Masterpiece Cakeshop and the Passion for Equality

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.

Happy Independence Day

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In honor of the Fourth of July, the Forum is taking off today. Happy Independence Day and see you tomorrow!

Epstein, “The Classical Liberal Constitution”

Speaking of classical liberalism, here is a new book from the most prominent libertarian voice in the American legal academy, Richard Epstein, The Classical Liberal Constitution: the Uncertain Quest for Limited Government (Harvard). It certainly seems the case that many disputes over religious liberty today result from expanding governmental control over aspects of life the framers of the Free Exercise Clause could not have imagined — the Contraception Mandate, for example. Readers can decide whether that expansion, and the attendant conflicts over religious liberty, are the inevitable consequences of modernity or, as Epstein suggests, the result of an an unnecessary ideological project unwisely endorsed by the Supreme Court. The publisher’s description is below.

9780674975460American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard A. Epstein laments this complacency which, he believes, explains America’s current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers’ original text, and to the limited government this theory supports.

Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.

Epstein’s carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government’s role in regulating economic activity, freedom of speech and religion, and equal protection.

 

Rubin, “Judicial Review and American Conservatism”

In March, the Cambridge University Press will release “Judicial Review and American Conservatism: Christianity, Public Education, and the Federal Courts in the Reagan Era,” by Robert Daniel Rubin.  The publisher’s description follows: 

The Christian Right of the 1980s forged its political identity largely in response to what it perceived as liberal ‘judicial activism’. Robert Daniel Rubin tells this story 9781107060555as it played out in Mobile, Alabama. There, a community conflict pitted a group of conservative evangelicals, a sympathetic federal judge, and a handful of conservative intellectuals against a religious agnostic opposed to prayer in schools, and a school system accused of promoting a religion called ‘secular humanism’. The twists in the Mobile conflict speak to the changes and continuities that marked the relationship of 1980s’ religious conservatism to democracy, the courts, and the Constitution. By alternately focusing its gaze on the local conflict and related events in Washington, DC, this book weaves a captivating narrative. Historians, political scientists, and constitutional lawyers will find, in Rubin’s study, a challenging new perspective on the history of the Christian Right in the United States.

“Constitution Writing, Religion and Democracy” (Bâli & Lerner, eds.)

In January, Cambridge University Press will release “Constitution Writing, Religion and Democracy,” edited by Aslı Ü. Bâli (University of California, Los Angeles) and Hanna Lerner (Tel-Aviv University).  The publisher’s description follows:

What role do and should constitutions play in mitigating intense disagreements over 9781107070516the religious character of a state? And what kind of constitutional solutions might reconcile democracy with the type of religious demands raised in contemporary democratising or democratic states? Tensions over religion-state relations are gaining increasing salience in constitution writing and rewriting around the world. This book explores the challenge of crafting a democratic constitution under conditions of deep disagreement over a state’s religious or secular identity. It draws on a broad range of relevant case studies of past and current constitutional debates in Europe, Asia, Africa and the Middle East, and offers valuable lessons for societies soon to embark on constitution drafting or amendment processes where religion is an issue of contention.

Berg: Free Exercise Exemptions and the Original Understanding

This autumn, we have been hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Thomas Berg (University of St. Thomas (Minnesota)) responds to Muñoz. For other posts in this series, please click here.

In his excellent journal article “Two Concepts of Religious Liberty,”[1] and in a recent LRF blog post,[2] Vincent Philip Muñoz argues that the founders’ natural-rights theory of religious freedom is very different from the modern practice of protecting religious exercise through exemption from otherwise valid, generally applicable laws. The original understanding, he says, supports the rule of Employment Division v. Smith’s rejection of mandatory exemptions under the Free Exercise, rather than Sherbert v. Verner’s rule mandating exemptions unless the government can show a “compelling interest” in burdening religious exercise. And Muñoz criticizes the arguments of Michael McConnell, who concluded that while the question was close, “[t]he historical record casts doubt on [Smith’s] interpretation of the free exercise clause.”[3]

Under current law, this historical debate is of limited importance. Although the exemptions approach has been rejected for the Free Exercise Clause, it has been adopted in some form in federal legislation[4] and in the legislation or constitutional rulings of more than 30 states. As a result, the exemptions approach applies to all federal laws, to every state’s land use and prison regulations, and, in much of the nation, to the full body of state and local laws. Muñoz says that legislatures should decide whether to exempt religion from general law; many of them have decided to do so through religious freedom restoration acts (RFRAs), federal and state.

In fact, however, the exemptions approach finds considerable support in the religious-freedom tradition of the founding; it may even be the best historical reading, although that is a difficult question. Smith was not dictated by originalism; the Court should be willing to entertain modifying or overruling it; and at the very least legislatures and state courts should feel no embarrassment at adopting the exemptions approach. I will first discuss the historical issues and then turn to some of Muñoz’s other qualms about the exemptions approach.

The Original Understanding, Exemptions, and “Harms to Others”

Muñoz’s journal article focuses heavily on the natural-rights outlook of the framers, arguing that it supports a “jurisdictional” approach that simply prevents government from regulating religion as religion: that is, from targeting it with a non-neutral law. But that argument ignored the aspect of founding-era history that, for McConnell, was the Continue reading

Loewe, “Of Sacred Lands and Strip Malls”

In September, Rowman & Littlefield released “Of Sacred Lands and Strip Malls: The Battle for Puvungna,” by Ronald Loewe (California State University).  The publisher’s description follows:

A twenty-two acre strip of land—known as Puvungna—lies at the edge of 9780759121607California State University’s Long Beach campus. The land, indisputably owned by California, is also sacred to several Native American tribes. And these twenty-two acres have been the nexus for an acrimonious and costly conflict over control of the land. Of Sacred Lands and Strip Malls tells the story of Puvungna, from the region’s deep history, through years of struggle between activists and campus administration, and ongoing reverberations from the conflict.

As Loewe makes clear, this is a case study with implications beyond a single controversy; at stake in the legal battle is the constitutionality of state codes meant to protect sacred sites from commercial development, and the right of individuals to participate in public hearings. The case also raises questions about the nature of contract archaeology, applied anthropology, and the relative status of ethnography and ethnohistorical research. It is a compelling snapshot of issues surrounding contemporary Native American landscapes.

“Religious Liberty” (Robinson & Williams, eds.)

This month, Cambridge University Press releases “Religious Liberty: Essays on First Amendment Law,” edited by Daniel Robinson (University of Oxford) and Richard Williams (Brigham Young University).  The publisher’s description follows:

The principal aim of the establishment and free exercise clauses of the First Amendment was to preclude congressional imposition of a national church. A balance was sought between states’ rights and the rights of individuals to exercise their 9781107147607.jpgreligious conscience. While the founding fathers were debating such issues, the potential for serious conflict was confined chiefly to variations among the dominant Christian sects. Today, issues of marriage, child bearing, cultural diversity, and corporate personhood, among others, suffuse constitutional jurisprudence, raising difficult questions regarding the nature of beliefs that qualify as ‘religious’, and the reach of law into the realm in which those beliefs are held. The essays collected in this volume explore in a selective and instructive way the intellectual and philosophical roots of religious liberty and contemporary confrontations between this liberty and the authority of secular law.

Around the Web this Week

Some law and religion news from around the web this week:

McGarvie, “Law and Religion in American History”

In July, Cambridge University Press released “Law and Religion in American History: Public Values and Private Conscience,” by Mark Douglas McGarvie (College of William and Mary).  The publisher’s description follows: 

This book furthers dialogue on the separation of church and state with an approach that emphasizes intellectual history and the constitutional theory that underlies 9781107150935American society. Mark Douglas McGarvie explains that the founding fathers of America considered the right of conscience to be an individual right, to be protected against governmental interference. While the religion clauses enunciated this right, its true protection occurred in the creation of separate public and private spheres. Religion and the churches were placed in the private sector. Yet, politically active Christians have intermittently mounted challenges to this bifurcation in calling for a greater public role for Christian faith and morality in American society. Both students and scholars will learn much from this intellectual history of law and religion that contextualizes a four-hundred-year-old ideological struggle.

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