This week, the Supreme Court (or SCOTUS, for the cool kids / kids who don’t like to type long words), released their opinion in the case of Masterpiece Cakeshop V Colorado Civil Rights Commission. Because it’s 2018 and up is down, white is black, and the Black Panther is an Alt-Right parable, SCOTUS rules that the Colorado Civil Right Commission technically lived up to their name and violated someone’s civil rights. Kids, this is why you call your fundraiser the “Race for the Cure” not the “Walk for Cancer.”
Everyone expected a bombshell, and most people think this decision was a dud. Everyone was expecting something along the lines of ‘No, you can’t force someone to bake that cake.’ What we got instead was a ruling that said the Civil Rights Commission clearly hates religious people and therefor their finding is thrown out.
I’m going to try to convince you that, for us weirdos, this may be a very important dud. Well, no. That’s too optimistic. I’m going to try to convince you it should be a very important dud, but it probably won’t be.
In broad strokes, Justice Kennedy wrote an opinion a few years ago requiring the government to recognize gay marriage. He threw in some language that people with religious objections might be wrong, but they aren’t evil. In standard Kennedy style, it was long on rhetoric and short on formal logic. Which is OK. It’s a style. But it’s one that makes it easy to ignore the parts you don’t like.
And boy howdy, did our finger-wagging betters ignore that part. But Kennedy really meant it. I’ll get back to that in a second. First, a diversion.
When thinking about history, context is king. Why does the First Amendment call out freedom of religion separately and additionally with freedom to assemble? Same reason we have the Second Amendment. The Founders knew their history and knew what went down in the British Civil Wars. What happened? Well, lots of wars. Some of it over state suppression of religion.
And it was very clear to the Founders. People will die for their religion. Worse, they’ll kill their neighbors over it. Better to take it off the table.
Over the next couple hundred years, this has mostly worked out for us libertarian and libertarian-adjacent folks. Sure, it’s not logically consistent to call out one kind of moral code and not another. It probably riles up the kind of libertarians who can spell deontological on the first try. But in the cause of liberty, I think religion has been a net positive. Martin Luther was a professor of theology. Martin Luther King was a reverend. An open and vibrant market in churches leads to better churches and a more vibrant religiosity of the population compared to state religion.
And, for the most part, we could rely on the legislative and executive branches of governments to protect generic mainline Protestant freedoms. Sorry Catholics, no public schools or wine on Sundays for you!
But the winds of change have been blowing, as anyone who read a newspaper after Obergefell could see. Legislatures and executives are now more protective of the new mainline morality: left of center secularism. The court, as we see in Obergefell, is good with this. In fact, they push farther than the other branches sometimes. How should we feel about this, as libertarians and libertarian-adjacent folk?
I think in principle, it’s probably a net win for liberty if it’s handled as a limit on state power. Let’s face it, “don’t shit on people with fringe theories of morality” is probably an abstract idea that we should be able to get behind. We’ve got fringy theories sometimes.
In practice, not so much. We aren’t seeing left-of-center-secularism leading to restraint on government. Instead, the whip is now lashing in a different direction. Surprise, surprise: the left-of-center is now motivated by animus and using state power to score points in the culture war. This is my shocked face.
I said Obergefell was kind of rhetorical. It was. It was lofty and nice. It was nice to people with deeply held religious opinions. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Most people skipped right over that and made with the disparaging. But they shouldn’t have. See, Kennedy has a very particular and idiosyncratic idea about how the government should relate to the populous. He thinks it shouldn’t be a tool of animus, used to beat down your political opponents. Crazy, right?
But this puts us in a funny spot. We have two big decisions that should work together. One says you can’t craft laws that oppress people just because your religion tells you to. One says you can’t act in a way that oppresses people just because you think they are scum.
I’m… I’m totally good with that. If we could use that as the basis for some formal logic, that takes us places. Polygamy laws were clearly put in place because people had religious differences with the Mormons and because people thought they were scum. Lots of zoning is pretty clearly an effort to keep ‘those people’ away from us nice folk, for various values of those and nice. Nixon started the drug war because he hated those long hair hippies always talking about peace and love and brotherhood and voting Democrat.
Do I think this is going to happen? Do I think SCOTUS is going to say that any of these rules were motivated by animus and should be thrown out? Nope. Kennedy isn’t all about that formal logic, and those in the know think he’s going to retire soon. And this is a test that is somewhere between mostly impossible and impossible to apply. All you have to do is mouth the right words if you are a public official. But there’s worse principals than “you can’t use government to crap on people.”
So I’m going to sit on my silver cloud here, and say that we are probably in a better place for liberty than we were last week. Even if not by much.
Now, hold on, hear me out. In the Star Wars films, which I started enjoying at the prime age of 10 with the first one released, we are told that the Force is kind of an energy field that permeates the entire universe; it flows within us and between us, binding all living and nonliving matter together into a cohesive whole.
As to that last question, much is made in the films of the so-called Dark Side of the Force, which bad guys use to become very powerful. It’s fed by hate, lust, desire for power, all of the notions that are traditionally seen as being negative. If the Force truly exists, would such a negative aspect exist also – the Force soured, perhaps coagulated or stagnant, which seeps into human activities just as much as its counterpart? After all, it’s difficult to think of such a concept without also embracing its polar opposite: One can hardly have Yin without Yang, a cat without a fine rat, protons without electrons, etc. In our grasp for meaning, such a duality strikes us as being ‘fair,’ an explanation for why so much misery and corruption tend to exist in our perceived reality.
