Religious Freedom and the Crisis Over Conservative Jurisprudence.

• Author: Arkes, Hadley

In that notable poem by Robert Southey, a man was explaining to his grandchildren the Battle of Blenheim famously fought and won in that neighborhood by the Duke of Marlborough. (3) The precise reasons for the battle seemed to fade from memory over the years, and the poem ended in this way:

"And everybody praised the Duke Who this great fight did win. But what good came of it at last?... 'Why that I cannot tell,' said he, But 'twas a famous victory." (4) We have just come through a run of three to six years in the Supreme Court in which the conservative side managed to win a string of cases on religious freedom, and by "won," I mean that the decisions seemed to come down, for the conservatives, on the right side. Those decisions protected religious people who were being set upon and faced serious penalties, crippling fines, the loss of their businesses, and subjection to public obloquy and humiliation. The religious could well be grateful to see their friends rescued. But they would have grounds to be less than cheered when we consider the reasoning contained, or the principles articulated, in these decisions. For the defenders of religious freedom, the decisions had the right outcome, but I do not think they could give a coherent moral account of the wrong they were averting or the rights they were seeking to vindicate. And so, we must wonder what real protections or assurances these decisions may offer to the religious in the future.

The sense of this disparity, between the relief of the outcomes and the reasoning that brought them forth, seems to be breaking upon people rather late. We find people professing to be genuinely shocked and surprised that the same activists, armed with authority in Colorado, have once more come after Jack Phillips, the master baker, (5) even after he "won" his case in the Supreme Court. (6) More recently, the authorities have made a public disavowal of their plans for pursuing Mr. Phillips. (7) But that change of plans seemed to spring more from avoiding needless embarrassment, rather than confessing a serious moral error.

Still, those possibilities for pursuing Phillips remained because the governing majority of the Court never challenged the grounds of the law in the Masterpiece Cakeshop case. The majority 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 Tightness of same-sex marriage and condemned as wrongdoers, deserving of punishment, those who would deny the Tightness of same-sex marriage. (8) If those laws were indeed justified and rightful, Justice Kennedy suffered not a trace of doubt that they would override any religious claim based merely on "belief." (9) Kennedy's concern, and the decisive point for the judgment, was that the commissioners in Colorado had been gratuitous in their expressions of contempt for the beliefs or convictions held by Jack Phillips. (10)

But of course if the law were indeed firmly justified--as it would be in the case of people who turned away from others on the basis of race--then it would have been quite irrelevant if the authorities, in finding guilt, had expressed their contempt for people who were willing to draw adverse moral judgments about the goodness or badness of people (their moral worth) solely on the basis of race. And so, if the authorities, in enforcing the law, expressed their contempt, say, for racists, that might have been overwrought, but that itself could not have made it wrong to enforce a law that rightly barred racial discrimination.

No gratuitous remarks by the authorities in Colorado could have made it wrong then to punish Jack Phillips for refusing to accept the Tightness of a same sex wedding--if those laws were indeed rightful and justified. But that is how Mr. Justice Kennedy and his colleagues left it. It was a virtual invitation, then, to the activists in Colorado to seek to try it again, this time testing Phillips's refusal to bake a cake to celebrate transgenderism. (11) And there is no substantive ground on which to turn back that prosecution unless there is a willingness to test the very substance of the legislation. There is no legal framework to protect Phillips from future lawsuits until the Court is willing to weigh, in a demanding way, whether the law is justified in condemning people who have good reason to regard "transgenderism" as a deep fallacy and fantasy--a fallacy running against the deep objective truth of nature that people are born male or female. (12)

And yet, this is not what conservative jurisprudence does; it does not test the very substance of the law by testing the evidence and principled reasoning on which the law is based. When it comes to those morally critical issues of marriage and abortion, the reasoning coming from our best conservative judges has been that the Constitution says nothing about marriage and abortion. (13)

Therefore, federal judges have no grounds on which to declare constitutional rights on these matters, and so these cases should simply be returned to the States and the political arena, to be decided by voters. But "marriage" was not in the Constitution when the Supreme Court, in 1967, struck down the laws that barred marriage across racial lines. (14) That did not stop the Court from dealing with the issue of marriage in those cases. What was needed at that time was an explanation of why race was irrelevant to the meaning of marriage. (15) And what is needed now, in regard to same-sex marriage, is for the conservative judges to draw on the arguments offered by Robert George, Ryan Anderson, and others (myself included) to make the case for marriage as the committed relationship of one man and one woman under law--not that it is merely traditional and familiar, but rather traditional and familiar because it is enduringly rightful. (16)

But it was not until the Court installed same-sex marriage that Chief Justice Roberts, in dissent, began to explain the deep rationale for marriage as we have known it. (17) And so we have had for years a state of affairs in which the liberal side argues with moral conviction--wrong conviction, I think--and spurious arguments (even though they are moral arguments). Those arguments are not met with substantive moral arguments on the other side. The persistent retreat is a formula that is designed precisely to avoid any engagement with the moral substance of the issues lest those arguments license judges actually to engage in--gasp!--moral reasoning. For moral reasoning has been regarded since the end of the 19th century as subversive of the law. Justice Holmes famously offered the hope that "every word of moral significance could be banished from the law altogether." (18) As the scholar James Herget observed, "[b]y the last quarter of the nineteenth century, the leading jurists had practically turned all responsibility for questions of morality over to the nonlawyers.... Moralists were not interested in law, [and] lawyers were not interested in morality." (19) As Holmes condensed the matter, "moral rights if there are any... are for the philosopher." (20) They are not for the lawyer or judge.

And so, we find ourselves now, politically and juridically, in this situation: We have a liberal party that has never been more detached from religion and, in fact, is now actively hostile to religion. This liberal party brings forth Administrations of the Left that have no compunctions about putting Catholic charities out of business if they will not arrange adoptions for same-sex couples, (21) or putting Christian colleges out of business if they will not cover abortions and same-sex couples in their medical plans. (22) And, these Administrations of the Left suffer no hesitations as they work to remove protections for doctors and nurses who do not want to become accomplices in performing abortions. (23)

On the other side, we have a political party more pro-life than ever, but hesitant about asserting the role of the political branches in scaling back Roe v. Wade. (24) Apart from abortion, conservative congressmen no longer feel comfortable talking in public about issues such as same-sex marriage, and they are much less inclined to take steps to counter or scale back Obergefell v. Hodges--the decision that installed same sex marriage. (25) The warnings had been posted by conservative judges over the years, but most sharply by Justice Felix Frankfurter: Let judges start making the hard decisions on the most controversial matters in our politics and law, and we will soon bring forth a class of politicians with the reflexes of civil servants--they will be content to run errands for their constituents and leave all of the hard decisions to those political figures wearing robes, those political men and women who don't need to run for re-election. (26)

And so, what we have now is a Republican political class that would be content to leave the most vexing decisions to the courts. They have made minimal movements forward to extend protections for the child in the womb, but they have held back from enacting measures that could do far more to scale back the holding in Roe v. Wade. The result is that conservatives in the country have absorbed the notion that salvation can come only through the courts. And so the main effort goes to appointing the judges who might--just might--overturn Roe or scale it back. Under those conditions, the future of conservatism lies with the people who would shape the list of lawyers eligible to become judges. Those happen to be many of my own friends who have absorbed by now the tenets of conservative jurisprudence.

Well, as Donald Rumsfeld famously said, "You go to war with the army you have." (27) Conservatives are now compelled to seek their ends with political alliances among the lawyers and judges who have absorbed the disabling side of what passes these days as "conservative...