The Corner

The Arizona Debacle and the Failure of Hypothetical Messaging

For much of my life as a lawyer, a writer, and an advocate for Christian and conservative causes I’ve made a terrible mistake. I can remember exactly when I started down the wrong path. It was the year 2000, and Tufts University had just kicked a Christian student group off campus because the group (*gasp*) required its leaders to agree with the organization’s statement of belief. I represented the group, and when trying to explain why the group’s alleged act of “discrimination” was in fact an act of total common sense, I would say things like, “Would a gay student group want Christian fundamentalist leaders? Would a Muslim student group want Jewish leadership?”

My point was pretty simple: We need to create rules that safeguard certain neutral, generally applicable principles that allow for a maximum of liberty and a diversity of expression, and that suppressing a disfavored group’s freedom today could lead to unintended consequences tomorrow.

I went on to present hypotheticals like this again and again, convinced I was making headway largely because everyone who already agreed with me found them convincing. I now understand that this messaging failed. Utterly and completely. Dozens of universities followed Tufts’ example, and religious free association is precarious, at best, on campus after campus. 

The lightbulb finally came on while reading Jonah Goldberg’s excellent piece on the Arizona religious-freedom debacle. As an aside he writes, “Must a gay baker make a cake for the hateful idiots of the Westboro Baptist Church? Must he write ‘God hates fags!’ in the icing?”

His hypothetical gets the issues right, and yet it — to borrow legal terminology — presumes facts not in evidence. It wrongly presumes our ideological opponents have the slightest interest in neutral, generally applicable laws. In their world, there is no way that a gay baker would be forced to bake the cake he didn’t like because the very act of forcing the gay baker to violate his conscience would be an act of discrimination against the gay baker.

Similarly, there is no chance that a Muslim student group would be forced to admit a hostile student because that would constitute discrimination against the Muslim student group. (In fact, when I once tried to persuade a Muslim leader to join with Christian groups in protecting religious liberty, he looked at me and said, “The college will never touch us. That would be discrimination.”)

In other words, the Leftist hears the hypothetical, stares at you blankly, and thinks, “No way will I allow that kind of injustice.”

And he’s largely right. So long as the Left dominates pop culture, the academy, and the key levers of government, these hypotheticals are as likely as the zombie apocalypse. The Left simply will not allow its favored identity groups to be victimized — regardless of what the law says, and if the law fails then perhaps “physical action” will suffice.

There are, of course, some on the left who occasionally wake up to the dangers of bad law (for example, the ACLU has strongly opposed new, speech-restrictive IRS regulations), and others who defend conservative speech out of a true love of liberty, but within the wider Leftist culture, to borrow George Will’s excellent recent statement, the liberal agenda can be summed up in four words: “being good to liberals.”

I would say it’s time for new messaging, but there’s no magic bullet. There exist philosophical differences about law and society that no talking point — no matter how clever — can ever touch. In the Arizona battle, the hypotheticals were strong, but they never had a chance.

They never do.


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