Why I’m not calling for Revolution

I cannot forgive or forget Trump’s praise for the most hideously totalitarian regime on the planet, for a bloodthirsty scion who conducts regular public hangings, keeps his subjects in a state of mind-control, holds hundreds of thousands in concentration camps, and threatens the world with nuclear destruction. To watch an American president give his tacit blessing to all of that, to laud Kim for being “rough” on his people, right on the heels of attacking every democratic ally, is an obscenity.

And this was the response of the secretary of State, when asked, inevitably, how the U.S. could in any way verify North Korea’s promised denuclearization: “I find that question insulting and ridiculous and, frankly, ludicrous.” It’s ludicrous, he explained, because the president said there will be verification of denuclearization. And so there will be. Get that? Just lean into the delusion, and everything will be well. Trump’s various mouthpieces have resorted to exactly that formula, when asked difficult or obvious questions that assume a reality different from Trump’s. The empirical questions — those that reference the real world — are “ludicrous,” “inappropriate,” or “ridiculous.” But then when the Trump peons can’t answer the question, because it would reveal Trump as a fantasist, what else are they supposed to do? Show a propaganda video made by the National Security Council?

[Vaclav] Havel had a phrase: “Living in the truth.” In a totalitarian society, living in the truth can be close to impossible, and yet it was possible for someone, as Havel analogized, as lowly as a greengrocer to refuse to “live in a lie”:

The original and most important sphere of activity, one that predetermines all the others, is simply an attempt to create and support the independent life of society as an articulated expression of living within the truth. In other words, serving truth consistently, purposefully, and articulately, and organizing this service. This is only natural, after all: if living within the truth is an elementary starting point for every attempt made by people to oppose the alienating pressure of the system, if it is the only meaningful basis of any independent act of political import, and if, ultimately, it is also the most intrinsic existential source of the “dissident” attitude, then it is difficult to imagine that even manifest “dissent” could have any other basis than the service of truth, the truthful life, and the attempt to make room for the genuine aims of life.

No, that’s not Rod Dreher. It’s Andrew Sullivan, Trump Is Making Us All Live in His Delusional Reality Show.

We are not (yet) living in a totalitarian society, and a series of Tweets from POTUS falls short of actual (versus aspirational) authoritarianism.

But we are governed by a man who has a severe personality disorder and is, if not delusional, perhaps even scarier for that. As just one microcosm (called to my attention by my brother in a Facebook exchange), our President, self-proclaimed master deal-maker, apparently knows nothing of win-win; our adversaries and even our allies must lose for him to feel that he has won bragging rights.

Be resolute. Do not surrender to the lie. The price of liberty is eternal vigilance.

But on the other hand …

Although I may have overdone “Trump versus Clinton has God’s judgment written all over it” in the run-up to the election, it was because I discounted God’s graciousness and patience (scripture citations omitted), of which discounting I’m repenting.

But the “Resistance” party is scary — very scary — in its statist impulse to cut down every structure of civil society that doesn’t conform to the latest progressive pieties. Only the space inside the “four corners” of our homes is spared, and that only for now.

Consider Catholic Charities, driven from adoption licensure in several states because it won’t place children with same-sex couples (who have alternate agencies for adoption, be it noted), or Trinity Western University in Canada, a Christian University which cannot start a law school, and presumably will soon lose its other accreditations, unless it declares open season for fornication and sodomy among its students.

If it’s just me (or me plus some feckless institutions that won a government Seal of Docility) versus the government, then I’m as powerless as Roper when the laws of England were mowed down so he could pursue the devil. This conviction was germinating in me fifty years ago and has grown stronger as I gained vocabulary, added contexts, and watched the mowing down proceeding in ways I never thought I’d live to see.

God’s judgment or just the denoument of liberalism, we really are in a pickle. That’s why I’m trying to remain vigilant but not calling for revolution, the results of which are highly, highly likely to be, hard though it be to imagine, as bad or worse than the status quo.

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We’re not asking for much

[Masterpiece Cakeshop] did not decide the question about religious freedom and the rights of sexual minorities. However, one key element of the decision drew my attention. The court recognized how anti-Christian bias on the part of the Colorado Civil Rights Commission negatively impacted the chances of the defendant – Jack Phillips. I have done research on Christianophobia, and some individuals choose to ignore the data to say that it does not exist. But now the Supreme Court not only acknowledged its existence but also ruled that it can negatively impact Christians.

The challenge to the religious freedom of Christians comes from those with Christianophobia defined as an unreasonable fear and hatred of Christians. In the United States they generally target conservative Christians. Those with Christianophobia tend to be white, male, wealthy, highly educated, politically progressive and irreligious. These qualities describe individuals with power in our cultural institutions such as academia, media and the arts.

The way anti-Christian attitudes manifest themselves is generally though measures that concentrate on removing Christians from the public square rather than overt discrimination. A great example of this can be seen in the recent University of Iowa ruling. The university attempted to impose a rule by which student religious groups had to allow those nonbelievers to be leaders on a Christian group but not on a Muslim group. On the surface the administrators claimed that the rule is religiously neutral, but clearly they treated non-Christian groups differently than Christian groups. Non-Christian groups were to be allowed to have a cultural presence on the campus that was to be denied to Christians.

George Yancey, Will Loss of Religious Liberty Doom Evangelicalism?

A lot of religious liberty lawyers would join me in opining that most anti-Christian bias (“Christianophobia” if you must) would disappear if only our elites would afford Christians:

  • the same respect they generally afford everyone else,
  • they specifically afford Muslims, as at the University of Iowa, or
  • they afford bakers who refuse commissions for cakes with Biblical “slam passages” artfully applied to the frosting.

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A masterpiece of prudence

I’m relieved in a way that the Supreme Court decided to punt on the Masterpiece Cakeshop case. We could do with a little fudging in the culture wars these days. So instead of tackling the deeper, perhaps irresolvable, conflicts of religious freedom and gay rights, Kennedy just narrowed the ruling to the single case in question, and cited the anti-religious statement of one member of the state commission as the crux of the case. Money quote:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.

Kennedy was referring to one of the state civil-rights commissioner’s contemptuous statement about the baker’s faith. The trouble is, a growing number of people, many of them exactly kind of person who sits on a civil-rights commission in a blue state, do actually and sincerely feel contempt for religion and religious belief. They think that all religious thought and practice is bonkers, irrational, based on ancient, strange texts, and with no relevance in the modern world, and a force, on the whole, for bigotry. When those texts and beliefs are used to do what many consider harm to someone based on an involuntary characteristic, it’s a no-brainer. Of course gay rights will increasingly win out in these cases, especially now the state commissioners won’t be so dumb as to air their real views in public.

And this is true even for weak-kneed Christians like me who have no interest in hitting anyone else over the head with our faith. When it comes to full-on fundamentalists, the capacity for some scrap of mutual understanding is increasingly remote. The more distant you are — socially, geographically, generationally, culturally — from anyone who practices religion in any serious way, the harder it is to empathize, and to see these cases as a conflict at all. It simply seems incredible that someone would hold these views faithfully.

I’m not criticizing the right to see religion in this way; I’m worried simply about how this kind of contempt and mutual incomprehension spill over into civil intolerance. Which is why I still hope we can muster up as much respect for the homosexual person as we can for the faithful one. Most of the time, if we use a little restraint, we can avoid these ugly and difficult conflicts. For those many of us who are both gay and Christian, it would surely be a mercy.

(Andrew Sullivan)

Elsewhere, Mark Shea, Catholic provacateur (I was tempted to say “iconoclast” but I don’t want to perpetuate that ugly word’s favorable current connotations), planted a seed from which a resolution to many of these controversies might just grow:

So how do we think bigger?

Well, to begin with, drop the pose of defensive hostility. At this point in the game, a gay couple coming into a bakery to get a cake is probably there to get a cake, not to launch a Supreme Court challenge calculated to destroy a Christian baker and inaugurate a nationwide purge of all Christian businesses.

But even if a customer is a militant jerk with a chip on his shoulder there are ways of dealing with this recommended to us by the gospel and modeled by the Tradition. Let’s consider them.

In Jesus’ day, Jews really did (unlike butthurt American conservative Christians with no problems bigger than Starbucks coffee cups, Google doodles, and Target clerks who say “Happy Holidays” instead of “Merry Christmas”) face oppression for their faith. The Roman occupier could dragoon any Jewish guy into carrying his heavy armor for a mile. It was not only a pain in the neck, it was ritually defiling for the tender consciences of some Jews under the influence of the hyper-purity of Pharisaism.

What was Jesus’ counsel?

You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist one who is evil. But if any one strikes you on the right cheek, turn to him the other also; and if any one would sue you and take your coat, let him have your cloak as well; and if any one forces you to go one mile, go with him two miles. (Mt 5:38–41).

[R]ather than immediately leaping to the headspace of fantasizing about ridiculous doomscapes of Domination by Totalitarians (something Christianists, not Christians, habitually do) I think it wiser to leap to the gospel and to the virtue of Prudence.

That means trying to build bridges of trust, not walls of hostility ….

So the plant I see growing from this is an alternative script for the Masterpiece Cakeshop conversation:

Customers: We hear you do fabulous wedding cakes. We’d like you to make us a cake for our big fat gay wedding.

Jack Phillips: Well, thanks for the compliment. Can we talk about this?

Customers: Sure, that’s why we’re here: to talk about getting a wedding cake from you.

Jack Phillips: Thanks. My specialty is custom cakes with a lot of artistry in them. I don’t bake wedding cakes just for fun and then hope someone comes to buy them. But there are custom cakes I won’t bake. I don’t do Halloween cakes, for instance, because my conscience tells me that our celebrations of Halloween are not healthy. No law says I have to bake Halloween cakes.

My conscience also would prevent me designing and making a cake that includes rainbows, or figures of two grooms on top, or anything like that, because of my convictions about what marriage is or should be. Apparently, you have different convictions. But if I make you a cake, I’d only want to make one that looks pretty much like a cake for any other wedding, weddings of men and women.

Are you okay with that?

The conversation can go several ways from here:

Customers: No we’re not okay with that. What kind of bigot are you?!

Jack Phillips: I don’t think that makes me a bigot, but suppose it does. Do you want to do business with a bigot?

 

Or:

Customers: What if we’re not?

Jack Phillips: In that case, you’ll probably be happier with one of the bakers in town whose heart would really be in this, because my heart wouldn’t be, and I may not live up to my advance billing.

If you insisted, I might even refuse, but I’d rather not go there ….

Or:

Customers: That sounds fair.

Jack Phillips: Then when would you like to talk about cake designs?

None of these scenarios seem as likely to end in litigation than did The Real Jack Philips’ pretty mild remark.

Mark Shea wants such prudence because Christ called for something pointing that direction (i.e., not standing on what you think your God-given rights are) you’ll never evangelize people by asserting your right to oppose them.

I want such prudence because if the Customers really are virulently anti-Christian provocateurs out to “get the Christian baker,” I want to disarm them, or at least discuss things with them in a way that makes them the unreasonable ones. There are signs in the Supreme Court briefs and opinions that carrying the conversation further down the artistic path before any refusal would have made Jack’s case stronger.

I don’t fault Jack for not being a lawyer or thinking like one. I still think he should have won on more substantive ground than he did win on. Free speech sometime can offend, and if “he offended me deeply” ever becomes trump to free speech, free speech is dead.

I don’t fault Jack for drawing a line where even some serious Christians might disagree with him. The gravamen of “if any one forces you to go one mile, go with him two miles” might suggest that he simply bake the cake, even with rainbow flags and “Congratulations, Adam and Fred!” inscribed on top, though I really can see myself in Jack’s shoes, and I have a hard time thinking it would be one of his best works because he’d be doing it with no pleasure and little rapport with the customers. And I don’t think it’s the government’s job to interpret and enforce “if any one forces you to go one mile, go with him two miles.”

But graciousness (Jack was pretty gracious actually) and dialog might go a long way both religiously and legally.

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Aggregator: What does Masterpiece Cakeshop portend?

Social conservatives continue poring over the Supreme Court’s Masterpiece Cakeshop decision to discern what it is:

  1. A punt, pure and simple. Only this and nothing more.
  2. A punt with deliberate hints of better things to come.
  3. A punt with deliberate hints of worse things to come.
  4. A punt with inadvertent hints of better things to come.
  5. A punt with inadvertent hints of worse things to come.
  6. Something else.

Herewith an aggregation, with more substance at the end.

  1. David French, attorney, both immediately and later in rebuttal of his less sanguine colleague. I don’t disagree with French lightly, but I’m quite skeptical of his second, third and fourth points in the second piece.
  2. Andrew McCarthy, that less sanguine colleague, who alone in this pack is okay with Justice Scalia’s rewriting of free exercise jurisprudence.
  3. Rod Dreher, stunned and grateful that we won, no matter how small.
  4. Erin Manning, who intuits some things so simple that only an intellectual (or a lawyer) could miss them (have we really expanded basic, fundamental human rights and needs to include wedding cake? Seriously?).
  5. Robert P. George, who discerns at least a clear principle that you don’t have to leave your religion at home when you go to work.
  6. Darel E. Paul (“Only profound naïveté can spin the majority decision as a victory for religious liberty.”).
  7. Hadley Arkes, who gives a law-savvy but essentially philosophical critique on the whole gang, the 7 as well as the 2, as relativists.

My favorite I’ve held back until now. R.R. Reno is no lawyer but has penetrated the tectonic shifts that may be taking place as “anti-discrimination” tries to grow in foreign soil as the putatively oppressed have now become elites engaged in punching down. (Caveat: Reno’s short article may be so allusive that it will “go over your head” if you haven’t been immersed in these issues for some time already. I can’t tell because I have been immersed, particularly since Chai Feldblum said that in almost every clash between gay rights and religious freedom, gay rights should win.)

And Marc Randazza, who I think is an irascible libertarian of some sort rather than a conservative, takes a scatological swipe at Jack Phillips but then correctly affirms that Phillips should have won on substantive grounds, with no dithering about petty anti-Christian Colorado Civil Rights Commissioners.

That was my preferred outcome, and one easily enough justified if we didn’t have Justices so tainted by knee-jerk progressivism that they refuse to acknowledge the reasonableness of the belief that a wedding cake symbolizes that a real wedding has occurred, a real marriage begun, and the one needn’t be a bigot to question that in the case of two men or two women “marrying.” Indeed, in Chestertonian terms, those justices are the real bigots:

Bigotry is an incapacity to conceive seriously the alternative to a proposition.

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Masterpiece Cakeshop

Some fairly preliminary thoughts on today’s Supreme Court decision.

Religious liberty advocates got the opinion they wanted. Unfortunately, it was a concurrence by Justice Thomas with Justice Gorsuch joining. More on that in a moment.

Justice Kennedy’s much narrower majority opinion is a disappointment not only because it’s not what my side (or the other) was hoping for but because it dodged the core issues with some hand-waving that I view as disingenuous.

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.

That’s uncommonly stupid even for Anthony Kennedy. Few people who watch a Irish ethnic pride parade in Boston, or people watching a lewd dance, or people watching flag-burning, or any number of other things, will think they’re watching exercises of free speech. So what?

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service.

It’s true that the parties disagreed, but their disagreement was about nuances that needn’t be resolved as the core issue was resolved. As justice Thomas points out in his concurrence, the Colorado Courts resolved that question sufficiently to permit a ringing decision on free speech grounds:

The Court does not address this claim because it has some uncertainties about the record.  See  ante, at 2.  Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (includ­ing a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips’ favor.  The court described his conduct as a refusal to “design and create a cake to celebrate [a] same-sex wedding

Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expres­sive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect.  This reasoning flouts bedrock prin­ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.

(Emphasis added) And comment he does.

Of course, conduct does not qualify as protected speech simply because “the person engaging in [it] intends thereby to express an idea.” United States v. O’Brien, 391 U. S. 367, 376 (1968). To determine whether conduct is suffi­ciently expressive, the Court asks whether it was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 294 (1984). But a “ ‘particularized message’ ” is not required, or else the freedom of speech “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U. S., at 569.

The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his crea­tions can be seen on Masterpiece’s website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).
Phillips is an active participant in the wedding celebra­tion. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that “a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.” App. 162. Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, “[w]edding cakes are so packed with symbolism that it is hard to know where to begin.” M. Krondl, Sweet Invention: A History of Dessert 321 (2011 (Krondl); see also ibid. (explaining the symbol­ism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is “so stand­ardised and inevitable a part of getting married that few ever think to question it.” Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. “A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wed­ding and afterwards.” Ibid. Although the cake is eventu­ally eaten, that is not its primary purpose. See id., at 95 (“It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings”); id., at 97 (“Nothing is made of the eating itself ”); Krondl 320–321 (explaining that wedding cakes have long been described as “inedi­ble”). The cake’s purpose is to mark the beginning of a new marriage and to celebrate the couple.

Ac­cording to the individual respondents, Colorado can com­pel Phillips’ speech to prevent him from “ ‘denigrat[ing] the dignity’ ” of same-sex couples, “ ‘assert[ing] [their] inferiority,’ ” and subjecting them to “ ‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

(Emphasis added)

That the court could not muster a 5-4 majority for such an opinion, but relied on a couple of technicalities (so to speak — nobody thought the fairness of the proceedings was the core issue in the case) I fear as a bad omen.

But omen’s are just omens. I thankfully could be wrong. David French is more upbeat.

Both sides surely will be mining the opinions in the abstract and, all too soon, in the context of another case akin to this. I only hope they will leave Jack Phillips alone now, but the way this was decided, he’s at risk of targeting as soon as he resumes offering wedding cakes to those who are actually entering into real marriages.

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Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Place. Limits. Liberty.

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Spitting in the soup

That people associated with a university would invite a hateful mythmonger like Richard Spencer to campus is a tragedy; but it’s a greater tragedy that someone like Spencer is a public figure at all. That’s not something that even the best university administration can fix.

I might add that when people say that they want conservative ideas to be represented on campus and then invite Ann Coulter or Milo or Richard Spencer to speak, they have zero interest in ideas. They just want to spit in their neighbor’s soup.

(Alan Jacobs, part of his delayed reaction to the New Atlantis article I recently alluded to)

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First Amendment Follies

Which is more depressing?

  1. A California Attorney General ignorant of the first amendment or contemptuous of his oath to uphold the constitution; or
  2. A group of Texas College Presidents who, presumably having deliberated carefully, apparently couldn’t find among them even one College President to scream “Wait a minute! We’re going to make asses of ourselves!” before publishing solemn nonsense that made asses of themselves?

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Speech or Religion?

I wrote several times, I’m pretty sure, that I thought the Masterpiece Cakeshop case would be argued by Jack Phillips’ attorney, and would ultimately be won, as a case about compelled artistic expression, a violation of the First Amendment’s speech clause. Free speech and compelled expression precedents are more strongly in Phillips’ favor than the current state of the law on free exercise of religion. Or so I thought.

I stand by that, but I’ll admit that the justices asked some pretty skeptical “where do we draw the line” questions about when or whether a cake is expressive, when a craft is art, and stuff like that (the last clause is my fudge factor — I’m not going back to review the transcript of argument again).

[Digression: I don’t think they’d have asked those skeptical questions had the case not implicated our newest Super-Right, the right to have everyone in every way affirm your every expression of your every sexual (and “gender”) whim. So it appears that the law of the land has another distortion factor baked into it: an LGBT distortion factor has taken root, joining the original abortion distortion factor (“no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion”) and a little-remarked creationist distortion factor (Creationists categorically lose cases involving science teaching—and intelligent design advocates get labeled “Creationists”).]

But I do disgress. I wrote today because someone I respect thinks, after scrutinizing the Masterpiece Cakeshop oral arguments, that the case could turn on the free exercise of religion after all.

Mark Bauerlein and Mark Movesian recently chatted about this on the First Things podcast. Bauerlein is no lawyer, but Movesian is a law prof, and he thinks Anthony Kennedy may smell blood in the water: a lack of neutrality or of general applicability in the Colorado law, which could be fatal under Employment Division v. Smith‘s new test for free exercise violations (the “when does the constitution create a religious exemption to a law” question).

The lack of neutrality (e.g., gerrymandering to target an unpopular religion) has been fatal in only one famous case since Employment Division v. Smith, to the best of my recollection: a case involving Hialeah Florida targeting the Santeria religion, Church of the Lukumi Babalu Aye v. City of Hialeah. But general applicability has been a wider problem, because, basically, religion gets an exemption if anyone gets an exemption, and our laws typically are riddled with “small business,” “Mrs. Murphy’s Boarding House” or other piddly little exemptions that someone lobbies for powerfully or that seem fair to legislators.

So here’s the problem: Colorado has, on something like three occasions, exempted cake bakers from making cakes that opposed gay rights or same-sex marriage. I assume those cakes were sought by provocateurs who, frankly, I would have dismissed as misguided and counterproductive (I actually may have so dismissed them). But by asking for a Bible-shaped cake with a Romans 1 “Clobber Passage,” the provocateurs may have turned refusal into “anti-Christian discrimination.”

Not only did those other three bakers win on the basis of dubious distinctions from the Masterpiece Cakeshop case, but a couple of Colorado’s Civil Rights Commissioners slung some bigoted-sounding remarks at Jack Phillips, with which Justice Kennedy grilled Colorado’s attorney. (Pro Tip: Do not let any mean words pass your lips if Anthony Kennedy may eventually be judging your case.)

I’ve taken more time than intended hyperlinking to terms of art and cases that not all readers may know, so I’ll wrap up.

Bauerlein, the non-lawyer, was delighted to think this might be decided on free exercise of religion grounds. I disagree. I would consider it remarkable and disheartening if Jack Phillips won on “an oopsie!”—catching the Colorado Civil Rights Commission in an inconsistent application of its facially neutral and exceptionless law—because that would be a narrow decision where I’d like, the cases that have built up in this area need, and the Supreme Court normally delivers, something bigger and more definitive than “this one Colorado law was applied to Jack Phillips in an nasty and inconsistent, and therefore unconstitutional, manner.”

The country doesn’t get a lot of guidance out of that on how to behave in the future, and what guidance it does get tends toward “use some guile and maintain plausible deniability when you stick it to Christian bigots.”

But if Colorado’s “oopsie” prompts overruling of Antonin Scalia’s nadir, his new free exercise test in Employment Division v. Smith, and restoration of the status quo ante, the Wisconsin v. Yoder free exercise test, I would be stunned and very, very happy.

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Why do they hate us?

What They Saw in America:
Alexis de Tocqueville, Max Weber, G. K. Chesterton, and Sayyid Qutb

by James L. Nolan Jr.
Cambridge, 306 pages, $27.99

In the wake of 9/11, James Nolan was prompted to reflect on America to find a satisfactory answer to a simple question: “Why do they hate us?” He gives his answer by pairing the critical observations of three widely respected European writers, whose feelings toward America were at worst ambivalent, with those of Sayyid Qutb, an early leader of the Muslim Brotherhood, whose views were downright hostile.

Common threads in all four of his subjects’ criticisms of America lead Nolan to conclude that many traditional hallmarks of American exceptionalism—liberal democracy and individuality, free markets and free speech, pragmatism and pluralism—can be viewed as quintessentially American vices, and sources of perennial conflict with the outside world.

The problem, for Nolan, isn’t so much what these norms and institutions represent in themselves (which is very little, since most are only negations of positive values). Rather, the problem is what they leave behind once pockets of illiberal opposition, such as orthodox Christianity, fade away: little more than commodity fetishism and libido dominandi. Or so Tocqueville feared, and Qutb raged.

—Connor Grubaugh is assistant editor of First Things.

(First Things, January 2018. Paywall will disappear over the next month or so, article by article.)

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