From the land of “the culture war is interested in you,” here’s this new report from Eugene Volokh at the Washington Post:

From the official Massachusetts Commission Against Discrimination’s Gender Identity Guidance, just released last week:

Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.

Now, churches hold events “open to the general public” all the time — it’s often how they seek new converts. And even church “secular events,” which I take it means events that don’t involve overt worship, are generally viewed by the church as part of its ministry, and certainly as a means of the church modeling what it believes to be religiously sound behavior.

You should read the whole thing for context, but the upshot is that there are serious conversations happening right now in the state of Massachusetts that could lead to legal action against churches that do not use a person’s preferred pronouns. Legal action may even be taken against churches whose congregants engage in such behavior, depending on how laws are written and courts rule.

For some conservatives, it would be easy enough to go straight to “we told you so” after reading that report. If in the near future Rod Dreher or Doug Wilson climb up to their rooftops to start crowing, one could hardly blame them. But the more important point to be made here is what this suggests about that fraught topic of pluralism.

One of the moves that many evangelicals are making today is toward an argument for tolerance via the desirability of pluralism as a value in our public square. Russell Moore makes this argument in some shape or fashion every time he talks about religious liberty. Likewise Alan Noble and Michael Wear’s promising new project, Public Faith, explicitly frames pluralism as a social good to be protected. Andrew Walker, meanwhile, seems to have similar ideas, as he calls on supposedly more broad-minded liberals to rein in their more zealous allies.

The difficulty here is that popular-level western culture, if we are even unified enough to use that term, possesses no basis for such pluralism. Put another way, pluralism is not a self-justifying political ideal. It arises from more basic, elementary principles. The founding principle of the current regime, a radical individualism that denies (sometimes quite explicitly) the existence of any mediating institutions between individual and state, has no basis for such pluralism.

Thus there is a kind of incoherence to contemporary proposals from evangelicals for religious liberty, not because of any incoherence in the concept of religious liberty itself, but because what few shared moral principles our society does possess leave no room for such a thing. The only widely shared principle left to us in the contemporary United States would seem to be the inviolability of individual identity. Indeed, it’s the one thing that the government still acknowledges rather than defines.

If you can agree to that core belief, you will do quite well in America—or at least you will if you’re at the top of the food chain and won’t be eaten up by the downstream social consequences of such a regime. Which is simply another way of saying “You’ll do well if you’re the person making the rules but not one of the people made to live by them who lacks the inherent advantages enjoyed by the people making the rules.”

The absolutist nature of such a system has two consequences. First, like all absolutist systems, it cannot broker dissent. Second, due to its hard individualism, the existence of a group that disputes that belief is itself an act of dissent—which is why we’re seeing a python-like constriction of religious liberty happening before our eyes. This combination renders any kind of pluralist proposal dead on arrival.

We live in Julia’s World now, and in that world there is the individual and the state—and there is no room for anyone who dissents from that status quo and believes that there are other prevailing social institutions between those two entities (whose claims may even trump those of the state). This is a point we must understand.

An appeal to pluralism within such an order, then, is doomed because the principle that evangelicals are leaning upon as they make that case does not exist within the post-religious liberalism of the current American regime as it exists on both the right and left.

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Posted by Jake Meador

Jake Meador is the editor-in-chief of Mere Orthodoxy as well as the Vice President of the Davenant Institute. He is a 2010 graduate of the University of Nebraska-Lincoln where he studied English and History. He lives in Lincoln, NE with his wife Joie, their daughter Davy Joy, and sons Wendell and Austin. Jake's writing has appeared in Commonweal, Christianity Today, Fare Forward, the University Bookman, Books & Culture, First Things, National Review, Front Porch Republic, and The Run of Play. His first book, "In Search of the Common Good: Christian Fidelity in a Fractured Age," will be published summer of 2019 by InterVarsity Press.

  • Jeremy

    Yes. You are correct. The government no longer even pretends to respect a moral social contract based on protestant Christian values. The age of pluralism is here. And the only place the church is allowed to have within the matrix is that of charitable giving and “social justice”.

  • hoosier_bob

    Nothing in the recently-passed legislation or in the guidelines would appear to give rise to “legal action against churches that do not use a person’s preferred pronouns.” Instead, the law covers instances where a church denies services to someone or restricts restroom access to someone on the basis of his or her gender identity. So, if the church holds a yard sale or a spaghetti supper, it can’t bar access to the event to someone based on his or her gender identity. To be honest, I suspect that most churches were already in compliance with the law.

    • And, FWIW, the guidance that the Iowa Civil Rights Commission originally put out (which was the precursor to Massachussets’ claim) included prohibiting anything that “directly or indirectly” made “persons of any particular…gender identity” feel “unwelcome.” The range of activities included a church service open to the public.”

      So, yeah. You’re right that there’s tons of fear-mongering on the Right about religious liberty. But it’s not like Eugene Volokh is a Religious Right Crusader. Not even close. And if he can see that there are problems, well, I am pretty sure that you can get there too.

      Best,

      Matt

      • hoosier_bob

        Yeah, the Iowa guidelines are pretty ridiculous. The notion of what constitutes a “public accommodation” is well established. The mere fact that a church makes its services open to the public doesn’t turn it into a place of public accommodation. Otherwise, my house would become a place of public accommodation merely because I hosted a neighborhood cookout.

        And, yes, making someone feel unwelcome is hardly actionable. If it were, it would instantly solve the problems associated with an oversupply of lawyers.

        • If we’ve seen anything over the past decade, it is that what was once “well established” can be revisited and redefined. If we can do it with marriage, we can do it with public accommodations. And we probably will, too.

  • Ray Muñez

    The non-binding guidance is clearly overreaching and its views would not stand up in court. The real issue is that folks like Jake Meador are unable to assess these things in a rational manner. Rather than see a single sentence in a non-binding guidance as an example of agency overreach, he seizes upon it as “proof” of a “new regime” which supposedly crushes all dissent.

    In fact, Massachusetts non-discrimination law has included sexual orientation since 1989, and there has never been a single instance of it being applied against a church or other house of worship. In fact, in terms of non-discrimination law generally, I can think of only a single instance of a non-discrimination law being applied to a house of worship (concerning the hiring of non-religious staff), and the US Supreme Court shot down that attempt 9-0. Meador illustrates this post with a picture of Baronelle Stutzman, which must be the 1000th time that this website has mentioned her. But Stutzman is the owner/operator of a for-profit business, not a house of worship. Why illustrate a post about houses of worship with a photo of a business owner? Probably because Meador could not find a single instance of a house of worship being subjected to a non-discrimination law and so he had no choice but to use an inapt photo.

    And while on the subject of florist lawsuits, if such disputes are evidence of the persecution of the “new regime,” then why can’t Meador identify any florist in the entire United States other than Ms Stutzman who has faced such “persecution”? The reason: Because her case – now three years old and involving damages of only $1000 – is the only florist dispute in the entire country of 320 million people. But Meador needs to pretend like he is Winston Smith, so don’t tell him.

    • hoosier_bob

      Truth be told, much of this hubbub is around fundraising. There are a litany of para-church groups whose sole purpose is to defend the so-called Christian side of the Culture Wars. With the Culture Wars winding down, these organizations face the prospect of financial collapse. So, like any good entrepreneur, these organizations need to go out and open up new battle fronts to continue to justify their existence.

      There is no reasonable likelihood that conservative Christians are about to face any substantial kind of discrimination. That’s because most churches are likely to handle these matters sensibly. If a transgender person shows up to a public event at a church, it’s unlikely that most churches are going to prevent that visitor from using the restroom of his or her choice. Most churches are sensible enough to recognize that it doesn’t cost anything to permit a transgender woman to relieve herself in a stall in the women’s restroom.

      As for Stutzman, her objections seem pretty contrived to me. I expect that she will end up making far more money from this controversy than it will cost her to litigate it. All she had to do was arrange a few flowers, and have her delivery guy drop them off at the wedding venue. What’s next? Does a same-sex marriage violate the conscience of the cleaning person who vacuumed the carpet the night before? Or what about the conscience of the gas station attendant who sold people gas that enabled them to attend? And what about those who may have religious objections to interracial marriage? Stutzman’s complicity argument is so thin that it barely seems credible. That is, unless you’re someone who’s committed to the fictitious notion that conservative Christians are facing persecution in America. Unsurprisingly, those who promote that fictitious notion are often people affiliated with organizations that face financial collapse if the Culture Wars end.

      Evangelicalism was once a movement. Then, it became a business. As of late, it’s become little more than a racket. That’s why I suspect that Roman Catholicism will be the only conservative form of Christianity that survives for the long term in America. Protestantism seems to have reached the point of intellectual exhaustion.

      • Hoosier,

        “As for Stutzman, her objections seem pretty contrived to me. I expect that she will end up making far more money from this controversy than it will cost her to litigate it. All she had to do was arrange a few flowers, and have her delivery guy drop them off at the wedding venue. What’s next? Does a same-sex marriage violate the conscience of the cleaning person who vacuumed the carpet the night before? Or what about the conscience of the gas station attendant who sold people gas that enabled them to attend? And what about those who may have religious objections to interracial marriage? Stutzman’s complicity argument is so thin that it barely seems credible. That is, unless you’re someone who’s committed to the fictitious notion that conservative Christians are facing persecution in America. Unsurprisingly, those who promote that fictitious notion are often people affiliated with organizations that face financial collapse if the Culture Wars end.”

        I like a lot of what you have to say, Hoosier, more than you might think. But this demonstrates a facile understanding of the actual facts in the case, like what kind of service for weddings Arlene’s Flowers (her shop) provides. Stutzmann would be present at every wedding she supplied flowers for, to manage both the placement and be on hand to assist if anything went wrong. You may think that’s ridiculous: others thought it was incredibly personal service. Had she done just for this customer what you say….well, she would have ended up in the exact same place as she is now, wouldn’t she, because she would be discriminating.

        The only way you’d come around to your view is if you had already pre-determined that the only way someone could have a legitimate complicity claim is because they had a pre-determined persecution complex.

        Matt

        • hoosier_bob

          Matt,

          The problem I have with these complicity arguments is that they’re too subjective and, if permitted as a defense to violating antidiscrimination laws, too open-ended. If one grants Stutzmann the defense she seeks, then it’s hard to see how a white supremacist business owner couldn’t avail himself of a similar defense.

          I’m fine with a limitation that permits business owners to refuse to participate in religious rites that offend their consciences. The same goes for compelled speech. But it would have to come as a legislative compromise. The Free Exercise Clause has traditionally only protected worship or activities closely tied to worship. If Stutzmann can reasonably accommodate the customer request without being physically present during the ceremony–which a florist probably can–then I have a hard time seeing the merits in her claim.

          Besides, I suspect that there would be broad public support for reasonably limited carve-outs to antidiscrimination laws to provide legitimate conscience protections. But when reasonable means are available to serve the customer without violating one’s conscience, then it makes more sense for Stutzmann et al. to take that course. For example, when a baker in Colorado refused to write an antigay message on a cake, she went ahead and baked the cake and gave the Christian customer a frosting tube with which he could write his own antigay message. If Stutzmann had provided the flowers but excused herself from the actual wedding ceremony, then I doubt that this would be an issue.

          Also, I enjoy reading what you guys write here. As an attorney, I probably lean in a contrarian direction. I also think that the world is a much more sane and predictable place than many Christians think it to be.

          • Hoosier,

            Frankly, that it is “hard to see” how a principle might lead such situations does not entail that it is “impossible to see.” It seems to me like your argument essentially boils down to the claim that discerning the appropriate boundaries for religious liberty claims is hard. But no one disputes that, not here.

            And, look, it’s possible that Stutzmann could have ‘reasonably accommodated’ the customer as you say. But it’s also possible that the customer could have ‘reasonably accommodated’ Stutzmann’s unwillingness to use one of the many other florists who were willing and eager to do the wedding. This is one reason why I am opposed to the steady expansiveness of anti-discrimination law as a means to social change: It removes the non-judicial means (that is, political) means of resolving these sorts of conflicts.

            And suppose that she offered a ‘two-tier’ service, so that she would be present in the weddings she thought were morally permissible but not at those she didn’t. It sure seems like the response would be to lump that under “separate water fountains.” The gay customer would still have grounds to sue for sexual orientation discrimination, and we’d still be here arguing about it’s legitimacy. You might find that accommodation reasonable–but no one in the gay community would, precisely because the position permits some business owners to treat gay customers as ‘second class citizens.’ I know you’re optimistic about finding reasonable concord on these issues. And I am too, if we are thinking about most ordinary Americans. But the activist/political classes are not ordinary Americans, and are disproportionately filled with people (on both sides) who will give no quarter to dissenters. And they (pace James Davison Hunter) drive the discussion far more than the rest of us.

            Also: Do you really mean that every business owner should be forced to provide services for religious ceremonies *unless* there is a legislative compromise? So, do you think that an Orthodox Jewish kosher certifier should be compelled to be present at a gay wedding to certify that their food is kosher unless the legislature gets involved? That strikes me as a deeply troubling principle on which to approach religious liberty judicial practice from, as it seems to indicate that the State is free to coerce *unless* the legislature compromises. But that removes the possibility of rights claims acting as hedges *against* the legislature’s coercive overreaching. Do you also think a similar principle holds for freedom of speech?

          • hoosier_bob

            I’m simply stating–as you are–that these are issues that are better resolved via legislative compromise than by litigation. Even so, pursuing reasonable legislative compromises has not been high on the list of pursuits of religious-rights groups. That’s because reasonableness doesn’t generally induce cultural food fights. And, sadly, too many groups rely on cultural food fights to sustain their power and meet their fundraising goals.

            Christian Smith published a perceptive article a few years ago entitled “Evangelicals Behaving Badly with Statistics.” One phrase in Smith’s piece sums up why I elected to leave evangelicalism.

            “The real question is not whether evangelicals can clean up their statistical act. The deeper question is whether American evangelicals can learn to live without the alarmism that is so comfortably familiar to them. Evangelicals, by my observation, thrive on fear of impending catastrophe, accelerating decay, apocalyptic crises that demand immediate action (and maybe money). All of that can be energizing and mobilizing. The problem is, it also often distorts, misrepresents, or falsifies what actually happens to be true about reality.”

            There are legitimate religious-liberty questions that we need to navigate as a pluralistic culture. But if evangelicals want to be taken seriously in those discussions, they’re going to have to disabuse themselves of the kind of alarmism and hyperbole that characterize so much of evangelical public discourse on socio-cultural matters. It also doesn’t help that evangelicals keep casting aside many of their most creative scholars as would-be heretics.

      • Ray Muñez

        Maybe what you say is true. The only way to know for sure would be to look at the internal files of these orgs and see how they quantify these persecution stories in terms of fundraising. But even if you are correct, it still doesn’t address *why* these few, small cases rake in the money and why Christians are so eager to believe the persecution narrative. Why don’t the Christian masses ever wonder why, if there is widespread persecution of Christian business owners, the same lone florist keeps getting mentioned over and over again? Why don’t they ever ask themselves “Shouldn’t there be hundreds or thousands of persecuted Christian florists and photographers out there by now? Why is the same florist showcased at conferences, TV ads, internet videos and fundraising letters for the past 3 years?” But they won’t ask those questions, just as they will never ask why not a single church in MA since 1989 has ever been subject to the non-discrimination law.

        • DR84

          There are two simple answers to this, after the first round of wedding vendors have gotten burned, the others wisened up. Some probably have given in, others just have never had an inquiry from two immature and petty people of the same sex who would sue, and the rest have figured out ways to turn them down without raising suspicion. It is also the case that these “anti-discrimination” laws interpreted by judges in this particular way are not nation wide, and these cases that have been mentioned many times are still going in the court system. So the final interpretation of the law is still not set. In fact, this is part of why they keep getting mentioned, they are not over. There are new developments to report on. It is also not likely that many other cases would get pushed into the system before the first round cases are done and over with. Ultimately, the Supreme Court is going to weigh in one way or another.

          It should also be said that the punishments some of these vendors have faced are very severe. Complete financial ruin is no joke. I have also heard the baker in Colorado would have faced jail time if not for a last minute change in the law due to public outcry. If these punishments do not count as persecution, what does?

          As far as MA goes and also Iowa, the issue in those states is that their Civil Rights commissions are trying to make a blatant power grab. They are suggesting they have ultimate power and authority over churches. Just because they have shied away from using it and sort of promise they wont ever use it, or at least abuse it, does not make their power grab ok. It does not mean churches have nothing to be concerned about or should not care.

          • Ray Muñez

            Virtually nothing in your comment is accurate. There are no other cases. That is why the same few keep getting mentioned over and over. And no, there aren’t other cases waiting around for the “first round” of cases to be concluded. There is no advantage to a plaintiff in waiting. Moreover, there are statutes of limitation which would preclude such an approach, even if for some reason a plaintiff were to conclude that waiting around for years is desirable. Anyone waiting 3+ years for Baronelle Stutzman’s case to be resolved (and it still has 1 year to go) will have lost his right to commence an action. And in some states, the “first round” case has been definitively resolved. The famous “New Mexico photographer” case – the only one in the entire United States of America – dates to 2005 and was resolved at the state’s highest court some years ago. But there hasn’t been any other gay wedding related case in New Mexico. Not a one.

            And no one has been “ruined.” The damages in the Stutzman case are $1001, a little fact which is never mentioned in rants like the one above. The reason it never gets mentioned is because the folks doing the hysterical ranting aren’t really interested in the facts of the case. They just repeat and amplify the hysterical talking points of the other ranters. So a $1001 case, essentially a small claims matter, has received more Christian attention in the last 3 years than 2.7 million abortions over that same time period. Moreover, Stutzman has reaped far more money than $1001 in public donations. She is actually far wealthier as a result of the case. Most of these cases result in an award of a few thousand dollars. The lone OR baker case is the only one to involve a substantial sum, and that may be reduced on appeal. Also, as with the Stutzman case, the OR bakers have reaped more money than their judgment. So no, literally no Christian business owner has been financially ruined as a result of a discrimination claim. Zero. And this what you and others are obsessing over, even while ISIS exterminates Christians en masse. Pathetic.

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