The James Wilson Foundation on Natural Rights and the American Founding

“Conservative Jurisprudence Resorts to Relativism”–Professor Hadley Arkes in First Things

Writing at First Things, Professor Arkes weighs in on the decision of the Supreme Court in Masterpiece Cakeshop. The majority opinion has been described as a “narrow” decision to vindicate a Colorado baker in his refusal to supply a wedding cake for a same-sex marriage ceremony. At stake were the defendant’s rights to free expression and the free exercise of religion. However, as Professor Arkes laments, neither claim would find any substantive grounds for justification in the opinions of the Court. In both the majority decision written by Justice Kennedy and the concurrence of Justice Gorsuch, Professor Arkes sees only different shades of the same aversion on the part of the Court’s “conservative” wing to deal with a justification for defending Jack Phillips’s “expressive act” itself.

Excerpts from “Conservative Jurisprudence Resorts to Relativism”:

“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.”

“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.”

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.”

Read the full essay here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790