Mark and I have this podcast on the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which occurred last week at the Supreme Court. The podcast covers the central issues that the justices asked about and discussed.
Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.
Here’s an excerpt from my post on the case:
Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.
Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.
You can read the whole post here.
For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:
Happy Thanksgiving to all of our readers. Here is President George Washington’s mighty Thanksgiving Day Proclamation of 1789 to inspire your own tables today.
Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor—and whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”
Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be—That we may then all unite in rendering unto him our sincere and humble thanks—for his kind care and protection of the People of this Country previous to their becoming a Nation—for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war—for the great degree of tranquillity, union, and plenty, which we have since enjoyed—for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted—for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.
and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions—to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually—to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed—to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord—To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us—and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.
Given under my hand at the City of New-York the third day of October in the year of our Lord 1789.
At the First Things site this morning, I have an essay challenging conventional wisdom on the nascent political alliance between American Evangelicals and the Russian Orthodox Church. Here’s a sample:
With respect, I am skeptical of the consensus on both these points. First, I doubt that this alliance can be deep or long-lasting. True, some Evangelical leaders have spoken well lately of Vladimir Putin, who makes Orthodoxy a major part of his public image, and some Evangelical organizations have cooperated with the Russian Orthodox Church in international conferences on the family. But profound differences in belief and practice exist, which will be very difficult to overcome, assuming either side even wishes to overcome them. Evangelicals are not likely to see the value of venerating icons, for example, and the Orthodox are not likely to accept Evangelical ecclesiology. An alliance between the Catholic and Orthodox Churches, which share much more in terms of practice and spirituality, would make more sense. I also wonder how many people outside the leadership know about the nascent alliance or take it seriously. International conferences are one thing; actual commitment in the pews (assuming there are pews!) is quite another.
Nevertheless—and here is the second point—if an alliance is forming, it does not strike me as necessarily insincere. Politics no doubt play a role. But Evangelicals and Orthodox may also see each other, genuinely, as allies in a conflict with an aggressive progressivism that sets the agenda in the US and on the world stage. Religious conservatives could easily feel under siege and look for reinforcements.
You can read the whole essay here.
All this week, I’ll be posting items on Orthodox Christianity, an important but understudied (at least in America) Christian communion. To start, here’s a new report from the Pew Research Center on Religion and Public Life, “Orthodox Christianity in the 21st Century,” released this month. Orthodox Christianity has relatively few communicants in the United States, mostly immigrants from Orthodox countries and their descendants, as well as a small number of converts, especially from Evangelical denominations. But, globally, Orthodoxy is the third largest Christian communion, after Catholics and Protestants, with a combined number in the hundreds of millions.
Orthodox leaders are becoming increasingly visible in global affairs. For example, the Ecumenical Patriarch has been active on environmental questions. Thanks to an increasingly assertive Russian Church, Orthodoxy is beginning to have an impact in human rights fora like the UN Commission. In fact, even in the US, Orthodox Christians may have had an impact on the last presidential election. At a panel at Fordham University earlier this month, scholar Nicholas Gvosdev pointed out that Donald Trump appealed to Orthodox Christians in places like Michigan–which Trump won with a narrow margin.
The Pew report reveals that although their numbers across the globe are growing in absolute terms, the number of Orthodox Christians has declined relative to Catholics and Protestants. In the Middle East, at least, that decline is explained in part by persecution against Orthodox (and other) Christians in the twentieth century, which continues today. Seventy years of Communist repression in the former Soviet Union and Eastern bloc also didn’t help. But the report reveals a hopeful resurgence of Orthodox Christianity in former Communist countries.
The report pays a lot of attention to the largest Orthodox Church outside Europe, the Ethiopian Orthodox Church (36 million members), one of the five so-called Oriental Orthodox Churches. This is commendable, as people often assume that Orthodoxy is an entirely European phenomenon. Although declining in its historic European home, Christianity is soaring in the global south, including in Africa. In fact, the Ethiopian Church, an ancient Christian body without any colonial associations, may be well positioned to do missionary work across the continent in the coming century.
The report details many interesting facts about Orthodox practice and belief — compared to Catholics and mainline Protestants, for example, the Orthodox are deeply conservative on social issues like gender and marriage — as well as prospects for ecumenism. It will be very valuable for anyone interested in the sociology of Christianity today. (H/T: George Demacopoulos at Fordham’s Orthodox Christian Studies Center, who served as a scholarly adviser on the report).
Happy Columbus Day! I was surprised to learn recently that Columbus Day was made a national holiday by Franklin Delano Roosevelt in 1937 (though previous presidents had urged the country to celebrate Columbus), who recognized it in the following proclamation (note the invitation to churches to observe it with “appropriate ceremonies”!):
NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of America, under and by virtue of the authority vested in me by the aforesaid public resolution, do by this proclamation designate October 12, 1937, as Columbus Day and do direct that on that day the flag of the United States be displayed on all Government buildings ; and, further, I do invite the people of the United States to observe the day with appropriate ceremonies in schools and churches, or other suitable places.
Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:
In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.
Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.
But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.
And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.
In this podcast, Mark and I discuss three law and religion cases either decided by the Supreme Court this term or to be decided next term: Trinity Lutheran, Masterpiece Cakeshop, and IRAP v. Trump.
At the First Things site today, I have an essay on the Masterpiece Cakeshop case, in which the Supreme Court granted cert at the end of its term a couple of weeks ago. In the case, a cake shop owner argues that the First Amendment grants him the right to decline to design and bake a cake for a same-sex marriage. I use Masterpiece Cakeshop, and a hypothetical question I posed to my class in law and religion, to explore Tocqueville’s observation that the concept of equality inevitably expands in democratic societies, and to explain how a case in which same-sex marriage is so central may, in fact, have little to do with sexuality:
Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.
Tocqueville saw this coming long ago. Democracies, he wrote, prize equality above all other values. Their “passion for equality,” he observed, is “ardent, insatiable, incessant, invincible.” It is not simply a matter of assuring every person equal rights under law. Tocqueville believed, in Patrick Deneen’s words, that democracies inevitably seek to do away with “any apparent differences” among people—“material, social, or personal.” No distinctions are to be tolerated. In fact, Tocqueville wrote that democratic societies have an inevitable tendency toward pantheism, since, in the end, even a distinction between Creator and created becomes intolerable.
If I’m right that, in the long run, social intuitions drive the law, and if I’m also right that my students’ reaction reflects something about social intuitions in America today, then litigants like the shop owner in Masterpiece Cakeshop will have an increasingly hard time prevailing in American courts. As the concept of equality inevitably extends further and further, distinctions like the one he is trying to maintain will appear more and more rebarbative. People will fail to empathize at a basic level.
You can read the whole essay here.