I used to say of our late friend Justice Scalia that, in composing his opinions, he would offer the most handsome examples of the moral reasoning of the natural law, while professing up and down that such reasoning should not be offered by a judge. We have seen judges backing into the reasoning of natural…
I used to say of our late friend Justice Scalia that, in composing his opinions, he would offer the most handsome examples of the moral reasoning of the natural law, while professing up and down that such reasoning should not be offered by a judge. We have seen judges backing into the reasoning of natural law without apparently realizing it, and without realizing, as Molière had it, that they had been “speaking prose all their lives.”
I guess it should come as no surprise then, on the other side, that we find writers and lawyers backing into the premises of moral relativism, while insisting up and down they are not relativists. I found it hard to believe, myself, that David French would be absorbing the premises of relativism, and so I posed a simple question to him, based on his remarks during his debate with Sohrab Ahmari.
But I posed that question while raising a sharper challenge: to what extent was he willing to contest the “culture war” with arguments that really engaged the moral substance of the issues? Was French willing to use those measures at hand to start chipping away, and possibly scaling back, the decision of the Supreme Court in Obergefell on same-sex marriage? Or was he willing to follow the path of some conservatives, with a Burkean affectation, and regard that issue now as “settled,” and not worth the effort any longer to resist? On that central matter of abortion, was he willing to do more than follow the line of “conservative jurisprudence” and return the issue to the States? Might he join the efforts of some of us to restore the role of the political branches on this issue, and engage the powers of Congress to act under the 14th Amendment? The protections of the law have been swept away from a whole class of human beings, those beings found in wombs—does he really think that Congress has no rightful powers to act?
These are all practical questions of moment. But instead of responding to those rather precise challenges, David French devoted his whole response to a denial that he had fallen into moral relativism. The surprise, if not the shocking thing, is that this accomplished writer seemed utterly unaware that he was digging himself in more deeply in that relativism as he wrote—and that virtually nothing he was saying made contact with the argument. What he offered instead was a remarkable replay of the famous Monty Python sketch on “The Department of Arguments” with French playing the John Cleese role.
A Response Beside the Point
Let’s recall the question. French had cited a notable case on religious groups in a public university (Widmar v. Vincent) and celebrated what he took to be the cardinal point in that case as “viewpoint neutrality.” The Court had come down on the side of an Evangelical group, not because it recognized something legitimate and salutary about religion in the life of a republic, but because it would no more cast a moral judgment on the Christians than on the Leninists and the Nazis when it came to their rightful claim to use rooms on the campus. “My reading of French then,” as I said, “is that he would not have excluded Satanists from rooms at the University of Missouri.”
That reading seemed to follow because it was in line with the arguments offered by other friends who would indeed protect Satanists under the rubric of “religion.” They would recede from casting an adverse judgment on Satanists because they didn’t wish to make any moral judgments on the legitimacy of what any religion taught or practiced. But as I’ve argued, the radical affirmation of evil cannot be consistent with anything we have rightly considered “religion” in this country. It can hardly be reconciled with the God of the Declaration of Independence, the Author of the Laws of Nature, including the Moral Laws.
French, in his response, never rose to deny that reading. He has not responded to that simple query. He has not averred that his understanding of religion would contain the moral premises that rejected the affirmation of evil as a legitimate religious doctrine. On the contrary, he has found other ways of affirming that relativism by offering a parade of liberties and principles, proclaimed in the Constitution, and concluding that they were available to everyone without moral discrimination. And so he says, “the protection of individual and associational freedoms—as defined by the Bill of Rights and the Civil War Amendments—is not an act of moral relativism. It’s a powerful moral affirmation of the equal dignity and worth of citizens before the state.”
But surely French must know that these are protections and rights only for legitimate associations. The Constitution wasn’t offering a license here to cover criminal associations, like the Mafia, and serious challenges have been raised in the past to “associations” such as the Communist party and the Ku Klux Klan. What is running through French’s commentary is the refusal to recognize the oldest axiom of reasoning in classic thought and the American regime: the difference between liberty and license. We affirm liberty for those being called “moral agents” who have reasons for their acts; but every exercise of liberty is properly open to the question of whether that liberty has been used to engage in wrongful acts, as opposed to acts that are rightful or innocent of wrongdoing.
French seems to be under the curious assumption that the affirming of liberty for all commits us to withholding judgment on what is done with that liberty. And so he has curiously written,“I am not a moral relativist because I believe the liberty to disagree is a positive good.” Surely that is a non-sequitur that has no bearing on the subject. It is of course a good thing to be free to have arguments about what is right or wrong, just or unjust. But that cannot mean that we respect, in equal measure, every judgment that is reached at the end of that argument, whether it is a Nazi plea for genocide or the resistance to the killing of the innocent. As Chesterton remarked, “An open mind, like an open mouth, must finally close on something.”
No argument makes sense unless it implies that there are standards of reason at work in reaching a judgment. This common sense of morality has applied to religion from the beginning in this country. As Harry Jaffa remarked,
There may not be a rationalist religion, but there is certainly a rational component of any religion comprehended by the protections of the First Amendment. The free exercise of religion does not include the right to human sacrifice, to suttee, to temple prostitution, to the use of hallucinatory drugs, or to any other of the thousand and one barbarous and savage religious practices that have been features of barbarous and savage religions.
When David French refuses to rule out Satanism under the rubric of legitimate religions, is it because he has receded altogether from the very possibility of judging practices as “barbarous” and “savage” as long as they are done under the name of “religion”?
The laws came to ban polygamy, and when that practice was purged from Mormonism, the Church of the Latter Day Saints had to be regarded as free to practice its devotions without the intrusions of the government into its teaching or into the arrangement of its Elders and officers. We cannot be bereft of moral judgment when it comes to judging the practices of religion, but it is a facile assumption on the part of David French and some of his friends that, in barring the wrongful uses of freedom, we are barring religious freedom altogether.
The same understanding was at work in the traditional doctrines on regulating speech before the Supreme Court took its first turn to relativism in 1971. Thugs could be barred from burning crosses outside the homes of black families even as people could still be free to publish racist diatribes. Mr. Rosenfeld could be barred from using “motherf—ng” in every clause he spoke without being barred from making the most searing critique of his schoolboard in New Jersey. Historically, the law in America has usually worked to bar the most egregious expressions of insult and obscenity, and nothing in that scheme, moderately and prudently applied, has prevented us from engaging in robust political argument.
Liberty is not License
H.L. Mencken once spoke of those who seem to think that if we’re reserved about demagoguery, we must be against democracy, and “if we’re reluctant to buy the cancer salve, it must be because we want Uncle Julius to die.” It is not fitting for a writer of David French’s caliber to suggest that if we insist on our capacity for moral judgment—if we reject, as we must, moral relativism—then we must be against freedom of speech and religion.
David French is denying he is a relativist while decrying, as an enemy of freedom, anyone who claims that we can distinguish between liberty and license—that we can actually judge at times that wrongful things are done and said through the exercise of freedom. But as the Monty Python troup reminded us with comic clarity, this mode of writing cannot meet the argument.
In the sketch, Michael Palin walks into the office of the Department of Arguments, and pays a trial fee for five minutes of argument. When he walks into the inner office, John Cleese says, “I told you once not to do that.” Palin says, “No you haven’t,” for he had just arrived. Cleese: “Yes, I have.” Palin: “No, you haven’t”—back and forth until Palin says “this isn’t an argument.” “Yes it is,” says Cleese. No, Palin says, “this is a contradiction.” An “argument,” he says, is a statement that is connected to a proposition [which can be judged as true or false].
David French remains my friend, but it is time for him to stop treating contradiction as though it supplied the reasoning of an argument. And beyond that, it is time to get past the caricatures, the straw men, and the affectations of moral relativism; it is time to get on with facing those challenges that were posed: Is he willing to wage the argument in the culture war by making the case for marriage again in the courts and the Congress? Would he have the conservative party appeal to the country over this matter of transgenderism, with its war on parents, its disfiguring of children, and its coercion of the rest of us? In the style of Lincoln, would he be willing to engage the powers of Congress on the matter of abortion to restore protections for those human lives residing for a while in wombs?
In short, what is it that French would wish to see conservatives doing if they would take seriously the moral urgency of the culture war, rather than receding with urbane resignation, and settling in with the regime that has been reshaped for us by the Left?
Young Sohrab Ahmari did a spirited thing when he picked a fight earlier this year with David French, a man we both regard as a political friend. At the Catholic University, a large crowd showed up to see the first personal encounter between the two writers. At issue, supposedly, was the seriousness of conservatives in…
Young Sohrab Ahmari did a spirited thing when he picked a fight earlier this year with David French, a man we both regard as a political friend.
At the Catholic University, a large crowd showed up to see the first personal encounter between the two writers. At issue, supposedly, was the seriousness of conservatives in fighting the culture war. Would we insist, say, that marriage is and must be between one man and one woman? Or do we accept that argument now as lost, and do we start retreating to a state of accommodation as the forces of LGBTQ+ reshape, through the laws, the understanding of “family,” “the human person,” and the terms on which our private lives are constituted?
As the evening advanced, we had the curious sense that neither man, in this unexpected quarrel, quite grasped his own best argument.
Viewpoint Neutrality is Moral Relativism
The warning lights came on when David French invoked the Supreme Court case of Widmar v. Vincent (1982). It was a case in which the State of Missouri sought to block all public funding or patronage for religion. And so the University of Missouri at Kansas City, an instrument of the State, would not allow religious groups the use of rooms for worship and discussions. That policy was invoked to deny rooms to an Evangelical group named Cornerstone.
When I used to teach this case, I brought out what was remarkable in it in this way: When the Supreme Court starts making serious mistakes in its rulings, and then those mistakes accumulate with layers of precedents, we reach a point when the Court can get something right only by accident. By the time Widmar had come along, the Court had remade its doctrine on the regulation of speech by backing into a stylish version of moral relativism. The signature line came from Justice John Harlan in Cohen v. California (1971): “One man’s vulgarity is another’s lyric.” Harlan’s novelty here was that he rediscovered the teachings of “logical positivism” that were all the rage when he was an undergraduate, though they had been long abandoned by then in the schools of philosophy. But Harlan argued now on positivist grounds that political speech, on matters of right and wrong, was often heated speech and largely emotive in nature, without any cognitive content. Harlan insisted that there was no principled ground for recognizing a class of obscene or assaulting speech, and no grounds of truth in testing political speech.
When the Court brought that teaching to bear on the problem of Evangelicals at the University of Missouri, it produced this ironic outcome: The Court would sustain a right on the part of the religious to have access to the rooms at a public university, but not because there was anything especially legitimate or salutary about religion in the life of a republic. Rather, the Christians couldn’t be ruled out because it was not legitimate any longer to make discriminations based on the “content” of the speech. The Christians couldn’t be barred for the same reason that the University could no longer rule out Leninists, Nazis, or Satanists.
And there was the alarm, for that was exactly the doctrine that David French was not only accepting but celebrating. The Widmar case had come to represent, for him, “viewpoint-neutral access to public facilities.” He went on to say, “Viewpoint neutrality is what we must defend. I want drag queens to come into a relation with Jesus Christ, but I am not going to usurp the Constitution to do this.”
There, in a quick shot, was the core of the argument within this family of conservatives.
As I’ve argued sharply, some of our friends have sought to protect religious liberty by retreating to moral relativism. They are willing enough to credit religious sentiments as religious if they are “sincerely held.” They attach this importance to sincerity precisely because they don’t wish to reach any moral judgments on the legitimacy of what any religious group purports to teach. For that reason some of our friends, litigating these issues, refuse to rule out Satanists from the circle of believers they would protect.
When David French celebrated “viewpoint-neutral access to public facilities,” I took it as a signal that he had signed on to this relativism, which has been deepened now by the accession of two other friends, Justices Antonin Scalia and Neil Gorsuch. My reading of French then is that he would not have excluded Satanists from rooms at the University of Missouri.
And yet how could Satanism, the affirmation of radical evil, be compatible with anything we can regard as a legitimate religion? It certainly cannot be compatible with the God of the Declaration of Independence, the Author of the Laws of Nature, including the moral laws. French professes his reverence for the Declaration and the American Founding, but moral relativism could never be reconciled with a document that relied on the understanding of “self-evident” or necessary moral truths. Nor could French’s understanding of religion be reconciled with that of even Thomas Jefferson, who did not accept the divinity of Jesus. In his first inaugural address Jefferson said quite enough to detach himself—and us—from this new relativism on religion. He made the point that Americans, divided into different sects and churches, were nevertheless
enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness after.
We are no less able today than we were in Jefferson’s time to make moral judgments on the teachings that are offered us in the name of religion. And contra David French, we can make those moral judgments on religion even without turning this regime into a theocracy or a Christian republic.
The Challenge Ahead
From the distance of his “viewpoint neutrality,” French was content to dismiss as a politically serious matter the incident that Ahmari had taken as a telling sign of the times: a drag queen, in a public library in Sacramento, reading aloud to children at a “story hour.” French said that he would like to see the drag queen come into a relation with Jesus, but as I noted, he was determined not “to usurp the Constitution to do this. The price of wiping out Drag Queen Story Hour is too high.” The Constitution he was invoking was the Constitution reshaped in 1971 by Justice Harlan and his colleagues to absorb this liberating novelty of moral relativism.
But when Ahmari was faced with this challenge, he had no ready response. He was not willing to contest French’s reading of the Constitution and, more than that, he was not able to identify the principle that motivated his concern. That drag queen was given the legitimacy of a public place because many educated people had come to accept a key line offered as a principle: that it is wrong to discriminate—wrong to cast disapproving moral judgments on people because of their “sexual orientation.” That same premise had been woven into a statute—the Colorado Anti-Discrimination Act—and used to prosecute Jack Phillips of Masterpiece Cakeshop for his refusal to design a cake for a same-sex wedding. It’s the same premise invoked widely today to sue employers who are reluctant to employ the transgendered.
That principle has taken hold as a new orthodoxy, in corporations as well as universities—it has become one of the leading moral orthodoxies in this country, and it is regularly weaponized against ordinary people like Phillips. And yet it is utterly incoherent. As an abstract proposition, barring all adverse judgments on all sexual orientations, it would bar us from casting a judgment on the zoophile, who would have sex with animals. Even gay activists will make discriminations—they will argue over whether to make a place in gay pride parades for the pedophiles, the members of the Man-Boy Love Association. But if even gay activists will regard certain sexual orientations as illegitimate or unacceptable, we could hardly be warranted in passing laws that, in a sweeping way, bar all discriminations based on sexual orientation.
That is the real point behind Ahmari’s concern. It was a point that French missed entirely as he tried to shift Ahmari to the question of how he would cope, under the Constitution, with this issue of the Drag Queen Story Hour. But Ahmari could not bring French back to that real question: It was not a matter of pondering whether the problem is answered by dealing with the authorities who control the local library.
The issue has to be dealt with through the willingness of conservative lawyers to challenge, in litigation, the very coherence of sexual orientation as a protected category. When the laws of marriage were challenged in Louisiana, Judge Martin Feldman took space at the end of his opinion to point up the incoherence of the claim over “sexual orientation.” But he did not make that argument the core of his holding. Our friends who litigate these cases are generally inclined not to challenge the substance of statutes on “sexual orientation” but to look for that “low door under the wall”: they seek an “exemption” for the religious, based on beliefs that cannot be tested for their truth or falsity.
In short, many of our friends have followed the drift even of conservative jurists into moral relativism, and they have now absorbed those premises as their own. After all, these arguments often work in getting the result we want in these cases, don’t they? The question arising now, I take it, in the argument between Ahmari and French, is whether we are willing to break out of this trance of positivism and relativism and engage the substance of the moral arguments at the center of the culture war.
David French might put this question to himself: The Supreme Court has now installed same-sex marriage in our laws. Do we think that the case for marriage as the union of one man and one woman as the most morally defensible form of marriage has been refuted?
If not, then the culture war should not be regarded as “over” on this matter. We should not then be following the counsel of conservative lawyers who tell us that the issue is now “lost” and “settled.” The operational question for my friend David French is whether he takes that line on this matter—and others. The question of how we line up in taking sides here is what will define and name the camps that are taking form now, even in the circle of our friends.
Hadley Arkes is Founder and Director of The James Wilson Institute on Natural Rights and the American Founding. He was the main advocate, and architect, of the bill that became known as the Born-Alive Infants’ Protection Act. Among other books, he is the author of Natural Rights and the Right to Choose (2002), and Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (2010), both with Cambridge University Press. A longtime member of the faculty at Amherst College, and The Edward Ney Professor of Jurisprudence, since 2016 he has assumed emeritus status.