Critics Fail to Grasp Personal-Liberty Rulings


In recent years, American progressives have undertaken, under the banner of “saving democracy,” a full-scale attack on the conservative justices who they say have now “packed” the Supreme Court. It is one thing, of course, to make the denunciation, but quite another to quote chapter and verse of the supposedly unsound decisions that support this charge. One recent notable effort to do so is found in a recent piece in the New Yorker by a Pulitzer Prize–winning investigative reporter, David D. Kirkpatrick, that identifies “The Next Targets for the Group that Overturned Roe.” He then focuses on the work of the faith-based Alliance Defending Freedom (ADF), whose CEO and general counsel, Kristen Waggoner, has compiled an enviable record of victories, including some fifteen in the United States Supreme Court, on a wide range of cases on matters of religious liberty.

Fitzpatrick offers extensive evidence on the growth in size, resources, and influence of the ADF (which with I have from time to time worked). But my concern here is not with the politics and maneuvering of the parties, nor with defending every statement or position the ADF has made in the thirty years since its founding, but with the intellectual and legal positions against which Fitzpatrick rails. At points I disagree with the ADF, but overall there is a profound overlap between the positions taken by traditional classical liberals—a movement that has no distinctive religious orientation­—and those of the ADF.

One key area is freedom of speech, where any attack on the ADF cannot take place at the highest level of abstraction, for, as Kirkpatrick notes, on many key issues the ADF sounds just like the ACLU—at least the ACLU of past years—in defending the bedrock principle of the freedom, which is “the right to resist government attempts to coerce a citizen into publicly denying her deepest convictions.” Kirkpatrick then gently disparages the “rights talk” in reference to a well-regarded book by that name, Harvard emerita professor Mary Ann Glendon.

But how does this play out? One recent ADF victory was in the much-mooted Supreme Court decision in 303 Creative LLC v. Elenis (2023), where the Colorado Anti-Discrimination Act allowed the state’s Civil Rights Commission to force wedding-website designer Lorie Smith to display on her site notices and announcements of same-sex marriages to which she was opposed for religious reasons. Her objection was solely to the expressive content of her work, for it did not matter to her whether the request was made by a gay or a straight person. It extended only to sites that contained objectional content, and she was happy to work with any person of any sexual orientation on any project that did not cross her religious boundaries. That measured response was her effort to both adhere to her religious beliefs and to retain her customers, all of whom are entitled under Colorado law to refuse to deal with her because of the offense they take toward her religious beliefs.

The procedural posture of the case was somewhat unusual because Smith sought protection from the court before she opened her website, since she feared, based on what had happened in the earlier Colorado decision Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission (2018) that she would be subject to litigation before the Colorado Commission, which could lead to massive expenses and fines, in addition to nonstop harassment and abuse. Note that the Colorado law did not require any gay baker to make a wedding cake that expressed opposition to same-sex marriage. In this clash of ideals, claims of human dignity—though essential in cases of abuse or degrading treatment—are of no help because each side can claim its dignitary interest is imperiled.

Against this background, exactly how does Kirkpatrick deal with the merits of the case?  First, he writes: “ADF’s liberal critics invoke Orwell, too. They say that the group’s ‘rights talk’ is doublespeak for bigotry, patriarchy, and discrimination. Erwin Chemerinsky, the dean of the law school at UC-Berkeley, told me that ADF ‘puts freedom to discriminate over freedom from discrimination.’ ” But Chemerinsky’s objection is pure sophistry because it treats it as self-evident that the latter freedom is more important than the former.

To break the intellectual logjam, start with the position that both merchants and customers in competitive markets are allowed to pick with whom to deal, while those few merchants who work for common carriers and public utilities must, owing to their monopoly position, take all customers on fair, reasonable, and nondiscriminatory terms. (No one has ever concocted a religious objection against letting people sit on airplanes or against paying the utility bill. The problem takes care of itself.)

At this point, think of the relative hardships in a competitive market of the two forms of discrimination. The customers who are turned down by either Masterpiece or 303 Creative have literally hundreds of options to get the same services from people eager to serve them. On the other side, Jack Phillips of Masterpiece or Lorie Smith of 303 Creative either has to go out of business or violate his or her conscience. This is not a hard case in which to balance the hardships. It is progressives like Kirkpatrick and Chemerinsky who are imposing an Orwellian vision on small merchants whom, at an earlier stage in the proceedings, the Tenth Circuit preposterously found had “unique” goods that conferred on them something “similar to a monopoly.”

Thereafter, Kirkpatrick presses on Waggoner with what he regards as the killer comparison: race. Justice Ketanji Brown Jackson asked Waggoner whether a photographer could turn away black children who wanted to take a picture with Santa. At this point Waggoner hesitated, but she need not have done so. She has at least two lines of defense. The first is to note, as I have long argued, that private decisions on whom to deal with should be at will with all people regardless of their race, as the same logic about alternative sources applies here as to websites: black Santas can refuse to entertain white children. Show some lack of access to the market for Santa pictures and we might have to ask why that market never emerged. But with free entry, there are no risks on nonservice. Alternatively, someone could distinguish the case on the grounds that liberty of religious conscience and freedom from compelled expression against those sincerely held beliefs should trump any application of the antidiscrimination law, so that the state should stay its hand until that eventuality arose.

At this point, Kirkpatrick pushes harder on the race analysis by pointing to Loving v. Virginia, where the court in a much-celebrated decision struck down a ban on interracial marriage because the ban was “part of a whole system of laws that were designed to subjugate a whole class of people, out of group bigotry.” That decision is 100 percent correct, but wholly inapplicable here. 303 Creative was trying to run its own website. It was not engaged in any effort to ban the websites of groups championing gay marriage. And the private action in 303 Creative is worlds apart from the government marriage ban in Loving, which was struck under the equal-protection clause or the (substantive) due process clause.

The two theories—equality and liberty—are radically disjoint. Equal protection is a device that bars discrimination but does not dictate any substantive outcome. A statute therefore that forbade everyone to marry could not be attacked on equal-protection grounds. Nor could the anti-miscegenation law be attacked as discriminatory if it applied with equal force to both parties to the relationship. In contrast, argument from equal liberty has much stronger foundation, because the right to marry, as a form of freedom of association, is a substantive claim. Under this view, the outrage of the Virginia statute is, if anything, doubled because it applies to more people than a statute that singled out individuals from one race only. The weakness of Loving is that it does not flesh out this argument in any detail, largely I think because the Warren Court was so committed to the general view that “liberty of contract” in economic affairs amounted to an invocation of the dreaded Supreme Court decision in Lochner v. New York (1905), which struck down a ten-hour workday and sixty-hour workweek limitation on certain classes of bakers.

There is no time to do the careful analysis in the cases where Kirkpatrick treats it as self-evident that the liberal side is the voice of reason and compassion. Whether the conversation turns to Dobbs v. Jackson Women’s Health Organization (2022), dealing with the substantive due-process right to an abortion; Lemon v. Kurtzman (1971), dealing with the conflicting commands of the establishment and free-exercise clauses to avoid entanglement between church and state; Burwell v. Hobby Lobby (2014), dealing with Health and Human Services’ contraceptive mandate for health care coverage; or Kennedy v. Bremerton School District (2020), dealing with a football coach’s post-game prayers on the fifty-yard line, Kirkpatrick writes as if a brief mention of any complex case is sufficient proof of the corruption of the conservative Supreme Court. But whatever critics think of Kristin Waggoner’s efforts, she is far ahead of the New Yorker in its complacent drive to undermine serious legal and philosophical discourse.

© 2023 by the Board of Trustees of Leland Stanford Junior University.

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  1. Percival Thatcher

    Richard Epstein:

    Erwin Chemerinsky, the dean of the law school at UC-Berkeley, told me that ADF ‘puts freedom to discriminate over freedom from discrimination.’ ” But Chemerinsky’s objection is pure sophistry because it treats it as self-evident that the latter freedom is more important than the former.


    Sophistry? From the dean of a law school? Can it be?

    • #1
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