—in this instance, his freedom from being compelled to engage in an “expressive act” so deeply at odds with his moral and religious convictions. The Court long ago accepted that the burning of a draft card could be an act of “symbolic speech,” as could the wearing of an armband to protest the war in Vietnam. And yet the liberal judges affected to wrestle earnestly with the question of how a cake made for a same-sex wedding could have the moral meaning Phillips attached to it.

The Supreme Court on Monday came down on Jack Phillips’s side, in a narrow decision written by Justice Kennedy, with grudging support from Justices Kagan and Breyer. And so narrow was the decision that it did not really vindicate either of those principles of the First Amendment that Phillips’s supporters had seen at stake in the case.

Phillips’s case arose in 2012, well before the Supreme Court started to sweep away the barriers to same-sex marriage. The laws in Colorado at the time offered no acceptance of that form of marriage. Phillips ran afoul of the Colorado Anti-Discrimination Act, which had been amended to bar the withholding of services in places of “public accommodation” on the basis not only of “disability, race, creed, color,” but now also of “sexual orientation” and “marital status.” Apparently the local authorities understood the aversion to same-sex marriage in the same way Justice Kennedy did: as an irrational “animus” toward gays and lesbians. That the refusal to accept same-sex marriage might spring from simple moral reasoning, or from religious conviction, quite detached from any animus, would count for nothing when it came to evading the edicts of the law. Ministers, of course, would not be obliged to perform a marriage that violated the tenets of their religion. But the parishioners of the same ministers would not be allowed to withhold marriage licenses from couples of the same sex, nor to claim an exemption from the laws that barred any turning away from same-sex couples.

Justice Kagan, in her concurring opinion, sought to emphasize what Justice Kennedy had not challenged: “Phillips contravened,” she wrote, the command of the Anti-Discrimination Act “that customers receive ‘the full and equal enjoyment’ of public accommodations irrespective of their sexual orientation. … I read the Court’s opinion as fully consistent with that view.” No religious convictions would save Jack Phillips from the need to respect that law or face a punishment.

Then on what did the judgment turn? During the oral argument over the case, Justice Kennedy was evidently enraged by the record of gratuitous contempt shown to Phillips by members of the Commission. Those passages supplied for him facts so egregious that they would actually determine the judgment. In their treatment of the case, the Commissioners had evinced “elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” One commissioner had remarked that “freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust. … We can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use—to use their religion to hurt others.”

For Kennedy, this diatribe against the religious was reprehensible in the same measure: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

Yes, 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.

Justice Gorsuch was content to pick up the same theme as a matter grave enough to govern the case—that the “government fail[ed] to act neutrally toward the free exercise of religion.” In an opinion joined by Justice Alito, Gorsuch emphasized a parallel case that threaded through the other opinions as well, with a kind of Rashomon effect, with each judge seeing that case in a different light: In 2014 in Colorado, a Christian activist named William Jack sought to have a custom cake made bearing biblical citations and disapproving of homosexuality. Three different bakers refused to make the cake. Jack then brought a complaint under the same statute that was engaged against Phillips—the statute that barred discrimination against customers in public accommodations because of religious creed as well as sexual orientation. The bakers claimed that for reasons wholly secular (read: moral), they found the proposal offensive. And in this case, the Commission upheld the right of the bakers to refuse.

For Justice Kagan, there was no disparity: The bakers in the Jack case had simply absorbed the premises of the statute itself, on the wrongness of casting an adverse judgment on homosexuality and same-sex marriage. But Justice Gorsuch saw the case in a strikingly different way: These were two cases in which “bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation).” In both cases, the concern for “sexual orientation” overrode claims of religious freedom. What was at work then, Gorsuch thought, was a “double standard.” Or rather, it was an asymmetry with a single standard: that no religious teaching would be respected if it cast moral disapproval on homosexuality and same-sex marriage.

It is worth remembering that in 1967, when the Supreme Court struck down the laws that barred interracial marriage, the evangelicals drawn to the Rev. Bob Jones still thought they found a scriptural ground for rejecting the sexual coupling between the races. That perspective held on into the 1980s, and for all we know we can find people of this persuasion among us today. And yet a baker with that religious belief would never be taken seriously these days if he refused to bake a cake for an interracial wedding. The difference is that we have long settled in with the understanding that the principle that bars us from making adverse moral judgments about people on the basis of race is anchored in reasons that the seriously religious in this country will not contest. 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.

This is a matter we are constantly encountering in the conflicts over “sexual orientation” and same-sex marriage. Even advancing an argument on this matter is taken as a sign of bigotry. The temptation is to assure people that one has gay friends and gets along nicely with everyone. But that defense is not merely beside the point; it bespeaks the most serious moral confusion. I could waive any attempt to defend my good nature, and insist that even if I were an ogre, without any redeeming features, my argument has a claim to be treated on its own terms, to rise and fall on the strength of its own reasoning.

And if that’s the case, then the argument that most of the Court was willing to settle on here in defense of Jack Phillips was a massive moral irrelevance. It was the work of men and women who have made their vocation in explaining judgments on right and wrong—moral judgments—and yet they affect to be strangers to the properties of moral reasoning. The oddity is that, in these strands of opinion at work in the case, it was only Ruth Bader Ginsburg who backed into the recognition that all of the complaints about official hostility were essentially beside the point. Writing in dissent, she strung together all the assertions offered by her colleagues—most notably from Justice Kennedy himself: “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” After a virtual anthology of these passages, all confirming the same point, Justice Ginsburg simply spoke the blunt truth:

Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins [the two men wishing to marry]. That refusal to bake the cake, based on religious convictions, remained the decisive point in the case, and Justice Kennedy, along with most of his colleagues, said nothing to challenge the rightness of that law.

And so the decision in Masterpiece Cakeshop leaves firmly in place the law fashioned by Justice Kennedy in Obergefell v. Hodges, and that point touches again on the hesitations and handwringing that have afflicted the conservative judges in cases of this sort. It reminds us also of how they have managed to lure themselves into clever schemes to avoid all the hazards and fears of a moral reasoning that may be altogether too strenuous, they think, for lawyers and judges to perform. Justice Gorsuch might have crystallized the problem when he asserted that “[Phillips’s] religious beliefs are entitled to no less respectful treatment than the bakers’ secular beliefs in Mr. Jack’s case.” Now, how would we go about showing that? Two paths present themselves. In one, we could take it as our challenge to show that Phillips’s rejection of same-sex marriage is quite as grounded in reason as the so-called “secular” arguments offered by his adversaries. But to take that path is to return to the argument that shows why those laws that preserved marriage as a relation confined to one man and one women were entirely defensible. And yet that is not how the conservatives chose to defend the laws on marriage, at least not until Chief Justice Roberts’s dissenting opinion in Obergefell, by which time it was too late. Clearly, the conservatives don’t think they have the possibility of overturning Obergefell, and they have lost their appetite for making the argument again, even if it would keep the question alive and keep reminding us where the real lines of division are on this matter.

The second path is the one Justice Gorsuch chose: to make the most sweeping argument, unaffected by qualifications at any level, to respect any reasoning that people offer, springing from what they regard “sincerely” as their religion. And so Eddie C. Thomas, a Jehovah’s Witness, was quite willing to work in a factory making armaments, but he drew the line at fabricating turrets for tanks (Thomas v. Review Board). A lay observer might find it hard to grasp the principle that governs this refinement of moral reasoning, but for Justices Gorsuch and Alito, the task of explaining it does not come under their job description: “Our job,” said Gorsuch, “is to look beyond written words and afford legal protection to any sincere act of faith.” The test of “sincerity” is long established among the judges, and it relieves them of the need to face the unpleasant task of recognizing a distinction between legitimate and illegitimate religions, based on the substance of what those religions profess to teach. In the last term, in Matal v. Tam, the Court declared that there was no speech that could be in principle offensive, and now Justice Gorsuch, joined by Justice Alito, is willing to acknowledge that the same relativism has been extended to religion:

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.

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.

The headlines today say that the Court, in this decision, has “put off the Big Rights” at issue in this case. That rather implies that the same crew, with the same repertoire of reasoning, has the prospect of doing something better. Tom Stoppard had a character in one of his plays say, “Tomorrow is another day.” To which another character replies, “No, I find that tomorrow is usually the same day.” For the Court, in its current cast, tomorrow and even next year will be the same day. Justice Kennedy managed to protect Jack Phillips by speaking the only lines that can survive today, or tomorrow, the body of law he has put in place. The local authorities will still be able to force Catholic institutions out of business if they will not place children for adoption with same-sex couples, or cover those couples in their medical insurance. They will just have to be nice while they’re doing it.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights and the American Founding.