Discourses

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.

True Religion

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.

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.

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