In the dispute over the Arizona law, people who profess themselves to be dead set against using government to impose morality have cheered on exactly that. They see it as the only way to keep religious-conservative florists, bakers, and other businessmen from imposing their moral views on their customers. But this is true only if an insult, or a perceived insult, is an imposition. Only then can the old-fashioned pluralist answer to how to get along in the presence of differing moral views — keep the state out of it, and go to the shop down the street — be dismissed.
The regime of anti-discrimination law has worked a revolution in American liberalism, and American life. The reason the pluralist answer is no longer the default one is, of course, the struggle against Jim Crow. Hence its specter has appeared in the debate over the Arizona law. A few conservative defenders of the Arizona bill have argued that private actors should have the right to discriminate at will. But not many people are willing to follow that thought to the conclusion that the Civil Rights Act of 1964 has to go. Even the idea of a religious exemption from laws against racial discrimination makes most of us queasy, since we remember that some segregationists used religious justifications. (They lost in court.)
It is not impossible to devise an argument for leaving in place the rules against discrimination based on race while refusing to outlaw discrimination based on sexual orientation. While gays and lesbians have often been shamefully mistreated, they do not suffer under any oppression as terrible as slavery and segregation were, and the extraordinary measures that we have taken to destroy and prevent the reemergence of those latter evils are not called for.
If we thought about freedom and discrimination that way, we would start with a presumption in favor of tolerating private discrimination that we would overcome only for a very strong reason. The moral force of the attack on Jim Crow has instead created a strong tendency in our culture to think of anti-discrimination as something close to an absolute principle — a tendency with far-reaching implications that Thomas Powers pondered in a 2001 essay in The Public Interest.
He noted that tolerance, government neutrality, and depoliticization were once the guiding ideals of liberalism. The anti-discrimination regime, he argued, weakens these ideals or even replaces them with a moralized politics and politicized morality. It takes the reshaping of opinion, through the marginalization and stigmatization of views it considers bigoted, as one of its main goals. A same-sex couple with a psychology shaped by classical liberalism might have seen the baker who refused to make them a wedding cake as sadly misguided, or a jerk. The new regime encourages them to see him as a civil-rights violator.
This mindset, far from being confined to a left-wing fringe, is now the dominant one in America. Ari Fleischer, a White House press secretary in George W. Bush’s administration and still an influential figure among Republicans, reflected its influence when he said of the Arizona bill, “This bill instinctively struck people as a violation of individual liberty.” The idea that an individual’s liberty is violated when a florist refuses to make arrangements for his wedding can be conceived only in a culture in which the old, negative concept of liberty is no longer instinctive.
So Republicans have not been reliable champions of religious liberty. Mitt Romney, John McCain, and Jeff Flake — both of Arizona’s Republican senators and both of the last two Republican presidential nominees — urged Governor Brewer to veto the bill. Maybe they believed the media’s description of that bill, although one might expect Republicans who have run for president to have some sensitivity to bias. Even some of the legislators who voted for the bill counseled a veto, saying they had not understood what they had approved. (Perhaps they had not understood how controversial it would be.) Perhaps they thought that there was no need to approve controversial legislation until Arizona actually had a case like the one in New Mexico.
If Romney, McCain, and Flake truly believe that a baker should have to bake a cake for a same-sex wedding, even if he considers doing so participation in and endorsement of something he thinks wrong, then they have taken a decidedly odd position. All of them oppose legal recognition of same-sex marriage. They would be saying that it is all right for the government to discriminate against same-sex couples, by refusing to treat their unions as marital, while also forbidding private actors to do the same. They would be saying that the government can symbolically say something that it can also forbid private actors to symbolically say. If this is the way they think, then the private–public distinction really has collapsed.
For all that, the fight for religious liberty is not over. “GOP’s ‘religious liberty’ scam just died” was the headline on Beutler’s Salon article, and the claim has been widely echoed. But we do not have much evidence on whether the bill, or the idea of protecting religious dissenters even at the risk of discrimination, is unpopular. Same-sex marriage now appears to have the support of a small majority of the population. Surely some significant number of those supporters do not regard the opponents as the equivalent of Bull Connor.
Formal religious affiliation may be on the decline in the United States, but religion is not going away and neither are religious objections to same-sex marriage. We are not going to reach a point where there are as few traditional Christians as there are segregationists. (In that sense, the ultimate cultural ambition of the movement for same-sex marriage is bound to be frustrated.) Republicans may not want to fight this fight, but they will be forced to have it. Their supporters will not stand by idly while the expression of their beliefs — beliefs connected to some of their deepest values — is criminalized.
Social conservatives will be better prepared next time. The coverage of Arizona made them look like aggressors in a culture war; in time, cases will accumulate that make them seem more like victims. And the kind of media hysteria that sank the Arizona bill is hard to sustain for extended periods. Round One of this struggle went badly for the partisans of the older, sounder concept of liberty. Future rounds may show that it still has life in it.
— Ramesh Ponnuru is a senior editor at National Review, a columnist for Bloomberg View, and a visiting fellow at the American Enterprise Institute. A version of this article originally appeared in the March 24, 2014, issue of National Review.