As the think-pieces continue to rain down in the aftermath of my debate earlier this month with Sohrab Ahmari, it’s been discouraging to see the sheer number of conservative thinkers who seem to confuse the embrace of First Amendment jurisprudence with the embrace of “moral relativism” or to confine the principles of the American founding to something they call “liberal proceduralism,” a form of government somehow incompatible with the “politics of the common good.” For example, here’s Hadley Arkes arguing in the American Mind that I’m “retreating to moral relativism” by defending viewpoint neutral access to public facilities:
As I’ve argued sharply, some of our friends have sought to protect religious liberty by retreating to moral relativism. They are willing enough to credit religious sentiments as religious if they are “sincerely held.” They attach this importance to sincerity precisely because they don’t wish to reach any moral judgments on the legitimacy of what any religious group purports to teach. For that reason some of our friends, litigating these issues, refuse to rule out Satanists from the circle of believers they would protect.
When David French celebrated “viewpoint-neutral access to public facilities,” I took it as a signal that he had signed on to this relativism, which has been deepened now by the accession of two other friends, Justices Antonin Scalia and Neil Gorsuch. My reading of French then is that he would not have excluded Satanists from rooms at the University of Missouri.
I have in no way signed on to moral relativism. There’s no moral relativism anywhere to be found in my approach to American constitutional law, and he’s fundamentally wrong about the role of Justices Scalia and Gorsuch. It is (and was) not their task to protect or sanction overt viewpoint discrimination from the state — especially in the face of the text and history of the Constitution. Let’s break this down, step by step.
First, the protection of individual and associational freedoms — as defined by the Bill of Rights and the Civil War Amendments — is not an act of moral relativism. It’s a powerful moral affirmation of the equal dignity and worth of citizens before the state. In other words, the protection of liberty isn’t mere relativism or proceduralism, it is — in fact — a fundamental facet of the “politics of the common good.” The disestablishment of religion is not a neutral act. The protection of free exercise is not a neutral act. The protection of due process is not a neutral act. The declaration that persons in the United States enjoy “equal protection of the laws” is not a neutral act.
Second, when an individual uses that liberty to advance ideas we find repugnant, it is not “moral relativism” to argue that they nonetheless enjoy the same rights as anyone else to speak, associate, and proclaim their ideas. I can do two things at once — I can reach a moral judgment on the legitimacy of their ideas (and make my argument), and I can protect their freedom to disagree. That’s upholding two positive goods at once — the positive good of my own faith and the positive good of individual liberty.
Thus, the question isn’t whether we embrace “moral relativism,” but rather in what circumstances should we embrace the coercive power of the state to resolve a moral dispute. When the alleged harm in question is “exposure to repugnant ideas,” my answer to that question is going to be very close to “never.” I can condemn the repugnant idea. State officials can condemn the repugnant idea (so long as they don’t take punitive measures against its expression). The community can condemn the repugnant idea. Is that not enough?
I can’t help but think that there’s a first-principles question lurking at the heart of the modern debate over liberalism. Is liberty a blessing — a positive good — even if that liberty is exercised in ways that we might condemn? I say yes. I say that liberty is valuable even when I disagree with its exercise (so long as its exercise does not infringe on my own legally protected freedoms). I fear that some of my friends say no.
The state and its citizens possess complementary, non-delegable duties. It is the responsibility of the state (even as it pursues the common good through legislation and regulation) to pursue the common good by protecting individual and associational liberty as defined by the Constitution. It is the responsibility of citizens to exercise that individual and associational liberty in a manner that sustains and builds our constitutional republic. This is what John Adams was driving at when he wrote that our constitution was made for “moral and religious” people and is “wholly inadequate to the governance of any other.”
The history of the United States is a history of the ebb and flow of ideas. There has even been an ebb and flow in religious practice and faith. By historical standards, America isn’t as religious as it once was, but it’s still far more religious than it has been for much of its history. It remains among one of the most religious developed nations in the world, and its evangelical community may well be the single-most politically and economically powerful distinct religious community on the globe. That means that there remains within this country a truly immense amount of spiritual and moral capital to deal with the advance of despair and the challenge of secularism. It is not “moral relativism” to protect the very structures that permit the church to flourish and grant it wide access American hearts.