In a piece for First Things, JWI Founder & Director Hadley Arkes analyzes how the issues of speech and religion have proven a challenge to the Court for years. should be clear that neither “coerced speech” nor “religious belief” can supply the ground of the judgment. At oral argument, he thought that Justices Kavanaugh and Barrett found themselves moving in another—and better—direction. He saw them moving—or hoped they were moving—in the direction of his old friend Justice Sutherland in the AP case and appealing to a deeper principle of the 1st Amendment. Prof. Arkes offers the comparison here to the point John Quincy Adams had in mind when he argued that the “right to petition the government” was simply implicit in the logic of a free political order or a regime of law, even if it were never mentioned in the First Amendment. He has the uneasy feeling that the Court will try to find the “low door under the wall” in dealing with the case.
Some excerpts from the piece:
“As the case of Lorie Smith headed into the long argument before the Supreme Court, the twin issues that perplexed the justices in the case of Masterpiece Cakeshop were still perplexing. And neither one could finally provide the ground for the judgment. The argument on behalf of Lorie Smith, as with Jack Phillips, is that: (a) this is indeed a case of compelled speech, forcing her to affirm things she does not mean and silence herself in expressing her convictions, and (b) what is engaged here are convictions firmed up in her religion. Neither one could supply the ground for resolving the case, but they were the only strands that Lorie Smith’s lawyers could clutch. For the most decisive argument had been foreclosed them in Justice Kennedy’s opinion in Obergefell and other precedents of the Court.”
“Since the days of Justice Holmes there has been an incorrigible willingness on the part of lawyers to see legal decisions as judgments that may be readily detached from moral judgments. But the logic is unbreakable, for the logic of morals begets the “logic of law.” We need some compelling judgments on the things that are right or wrong, just or unjust, before we would be justified in imposing laws on people. What the lawyers on my side seem to have trouble grasping is that the defenders of same-sex marriage see that arrangement as profoundly, morally right. Seen through that lens it is quite as wrong to reject same-sex marriage as to discriminate on the basis of race. No one would take seriously a claim by anyone of the old Bob Jones persuasion to be exempted on religious grounds from the laws that bar racial discrimination, and I know of no church or religious organization that makes that claim today. But in the same way, the defenders of same-sex marriage see no defensible ground for a religious claim here as well. The libertarians point out that if Lorie Smith or Jack Phillips refused to deal with same-sex weddings, there are plenty other bakers or web designers who would be happy for the business. But for the defenders of same-sex marriage, that argument is beside the point: They regard same-sex marriage as deeply rightful, and those who reject it, or cast an adverse moral judgment on it, are wrongdoers. They deserve to be publicly branded as wrongdoers, and receive some punishment or penalty.”
“It is no threat to same-sex marriage that people are still free to express their reservations about it. Lorie Smith poses no threats to those unions, and the wide freedom claimed, without apology, by publishing houses should attach with no strain to other private enterprises as well. It should extend, then, without a moment’s doubt, to people who design cakes—or websites.”