It may be that, in their reckoning, the wave of political intolerance has risen so high that they think there is a better chance of securing freedom by drawing a wider line to protect all manner of political speech and religious conviction, no matter how zany. With this sense of things, they may be willing to protect some aggressive religious racists and Satanists if that is the cost of protecting legitimate religion and religious institutions.
But as the late Stan Evans used to say, “the problem with pragmatism is that it doesn’t work.” If we declare now that there are no grounds for discriminating between legitimate and illegitimate religions based on what they teach— no grounds on which to show that religion counts as a good, better than many other things of human interest— once those moral claims are swept away what is it that holds the party of the left back? What restrains the left when it picks up where the Obama administration left off, when it imposes on Christian hospitals, charities, and small schools the obligations to cover abortion in their medical plans, to allow abortions to be performed in their hospitals, and to extend benefits to those seeking sex-altering medical procedures?
Justices Alito and Gorsuch, consummate lawyers and judges worldly in politics, may be tilting to one side or another, trying to preserve political and religious freedom in a darkening time. Their stance may prove faintly plausible for getting through the day, but my plea is that an untenable argument will be the source of even graver troubles to come. And it will not serve the ends of those pilots trying to steer safely through the current troubles at hand.
You’ll need to subscribe to read the whole thing, but the article itself is worth the price of the annual subscription. Arkes helps us ask a critical question about our law, and the substantive goods it exists to protect and serve. When our laws become utterly unhinged from truth and justice, when our justices are unwilling to make distinctions between good and evil, we are in serious trouble. Our Twitter commentariat regularly fails to make distinctions “between calling names and making arguments” but our jurists better not. Religion and speech set the human person apart from all other animals — the uprightness of our nature directs us upwards to the highest freedom, the freedom for the highest truths and the supreme good. We cannot be indifferent to what is right and just in the pursuit of religious liberty. Arkes gives us fair warning that to so unhinge our laws will not protect the Christian baker, or anyone else, for long.
