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