Jesse Merriam makes an attractive case for a more principled and thereby, he hopes, more successful approach for conservatives arguing religious liberty cases in the courts. He is concerned in particular with State of Washington v. Arlene’s Flowers, involving a florist who cited her Christian beliefs in refusing to make a floral arrangement for a same-sex wedding.
Both a lawyer and a political scientist at Loyola University in Baltimore, Merriam comes strongly equipped to do battle. He observes that as “[t]he conservative movement is essentially fighting and clawing its way through spaces that have become cordoned off, largely due to its own concessions,” its followers should ponder his concluding admonition:
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.
While retaining my sympathies with Merriam’s conclusions, and also trying to avert my eyes from the bloody remnants he conjures, I would urge a shift of focus and a change of emphasis in his approach (as well as in that of libertarians and conservatives to the court).
What does it mean to adhere to “generally applicable conservative principles, such as freedom of association and religious liberty”—which are after all not so clear? Instead, the Constitution and the laws under it must be taken as one and resting on natural law, the teaching of the Declaration of Independence. This was the prevalent understanding of our limited government Constitution prior to the rise of Progressivism. Merriam’s freedom of association argument seems stronger (especially in the context of the administrative state) than his religious liberty argument. But both need further elaboration.
A quick survey of highlights of American political history provides some leading examples of some of the difficulties of relying on conservative principles outside the context of the Declaration.
George Washington’s celebrated letter to the Hebrew Congregation at Newport supplies the evident link to the Declaration:
All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights….
In other words, political loyalty precedes the exercise of fundamental rights, including the freedom of religion. Preceding even that freedom— as well as the natural right of property—is agreement about the equality of the citizens who share in the social contract with one another. Thus, there can be no talk of some citizens enslaving others or establishing national religions. Consider Washington’s qualification in his letter to Catholics:
And may the members of your society in America, animated alone by the pure spirit of Christianity, and still conducting themselves as the faithful subjects of our free government, enjoy every temporal and spiritual felicity.
Catholic freedom might be endangered by a lack of patriotism, such as demands for an established church or an alliance with hostile powers.
Faith and family have produced political controversy at least since the mid-19th century, following the Republican Party’s condemnation of “those twin relics of barbarism—polygamy and slavery.” In his speech opposing the Dred Scott decision, Abraham Lincoln raised this question to his opponent Stephen Douglas:
If the people of Utah shall peacefully form a State Constitution tolerating polygamy, will the Democracy admit them into the Union? There is nothing in the United States Constitution or law against polygamy; and why is it not a part of the Judge’s “sacred right of self-government” for that people to have it, or rather to keep it, if they choose?
The Supreme Court and federal law did not recognize a religious liberty exception to anti-polygamy laws in the federal territory preceding Utah statehood.
Though today no politician or academic, let alone a jurist, would speak of “barbarism” any more than she invoke the Declaration’s “merciless Indian savages…,” the political consensus on common morality clearly excluded some religious practices.
Finally, Alexis de Tocqueville’s Democracy in America celebrates the moral and political significance of both freedom of association and freedom of religion. But he also emphasizes the great danger the freedom of association poses and urges it only in nations that respect freedom. As for freedom of religion, Tocqueville notes how Americans confuse it with political freedom, as they so cherish both.
But in fact Americans thought clearly about these issues.
Political agreement necessarily precedes fundamental freedoms and even natural rights. Should Catholics (let alone Muslims) have freedom of religion? What are the limits to any natural right—does freedom of property include the right to own slaves? How far may the practices of a freely exercised religion go?
Harry Jaffa in A New Birth of Freedom observed that the Civil War was “as much a war between differing versions of Christianity (or about the teaching of the Bible) as it was about slavery and the Constitution.” Few relish raising such divisive issues, with their concomitant anger and even vitriol, not to mention violence.
These are not mere historical controversies, either. Do minority religions get a legal preference, exempting their adherents from ordinary citizen duties, ranging from military service to school attendance? Are Sharia law, animal sacrifice, and allegiance to foreign governments among protected religious activities? What about the rights of Japanese Shinto priests during World War II, many of whom were interned? Here we must apply Merriam’s opposition to the administrative state: its dangerous power to tax and regulate constitutes sufficient grounds for objecting to the reasoning of the Bob Jones University case, instead of asserting a religious liberty right.
Of course we cannot expect a mere incantation of “natural law” to provide clarity in properly deciding these questions. Nonetheless, the Declaration’s understanding of natural law is the only sensible starting point for understanding “generally applicable conservative principles, such as freedom of association and religious liberty.” Perhaps natural law scholar Neil Gorsuch will offer illumination on the Supreme Court.