The James Wilson Foundation on Natural Rights and the American Founding

“Backing Into Relativism”–Prof. Hadley Arkes in First Things

Over the past year, the conservative legal movement has celebrated victories for religious freedom. However, in a recent piece for First Things, Professor Arkes expressed his concern that the conservative jurists on the Supreme Court might be falling into a kind of relativism in the way that they articulate their opinions.

Take Masterpiece Cakeshop v. Colorado Civil Rights Commision, for example. The Court’s decision hinges upon the mistreatment of Colorado baker Jack Phillips by the Colorado commissioners, while neglecting to “offer a challenge to the very substance and coherence of of the legislation” itself. This failure to substantively engage with the principles at stake opened the door for the activists to target Phillips yet again, with a request to bake a cake to celebrate a sex-change transition. The Court has yet to differentiate between what beliefs and practices may legitimately be considered “religious”–and therefore confusion still surrounds the debate over religious freedom.

Professor Arkes writes: “If we detach the understanding of religious 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 religious itself as a good. If there is no truth underlying our judgements 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?”

Here are some more excerpts from the piece:

“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.”

“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?”

“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.”


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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