Losing is Contagious: Inconsistent Conservatism Leads to Crushing Consistency on Courts

By | 2017-06-02T18:30:05+00:00 March 14, 2017|
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The U.S. Supreme Court recently avoided deciding a closely followed transgender-rights lawsuit over public-school bathrooms, instead sending the case back to the lower court. But another sexual-orientation lawsuit, State of Washington v. Arlene’s Flowers, may soon come before the high court.

This case arose after Arlene’s Flowers, a flower shop owned by Barronelle Stutzman, refused to make a floral arrangement for a same-sex wedding. Stutzman is a devout Christian who was willing to make such arrangements for same-sex couples but drew the line at weddings. Stutzman’s policy led state of Washington officials to team up with the ACLU and sue Arlene’s Flowers for violating the state’s anti-discrimination law. After the lower court found Arlene’s Flowers liable, Stutzman appealed to the Washington State Supreme Court, where she argued that by penalizing her for not performing conduct prohibited by her religious beliefs, the state had violated federal and state guarantees of religious liberty. The Washington State Supreme Court denied her religious-liberty claims, meaning her only recourse now is with the U.S. Supreme Court.

The Washington State Supreme Court decision infuriated conservatives like National Review’s David French, who, in a powerful jeremiad, wrote: “If you care about the Bill of Rights, the rights of conscience, or even the English language, there’s a chance that this morning you felt a disturbance in the Force—as if the Founders cried out in rage and were suddenly silenced.”

Of all the ways in which our Constitution has been ignored and altered over the past 225 years, this apparently is the one that anguished the Founders (or at least French) the most. French, an experienced constitutional lawyer, is surely aware that the most difficult constitutional cases involve clashing values. And this is certainly one such case, pitting non-discrimination law against religious-liberty guarantees.

My interest here is not so much to weigh in on the legal merits of this clash—which I am reluctant to do as a legal theorist and observer of legal movements—but to situate the case more broadly within one of my favorite topics of study: why, as a matter of argumentative strategy, legal conservatism continues to lose at an astounding rate.

The Margold Strategy

Understanding this pattern requires going back to 1930, when the NAACP received $100,000 from the left-wing American Fund for Public Service—commonly known as the Garland Fund—to create a litigation strategy for the constitutional eradication of racial segregation. On the advice of soon-to-be Supreme Court Justice Felix Frankfurter, who at the time was a Harvard law professor and a litigation adviser to the NAACP, the civil rights group commissioned Nathan Margold, one of Frankfurter’s favorite former students and a lecturer at Harvard Law, to draft a report.

Within a year, Margold completed a 218-page report, outlining a brilliant and incredibly successful legal strategy. Thurgood Marshall, one of the NAACP’s most prominent lawyers before his appointment to the Supreme Court in 1967, read the report over and over, processing its central message: NAACP lawyers should not attack the core of segregation directly, but start from its periphery, eating away at the institution until there was nothing left to retain. As Marshall later recounted, “[The report] stayed with me. The South would go broke paying for truly equal, dual systems.”

And so the NAACP lawyers began their march through the institutions, first demonstrating in a series of cases in the 1940s that due to the individualized nature of graduate-school education, segregation of graduate programs could never be equal, before moving on to K-12 public schools, in Brown v. Board of Education (1954), and then interracial marriage, in Loving v. Virginia (1967).

The brilliance of the Margold strategy was that it diverted attention away from the NAACP’s ultimate goal. While the South responded from a defensive posture and focused on how to create equally resourced African-American institutions, the NAACP was on the offensive in pursuing the wholesale transformation of interpersonal relations.

Anti-Discrimination Law and Religious Liberty

There were repeated religious objections to these government interventions, generally on the ground that it was part of natural law and Christian doctrine for there to be separate and distinct spheres for the different races, but the Supreme Court consistently rejected any claims that religious liberty granted private actors the right to ignore the increasingly hefty demands of anti-discrimination law.

One of the most critical steps in stamping out religious dissent on this issue was Bob Jones University v. U.S. (1983), where the Supreme Court held that the IRS had the constitutional authority to penalize, through a withdrawn tax exemption, educational institutions that prohibited interracial dating, even if for religious reasons.

The Bob Jones case stirred up significant controversy (the Reagan administration refused to defend the IRS policy, which led Democrats to block William Bradford Reynolds’s promotion to Associate Attorney General), but the Supreme Court was not nearly as divided, holding, 8-1 (with then-Justice William Rehnquist dissenting) that the federal government’s interest in eradicating private racial discrimination was so compelling that it could override any religious objections under the First Amendment. Unsurprisingly,  once it was forced to pay millions of dollars in taxes, Bob Jones University magically had a religious awakening on race relations.

Just as Bob Jones University changed its beliefs, so did the American public. In 1958, for example, only 4 percent of Americans approved of interracial marriage. By 1983, when the Bob Jones case was decided, that number had grown to a sizable minority of 43 percent. And over the next 30 years, that percentage doubled, commanding 87 percent in 2013. In other words, what nearly almost all Americans condemned in 1958, they celebrated just 50 years later.

It is of course likely that public opinion would have changed to some extent without these Supreme Court decisions, but it is almost certain that the high court, as the most respected moral authority in American culture, was the principal driving force behind these changes. The Supreme Court’s ideas have consequences on how Americans think about the world.

Margold and Gay Rights

The Margold strategy has come to define the progressive legal movement. Following this strategy, gay-rights advocates began their litigation at the periphery of the cause—first pushing for the right to engage in homosexual relations in the privacy of the home, a right that most libertarian- and progressive-minded Americans supported, leading the Supreme Court to establish such a constitutional right under the amorphous “right to privacy” in Lawrence v. Texas (2003). Justice Scalia, in dissent, warned that this case was really about marriage and social approval of homosexuality, but the majority dismissed his warnings as that of a curmudgeon outraged by seeing too much “Will and Grace” on television. (This was 2003, after all.)

The next stop on this train was, as Justice Scalia predicted, gay marriage. The movement began in the states, with gay-rights advocates hoping that enough state court victories under state constitutions would induce the U.S. Supreme Court to find the same right in the U.S. Constitution, which is exactly what the high court ended up doing in Obergefell v. Hodges (2015). In just a dozen years, sexual relationships that had been illegal in several states had become not only constitutionally protected but also legally sacralized through marriage.

Perhaps even more strikingly, public opinion on the matter changed much more quickly than it did on interracial marriage. Whereas in 2001 only 35 percent of Americans supported same-sex marriage, that number grew to 55 percent over the next 15 years. Again, it was clear that the Supreme Court was not simply following, but also leading, social change.

After Obergefell, the only thing left for the gay-rights movement is what the NAACP encountered in the Bob Jones case: to stamp out private dissenters, particularly those motivated by religious views. This is the core of the apple. Once you can harness the power of government to punish dissent, the game is essentially over.

This is vividly illustrated in the Arlene’s Flowers case. Washington State combined resources with the well-funded and brilliantly staffed ACLU to wage war on Barronelle Stutzman, simply because she was unwilling to participate in a same-sex wedding—a fascinating testament to the transformation of American power relations. Indeed, the ACLU, an organization founded (mostly by Garland funding in the 1920s) to protect political dissidents and individual liberties from majoritarian intrusion, now often operates in tandem with government power in penalizing dissidents.

David French may be right that “the Founders cried out in rage” the day of the Arlene’s Flowers decision. But it is stunningly short-sighted to the point of blindness for French to focus on this one instance in isolation. Somehow the conservative movement fails to realize that each loss means there is less for conservatism to do—there is less to conserve, less tradition to protect, less distance between the skin of the apple and its core.

Each loss means that the next fight will be that much harder to win.

The Losing Contagion

In a previous piece, I drew from a famous Justice Scalia quote on fighting under Marquess of Queensberry rules—you can’t have meaningful political discourse when competing sides play by different rules. You also can’t fight each battle as though it’s your first. Conservatives tend to think that each political and legal battle will be fought anew, with fresh forces and armaments. It’s a new day on the shining city upon a hill!

But it isn’t. The law is a system, comparable to a living organism, and with each loss, the vessels constrict, the arteries harden, leaving less and less space for the blood to travel. The conservative movement is essentially fighting and clawing its way through spaces that have become cordoned off, largely due to its own concessions.

Consider again the course of gay-rights litigation. In each round of cases, the previous loss became assimilated into the tenets of legal conservatism, robbing the next argument of its coherence, because legal principles make sense only when situated within their proper frameworks.

For this reason, legal conservatives who supported the constitutional right to engage in same-sex relations, but not same-sex marriage, were forced into a corner—they had to make odd arguments about how marriage is only about procreation, which does not fit with how many people think about marriage, particularly the elderly, the infertile, and those who simply don’t want children.

Likewise, legal conservatives who celebrated same-sex marriage, but argued that religious objectors should not be compelled to participate in such marital ceremonies, also put themselves in a corner, privileging religious over secular objections, which runs against the First Amendment’s Establishment Clause.

And legal conservatives who believe the federal government should impose anti-discrimination norms on universities and public accommodations, regardless of religiosity, unless it involves gay rights, end up making strained arguments that reek of bigotry and hang-ups about homosexuality.

See, for example, how David French wholeheartedly supports the Bob Jones decision, on the ground that the federal government has a compelling interest in “eradicat[ing] the vestiges of our nation’s greatest moral error and its greatest physical crisis,” but French somehow thinks that it is the Arlene’s Flowers decision that would lead the Founders to cry out in rage.

The irony of all of this is even though conservatives like French assiduously try to distance themselves from bigotry through endless virtue-signaling against President Trump and his supporters, they end up in the process seeming more bigoted than anyone else. Instead of adhering to generally applicable conservative principles, such as freedom of association and religious liberty, they marshal all their concern for tradition and liberty against gay rights—as if the Founders had some obsessive preoccupation with regulating homosexuality.

So long as conservatives reason in this way, picking and choosing which liberties to preserve based on what the administrative state permits them to say at the given moment, the future of the conservative movement will go the same way as all of the traditions the movement has at one time defended—extirpated and eliminated, excised like a tumor from the organism of law, for having been on the wrong side of history.

About the Author:

Jesse Merriam
Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.
  • The problem, of course, is that the ‘reformers’ have taken to the courts to achieve their ends, rather than the Constitutional route of relying on the Legislatures. Of course it is arguable—though by no means certain—that absent the Courts, it might have taken another century to abolish Jim Crowe and segregation. On the other hand, we might not now be fighting rear-guard actions against the State enforcing all manner of demands from self-proclaimed ‘victims’ of ‘discrimination’.

    What’s the solution? Short of a Constitutional Amendment limiting the purview of the judiciary, only more conservative judges will help.

    /Mr Lynn

    • ek ErilaR

      You also have to consider that but for the the decisions of the Supreme Court in the Civil Rights Cases of 1883 and Plessy v. Ferguson (1897), segregation would not have existed after 1868.

      You also have to consider that a constitutional amendment is not needed to limit the jurisdiction of the federal courts. The Supreme Court’s original jurisdiction is very limited. Beyond that, Congress can establish or disestablish inferior federal courts at will and Congress can limit the jurisdiction of all federal courts, except for the narrow class of cases that the Constitution identifies as being within the Supreme Court’s original jurisdiction.

      • Good point that the Congress has the Constitutional power (and duty) to define and manage the inferior Federal courts. That’s certainly an avenue to be pursued, though with our currently divided Congress any agreement on restrictions would be problematic.

        As for the Supreme Court, its original limited jurisdiction is a horse that has long left the barn. Appointing Originalist justices will help rein in that horse, though. Getting him back in the barn will be harder.

        /Mr Lynn

  • hosspuller

    “…The law is a system, comparable to a living organism,…” is the most enlightening statement of principle of lawfare, I’ve encountered. America: Beware.

    • ek ErilaR

      Also remember that no loss is final and no loss permanently changes the Constitution. All Congress needs to do is to forbid the Supreme Court from using the legal doctrine of “stare decisis” when addressing constitutional issues.

  • TruckinMack

    Andrew Breitbart famously said, “Politics is downstream from Culture.” So is the law. More importantly, so are our classrooms. The more Liberal the culture, the more Liberal the classroom. Our children are subject to K-12 arch Liberal educators. Ditto at our universities. Ditto at our law schools. Our lawyers graduate partial to Liberalism. Our lawyers become law clerks who are partial to Liberalism. lawyers become judges who are partial to Liberalism.

    If we want to kill Liberalism, it does not start in Congress or in our Courts. It starts in our culture. It starts in our classrooms, even as young as Kindergarten. If we want to save our future, we must take back our culture and we must save our classrooms today.

  • TioDon

    The quoted percentage of people that say they approve of an inter-racial marriage is insanely high. The people that “think” inter-racial marriage is insane and unnatural, is closer to the number. No one will say they disapprove of inter-racial marriage…..they, however, do think it’s wrong.

    • Helix adastra

      The trouble is there is way too much thinking but not saying as is said to have existed in Soviet Russia. A workmates told me during a tale of how her child (who dindu nuffin) is in trouble for bullying at school for calling another child fat and yet the word “fat” is banned in her house. She of course is fat herself. The more we are lawfared away from reality and willingly censor ourselves over words, the sicker we must become.

  • French, along with the rest of the vanguard of conservative intellectual NeverTrumpers, are so used to failure the only thing they want to conserve is losing!

    • Helix adastra

      Well, they have boxed themselves in to a limited playpen, apparently quite happy to have playpen sized ideological fences around themselves.

  • Thesecondsailor

    A very perceptive, and depressing, article. Another metaphor for the law’s being a “system” that is like an “organic being” is from the Eighth Amendment context, that there is a “ratchet effect” taking the law always to the Left. To a significant degree, the problem surely is the now-malign effects of plain old stare decisis. And despite its appeal, the likelihood that Congress will ever act under the exceptions clause of article III to reverse what seems to be inexorable momentum seems very low — there are not enough members of Congress, because there are not enough members of the public, who care enough. The author seems to think the courts lead the culture, and to an extent they surely do, which can and should be combatted, but it’s very hard to see all this happening if the culture, and ostensible religious conviction in particular, had not been ripe for it.

  • Mark Pulliam

    Like boiling a frog: you place the frog in a pan at room temperature, and gradually turn up the heat. By the time the frog realizes the water is boiling, he’s cooked. When will the American public realize it is the frog being boiled in the Left’s pot, on the stove of the U.S. Supreme Court? Or is it already too late?

  • mj01323

    I am anxious to hear from the author why all the cases he has mentioned is also a diatribe against Christianity. I never hear about those of the Muslim faith ever being made to do what they do not want to do. We have seen over the years the way the men treat women (in many but not all cases), the desire for our nation to adopt Sharia law as superseding US law. We carve out rights to allow those of certain other religions to dress as they wish, wear their hair as they wish (on head and face, etc,) while at work, but there is never an allowance made against Christians, never ever., by those on the progressive left. If some of us believe homosexuality is wrong or perverse, I don’t see how one of us can be compelled to change our views or beliefs. If I believe that the author or a reader of this article has a different view of God and what is necessary for salvation, I cannot be compelled by the ACLU, the US government, the local constitutional law expert, or the justices on the US Supreme Court to change my view. If I am a Muslim, and I tell you that you cannot bring pork into a mosque, will the author stand up and join the ACLU in telling me I must allow someone to bring pork into the mosque? We all know that will never happen. The left respects the religion of the Muslims largely because they hate Jews and they hate Christians. There is no one on the left who would ever challenge any aspect of Islam, and will never stand up to Muslim leaders. So, as the author explained, the battle is always against the conservative Christianity.

  • Obtruder

    “…they marshal all their concern for tradition and liberty against gay
    rights—as if the Founders had some obsessive preoccupation with
    regulating homosexuality.”

    The last time I checked, my now outdated version of Barron’s Law Dictionary still defines marriage as between a man and a woman.

    And while the founders may not have been concerned about regulating Homosexuality, it is more likely the case because marriage licenses weren’t being issued to any couple before the 1840’s.
    And that was inspired by spurious racial motives in keeping marriage segregated.

    Perhaps the founders should have marshaled all of their concerns towards the religious community as that is precisely where you would have exclusively found the subject of marriage being instituted in an age old traditional fashion.

  • Pingback: Political Loyalty Precedes Fundamental Rights: A Reply to Jesse Merriam - American Greatness()

  • QET

    the high court, as the most respected moral authority in American culture

    If this is true, then this is surely the cause, in all 4 of Aristotle’s senses, of the conservative predicament. Secular progressives have never been able to go all the way to the logical endpoint of their formal belief system (like Nietzsche did and paid the ultimate price for it): having rejected all religion and all other transcendental philosophies as authoritative sources of morality, they still existentially need an authoritative source. So they adopted the Supreme Court as that source and have spent a century bending it to their own will and endowing it with transcendental qualities. The Court in Brown acted like sages rather than judges, like clerics communicating a revealed truth. There was no jurisprudential need to proclaim an Eternal Verity (“separate is inherently unequal”). Though formally confined in the opinion to the field of education, it was entirely predictable that it would detach from its context and float as an 11th Commandment in the moral atmosphere of the nation, so it is certain that was the purpose in uttering it. And fortunately (?) we now live in an era when the apostles of the new Truth no longer feel the need to dissimulate nor even to impose their dogmas by subtle exegesis of the Scripture (Constitution). Witness Tushnet and his Doctrine of Original Error.

    • Marshall Gill

      “the high court, as the most respected moral authority in American culture”

      Clearly Jesse and I live on different planets. John Roberts made up a word never spoken in the English language to pass a clearly unconstitutional law. SCOTUS is the exact opposite of this imbecilic claim.

  • bdavi52

    We used to know good from bad, right from wrong, sacred from sinful.
    Our values, solid and steadfast, were once so deeply anchored in our culture that they were reflected always in everything we did — fundamental to our Constitution and our Justice System and part of every social/political interaction. No more.

    We’ve gone viral. And every passing Cultural Meme just the newest iteration of yesterday’s cultural pandemic: sweeping social media, blessed on the nightly news, no need to think we can simply echo & repeat. What’s right is always Today’s New Cool.

    Thus, the overnight shift on gay marriage, as noted by Merriam: “Perhaps even more strikingly, public opinion on the matter changed much more quickly than it did on interracial marriage. Whereas in 2001 only 35 percent of Americans supported same-sex marriage, that number grew to 55 percent over the next 15 years. Again, it was clear that the Supreme Court was not simply following, but also leading, social change.”

    it is painfully clear. If we cut loose all anchors, we drift. And if we drift, the slightest breeze sends us tumbling. Today, in this relativist, here & now, we tumble strongly Progressive Left.

    With no anchor the argument is simple.
    If believing marriage is the sacred union of man & woman makes one a bigot & uncool — and, since everyone wishes to be bigot-free & exceedingly cool — it’s obvious that same-sex-marriage must therefore be super cool, & super righteous. How could it be otherwise (who wants to be accused of being “hung-up” on homosexuality?!)

    If, as Justice Kennedy noted, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”, then anyone’s conception of meaning is equally valid, and any form of sexual expression equally true & all of it normal. If there is no heaven, no hell, then everything is permitted. And obviously anyone reluctant to bake celebratory, gay-marriage cakes has failed utterly to catch the right-thinking wave; time for the State to intervene.

    Obviously, in such a wilderness, to seek to “conserve” anything is futile since everything is relative, and everything ungrounded. The question of course: if fighting these rear-guard actions is pointless, how do we hold back this tidal surge?

  • Marshall Gill

    The reason that conservatism continues to lose in the courts are many. One of the biggest, as I am sure the assistant professor knows, is the absolute loss of even an attempt at a pretense of “law”. The power of the government to pick winners and losers, and vastly supported by the University system, has few opponents. Ostensible conservatives or libertarians, like Merriam here, are in favor of and gain support through the expansion of the State.

    Jesse is nothing more than a deep State poser. His pockets are lined by government and he won’t hesitate to tell you to shut up and get along.

  • ADM64

    This article makes good points. The basic problem with “conservatism” is that it is passive and thus reactive. So, the moment the left moves the system further left, the conservatives quickly decide no change can be affected and thus accept as fixed that particular point. This is also apparent in the judicial deference argument. The doctrine that the courts should defer to the legislature (or regulatory agencies) is pure progressive legal theory, not strict construction nor actual constitutionalism. Scalia, Rehnquist and Bork all missed this point. At some point, principles matter.

    Many conservatives accept the principle of the non-discrimination laws even though they violate actual individual rights of association, contract and conscience, and of course religious liberty. The segregationist arguments in favor of Jim Crow were also populist defenses of the violations of all of those things and segregation could have been fought successfully on those grounds, but it wasn’t. The inherently non-ideological i.e. unintegrated nature of conservative thought means that they don’t see the relationship between principles and outcomes. They also don’t see that decades of defending any aspect of our system on the basis of tradition, religion or Burke (who has nothing to teach the Founders) is futile.