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

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.

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About 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.