Balkinization: An Unnecessary Conflict?

An Unnecessary Conflict?

Guest Blogger

For the symposium on Andrew Koppelman, Gay Rights vs Religious Liberty? The Unnecessary Conflict (Oxford University Press, 2020).

Steven D. Smith

Andy Koppelman makes it clear from the outset that people like me are not his book’s primary audience; we are more in the nature of intended beneficiaries. Andy mainly wants to persuade people on the Left that religious conservatives, though tragically misguided in our beliefs (especially on matters of sexual morality), are not necessarily evil, and that society can make some space for us in the public square instead of shunting us into the shadows like out-and-out racists.

So I should be appreciative; and I am. Andy exudes a genuine magnanimity of spirit that is rare these days. He also demonstrates real courage, because some of his pleas and positions could render him repellent in his own circles. (Indeed, I’m afraid that as an old-time liberal– i.e. as a vigorous proponent of pluralism and free speech-- he is already falling behind.) If there is any hope of healing the frightening polarization that afflicts our society, that hope rests on people like Andy.

Also, I find his analysis persuasive. Not all of it, of course. I am profoundly unpersuaded by the arguments in Chapter 5 (the Masterpiece Cakeshop chapter) and Chapter 6 (the Hobby Lobby chapter). But those issues have been thoroughly debated, and Andy and I have already exchanged arguments on these points at length, in private and occasionally in public. So I won’t devote this limited space to rehashing those arguments yet again.

Instead, I want to underscore a couple of more implicit but ultimately more consequential differences. These differences have to do with what kind of species we are– with philosophical anthropology, as some people put it– and with our historical situation.

The Liberal Framework

Andy seems to me to operate basically on liberal assumptions. (No surprise there.) For one thing, he treats human beings essentially as interest-seeking animals. Not in any crass sense: Andy recognizes that people have moral and religious commitments, which inform and shape our interests. But he urges early on that we should not get too hung up on our conflicting “principles” and should instead focus on our “interests.” The overall goal is or ought to be to achieve our interests as fully as possible. In a pluralistic situation, this will involve trade-offs and compromises, which will be worked out mainly on the basis of pragmatic assessments of what is workable, etc.

Andy also seems to assume as secure a traditionally liberal institutional framework for the working out of these compromises. By that I mean a framework constituted by rule of law, a commitment to the equality of citizens, a government that is neutral at least toward religion, a strong commitment to free speech, and a genuine commitment to pluralism. Andy knows that these liberal commitments are imperfectly realized: conservatives fail to embrace the full implications of equality, he thinks, and people on the Left– the book’s intended audience– have tended in recent years to underappreciate free speech and pluralism. The remedy for these shortcomings is to call people back to the pluralistic liberal ideal– which is basically what the book tries to do.

As it happens, I have considerable sympathy for this approach. The interest-seeking conception does capture a vitally important dimension of who we are. And the liberal framework may well be– or may have been?-- the best arrangement for promoting human freedom and flourishing in a pluralistic situation (even if that framework depends on benign fictions, like neutrality, and question-begging truisms, like equality). There are passages in Andy’s book that warmed my quasi-liberal heart in an almost nostalgic way. Wasn’t it wonderful when, back in the day, our elites used to recite– maybe they actually believed– Voltaire’s “I will defend to the death . . .” etc.?

For someone in this liberal mood, the details of Andy’s proposals may be debatable, but the overall approach seems so eminently sensible that it is hard to understand why anyone would resist it. Which, ironically, in itself provokes a serious doubt. That is because, as Andy himself makes clear, it seems that many people today– maybe even most people, at least among the more active participants– do resist his approach. Thus, Andy presents himself, not implausibly, as representing a small moderate middle besieged by intolerant conservatives on the Right and intolerant progressives on the Left.

So, why are so many people so resistant to Andy’s so sensible approach?

Wondering about the assumptions

My suggestion is that Andy’s basic liberal assumptions are no longer the pertinent ones. That fact may be regrettable. But, as they say, it is what it is.

More specifically, in addition to being interest-seeking animals, we are also, and more fundamentally, “moral believing animals” who feel driven to live in harmony with some overall view of the nature and meaning of things. The idea is expressed in Chesterton’s dictum that “the most practical and important thing about a man is still his view of the universe. . . . [T]he question is not whether the theory of the cosmos affects matters, but whether in the long run, anything else affects them.”

People constituted in this way understandably prefer to live in a community that reflects, or at least is friendly toward, their “view of the universe.” So long as they feel secure in that respect, people may not think about that view so much as assume it: their daily activities, and their politics, may be mostly directed to their “interests.” Liberalism and pragmatic interest-seeking may work pretty well in such a situation. But when people begin to perceive themselves to be in a community that is hostile to their view of the universe, or to their fundamental faith, their deeper commitments may come into play. This is our situation today, I think– for religious conservatives, certainly, but for many others as well.

Thus, as Robert Bellah’s influential work on civil religion showed, through much of our history Americans understood their national community in basically biblical terms. This understanding evolved: it started out as generically Protestant but over time developed into Will Herberg’s Protestant-Catholic-Jew. In that environment a Supreme Court majority, speaking through Justice Douglas of all people, could say, “We are a religious people whose institutions presuppose a Supreme Being.” The Court could say this as if it were noting some self-evident truth.

By the 1960s, though, as Bellah also explained, the long-standing “civil religion” was falling apart. And since that time, the various parties have been struggling, in increasingly acrimonious fashion, to define what sort of nation we live in– what its defining philosophy or fundamental principles and commitments are. Its real principles and commitments, as opposed to axiomatic but “empty” vessels like “equality” that have to have their content poured into them from other more substantive sources. (See Peter Westen, etc.) And because communities are “imagined” (as Benedict Anderson explained), and because such imaginings arise from and coalesce around public symbols, many of the most contentious battles of our time are to a significant extent battles over symbolism.

In some cases, as in controversies over statues or crosses, the matters are almost purely symbolic. In other instances, such as controversies over wedding cakes or contraception, there are more practical “interests” involved as well. Even so, we misunderstand these controversies if we hone in on the conflicting “interests” but fail to recognize that the community-constituting symbolism is an important dimension– for many, probably the most important dimension– of these disputes. Such controversies are, to quote Chesterton again, battles of “creeds masquerading as policies,” and if we debate only the policies but neglect the community-constituting creeds, we miss what is really going on.

Similarly, we should not be surprised if people on both sides of a dispute are unreceptive to proposed compromises that offer what might seem like acceptable or at least debatable trade-offs on the “interests” but that neglect to notice the weighty or weightier symbolic dimensions of the controversies.

Why it matters

I have noted that people prefer to live in a community that is hospitable toward their view of the universe. This is not just a matter of psychological comfort. People fear that a community constituted on a view hostile to theirs will, at least over time, work to disadvantage or marginalize them in concrete ways. This fear is entirely reasonable. And despite (or maybe because of) his conciliatory intentions, Andy’s book is likely to reenforce it.

Thus, Andy argues that Christian conservatives like Jack Phillips ought sometimes to be accommodated. As noted, his argument is primarily against people who think the Phillipses of the world should not be accommodated at all; so Christians presumably ought to appreciate Andy’s intervention. And I do. Even so, in the end, the accommodation Andy offers is remarkably meager. Almost negligible.

In the wedding vendor cases, a very narrow exemption would be available to a Jack Phillips on terms that Andy comes close to admitting will in practice render the exemption meaningless. Andy notes that Phillips himself was subjected to death threats and vandalism. A business cannot operate under such conditions. But such reprisals will predictably be inflicted on virtually any baker or photographer or florist who makes a public announcement that he or she will not do same-sex weddings; and it is hardly comforting to be told that this could be a viable compromise if everybody would just respect the law. Because (some) people just won’t.

More generally, Andy opposes accommodating religious believers in ways that would impose costs or harms on third parties. Apparently it is fine to impose (sometimes massive) costs on others to accommodate things like physical or psychological disabilities, but not to accommodate deeply-held religious convictions. This principle would still allow for accommodation in relatively trivial cases where the authorities are restricting religion just out of orneriness. (Like the prison authorities who forbade Muslims to wear quarter-inch beards.) But in almost all cases of consequence, accommodation of religion will involve some third-party costs– thus precluding accommodation on Andy’s principle. (I have yet to hear a satisfying explanation for why the long-standing exemption of religious pacifists from military service would be permissible under this principle.)

Finally, religious conservatives will not be reassured by Andy’s repeated statements that their traditional sexual morality is “gravely and tragically wrong,” that it is “deplorable that they believe what they believe,” and that “[t]hey should be ashamed of themselves and repent.” (126) To be clear, I don’t intend this observation as a criticism. I understand that Andy is being his refreshingly candid and colorful self, and also that he needs to make such statements to assure his primary audience of his bona fides. And essentially, he is simply recognizing that anyone who believes someone else is seriously mistaken will probably wish that person would give up his or her misguided opinions. This wish need not be a manifestation of hatred or contempt; it may instead be an expression of concern and even love. Christians, as he recognizes, will have similar wishes toward him. Fair enough.

Even so, the fact that the sentiment is sincere and not contemptuous only underscores the reality that if Andy’s basic commitments come to be the official orthodoxy (whether or not disguised as “neutrality” or poured into “equality”), then maybe– just maybe– people with traditional religious views will occasionally be accommodated; but the nation is inevitably going to attempt to discourage and defeat the pernicious views– in its schools, in its laws, in its funding, in all of the ways that government attempts to disfavor views that it find obnoxious. That is not a message in which religious conservatives can find comfort.

All that said, I repeat that if the polarization in the country is to be overcome, it will be with the help of people like Andy-- and, more generally, with the restoration of the sort of liberal framework he assumes. I happen to think that this liberal framework is most securely grounded in the generically biblical self-understanding that, per Bellah, characterized this country through the mid-twentieth century. But that is an argument for a different essay.

Steven D. Smith is Warren Distinguished Professor of Law at the University of San Diego. You can reach him by e-mail at smiths@sandiego.edu

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