The patriotic movement may well be able to find policy consensus on many issues, including immigration and free trade. This consensus need not, nor should it aspire to, resolve all differences. In several matters the main goal may be to contain differences by explicating a core of shared values. However, the patriotic movement faces a major challenge when it must sort out its positions with regard to what has been called culture war issues, such as abortion, same-sex marriage, and transgender rights.
When deliberating culturally sensitive topics, both sides feel that they are concerned with absolutes and tend to hold that the other side has neither a moral nor a legal foot to stand on. The question arises, How can one contain conflicts when core values are at stake? Part of the answer lies in leaving some contested matters out of the public realm. Indeed, some advocate that marriage, for instance, should not be defined by the state, that each couple be left free to form their own marriage contract.
Some issues, however, the state cannot avoid—whether abortion should be legal, whether LGBTQ people have the same rights as heterosexual citizens, and what constitutes discrimination. I believe that if the opposing sides have a strong sense of community on other grounds, this will help people deal with these differences, but I grant that culture war topics will remain divisive even when all parties are strong patriots. The answer might be found in leaving these matters to the courts, which in the past worked out middle grounds that most citizens learned to live with. Others, though, hold that leaving these matters to the courts exacerbates rather than lessens the divisions, as the “losing” side feels the courts’ adjudication (“legislation from the bench”) foists its decisions without genuine public debate and consensus.1 However, as I see it, the courts may often be the only place these issues can be worked out. In either case, I suggest, all parties involved should show a measure of self-restraint.
The American law allows landlords to evict tenants who do not pay rent for a few months on any day, including Christmas Eve, as long as proper eviction notices have been served. However, our moral values hold that an eviction on such a holiday would be indecent, would be morally inappropriate. Indeed, in a considerable category of situations our values teach us the enforcement of legal rights to the full limit is morally wrong. Such legal self-restraint is often fostered by intangible moral forces.
The basic moral idea before us has been captured in the phrase “a pound of flesh,” signifying conditions where one should not extract what one is due even if one is fully entitled to do so. The expression comes from Shakespeare’s Merchant of Venice (circa 1599), in which a merchant, Antonio, borrows money from Shylock. The terms of repayment hold that the loan will be interest-free under the condition that if Antonio does not meet his commitment, he will have to pay a pound of his own flesh to Shylock. Antonio’s maritime business goes under, and he is forced to default on the loan. In response, Shylock, motivated by mutual enmity, sets out to collect his pound of flesh: “The pound of flesh which I demand of him is dearly bought, ’tis mine, and I will have it.” Shylock is depicted not as someone who made a fair deal and intends to claim what is rightfully his but as a heartless, cruel banker.
In the eighteenth century, the phrase started to take on its modern, figurative meaning: to take a pound of flesh is to demand of someone recompense that is legal, yet unreasonable, merciless, or inhumane.2 For instance, an 1887 newspaper article read, “All the other Great Powers want their pound of flesh from Turkey.” A French romantic novel from 1905 used it similarly: “That relentless and stern France which was exacting her pound of flesh, the blood-tax from the noblest of her sons.”3
The same basic concept is reflected in a court case concerning Walker-Thomas Furniture, a rent-to-own furniture store. Its contracts stipulated that none of the furniture was owned by customers until all of the items purchased were paid for. When a customer defaulted on payment for one item, the store tried to repossess all of their previous purchases that had been paid for in full. The District of Columbia Court of Appeals ruled that courts could refuse to enforce contracts deemed unconscionable and sent the case back to the trial court for such a determination.4
Although the term has historically been employed to characterize interpersonal relations, it also has a profound communal implication. It suggests that when community members deal with one another, they ought to make some concessions to each other, because they are dealing with people with whom they have bonds of affection and commitments, as well as people they will need to work with, indeed live with, another day. This holds not only for workplaces, neighborhoods, or towns, but even for nations. Nations serve as imagined communities that forge deep bonds, indicated by how strongly people feel when national sports teams win or lose and when their nation is celebrated or demeaned—and by their willingness to die for their country.
The chapter moves next to examine two situations in which this concept applies on the national level. One concerns free speech and the other, discrimination.
Free Speech: A Right Does Not Make It Right
A crucial difference exists between the right to say highly offensive things—to use the n-word, to employ ethnic slurs, to argue that soldiers died in battle because their nation tolerates homosexuality—and the rightness of saying these things. It is the difference between a legal right to free speech and what we consider morally appropriate speech. All of us are not only citizens with a whole array of rights but also members of various communities comprised of people with whom we reside, work, play, pray, take civic action, and socialize. These communities, in effect, inform one that if someone engages in offensive speech—which, granted, is one’s right—that person had better have a sound reason to so express themselves. For instance, offensive speech may be essential for an artistic work that depicts the perspective of the oppressed. Otherwise, people who engage in offensive speech without a cause are considered morally flawed.
Many democracies deal with this dilemma by enacting laws that limit free speech; for example, they ban hate speech. In the US, however, we have, in effect, decided to rely on our communitarian sensibilities to prevent—and, as I show next, informally curb—hate speech rather than to legally prohibit it.
In many situations, the notion that one should not engage in offensive speech unless there is a particular reason to do so is supported by informal social mechanisms. Those who express their right to free speech to the full limit by wantonly offending other community members are subject to social pressure, condemnation, suspensions, and even job loss. For example, Lawrence Summers, serving as the president of Harvard University, resigned after the public outcry following his remarks that women’s underrepresentation in the sciences may reflect their intellectual shortcomings.
In 2017, June Chu, a dean at Yale University, was placed on leave for writing demeaning Yelp reviews, and later left her position. “If you are white trash, this is the perfect night out for you!” Chu wrote in a review of a restaurant.5 In a review of a movie theater, she described employees as “barely educated morons trying to manage snack orders for the obese and also try to add $7 plus $7.”6 Chu apologized, saying her comments had been “wrong” and “insensitive.”7 Kenneth Storey, a visiting assistant professor, was fired from the University of Tampa after he tweeted, in reference to the destruction caused by Hurricane Harvey in 2017: “I don’t believe in instant karma but this kinda feels like it for Texas. Hopefully this will help them realize the GOP doesn’t care about them.”8 After receiving a chorus of condemnation, he deleted the tweet and issued an apology
In 2014, Elizabeth Lauten, communications director for former US representative Stephen Fincher (R-TN), resigned after the critical remarks she made on Facebook about Malia and Sasha Obama went viral and prompted a backlash. “Act like being in the White House matters to you. Dress like you deserve respect, not a spot at a bar,”9 wrote Lauten of the first daughters, then sixteen and thirteen years old. She quickly apologized and admitted she “judged the two young ladies in a way that I would never have wanted to be judged myself as a teenager.”10
When faced with a community’s pushback, free speech advocates sometimes complain, calling it soft or outright censorship. For example, some users of the social media site Reddit wanted its CEO fired for censorship after five forums (out of thousands) were deleted for racial or other forms of harassment. Facebook has been criticized and even sued for censorship because it bans users who display pictures of women’s breasts. Twitter was criticized for introducing content filters and temporary account suspensions for abusive messages and “indirect threats of violence,”11 in what one user said “can only be described as heavy-handed censorship.” And in response to a Harris Poll showing that 71 percent of Americans want a rating system for books to protect children from inappropriate content, like those that exist for movies and games, free speech advocates argued that such a proposal would “raise serious concerns about censorship.”12
These champions of free speech, unwittingly or deliberately, use the horror that the term “censorship” evokes to object to social reactions to offensive speech. In doing so, they attempt to delegitimize social pressure, which is a fundamental element of all communities. Censorship, by definition, takes place when the government exercises its coercive powers to prevent speech by jailing dissenters, closing newspapers, taking over TV stations, and so on. Social pressure merely ensures that before one speaks, one asks whether what one has to say justifies the hurt it will cause, often to people who have already been hurt greatly.
One can readily imagine communities in which the social pressure to limit speech is much too high. However, in the US and other liberal democracies, excessive moral fostering of self-restraint is relatively rare, while instances of exercising free speech with very little concern for others seem quite common. The Supreme Court has ruled that the Westboro Baptist Church (which believes that God is punishing the US for its acceptance of homosexuality) is allowed to picket the funerals of military service members, displaying signs with statements such as “Thank God for dead soldiers” and “You’re Going to Hell.”13 The Supreme Court also struck down a Massachusetts law that created a thirty-five-foot buffer zone around abortion clinics that protesters were not allowed to enter.14 Protesters often follow patients to the doors of clinics, shout phrases such as “baby killers,” and even threaten patients and physicians.15 These legal rights are morally beyond the pale—and a decent human being will not exercise such rights.
One may argue that there is no clear line between speech that is offensive and vital for a thriving democracy, and speech that is merely hurtful and advances no cause other than hate and humiliation. Indeed, there is a continuous debate over whether the social mechanisms that curb abusive speech are too powerful or not powerful enough (for instance, there are often debates on college campuses on whether certain speakers should be invited, or if “safe zones” and trigger warnings should be provided). True, societies may oversteer in one direction or the other (a common failing of all societies, which are driven like cars whose steering wheels are very loose, tending to overshoot in one direction and then overcorrect in the opposite one). However, these valid observations do not invalidate our basic moral sense that not all legally entitled speech is morally appropriate. We argue about where the boundaries lie and grant that the lack of clarity may lead people to cross the line—however, in the process we, in effect, acknowledge the premise that some self-restraint is morally commendable.
Gay Rights: Cakes, Flower Arrangements, and Makeup Artists
The question of whether a devout Christian baker can legally refuse to make a wedding cake for a gay couple, especially with such an inscription as “For the marriage of Jim and John,” provides an illuminating example of the issue at hand.
In 2012, Jack Phillips, the owner of Masterpiece Cakeshop, declined on religious grounds to bake a wedding cake for Dave Mullins and Charlie Craig’s wedding reception in Colorado before their marriage in Massachusetts. According to Phillips, he told the couple he would make them other baked goods, but he “just can’t make a cake for a same-sex wedding.”16 Although Colorado did not recognize same-sex marriage at the time, the Colorado Anti-Discrimination Act (CADA) was in place, which includes discrimination based on sexual orientation. An administrative law judge ruled in favor of Mullins and Craig, and in 2014 the Colorado Court of Appeals also sided with the couple. After Phillips’s appeal was denied by the Colorado Supreme Court, Phillips petitioned the US Supreme Court, which agreed to hear the case in 2017. In the meantime, rather than make cakes for both same-sex and opposite-sex couples, Phillips stopped making wedding cakes entirely, losing 40 percent of his business. In June 2018 the Supreme Court ruled 7–2 in favor of Phillips. However, the decision was narrowly based and did not clearly address whether First Amendment rights allow businesses to refuse service to gay couples on religious grounds. Instead, the Court offered a largely procedural, case-specific ruling by finding that a member of the Colorado Court of Appeals expressed religious hostility toward Phillips.17
One should note that Phillips’s refusal of service was not an isolated incident. Aside from Phillips himself admitting that he had refused service to other gay couples in the past,18 there was another nationally recognized case regarding an Oregon bakery whose owner refused to make a cake for a same-sex couple. The couple owning the bakery was ordered to pay $135,000 in damages, to be collected when the ongoing appeals process is over.19
Furthermore, the issue at hand is actually broader. For example, the Supreme Court in Washington state heard a case in which a florist refused to make floral arrangements—regardless of whether the designs were hers—for a gay couple’s wedding because it went against her religious beliefs. According to the florist, Baronelle Stutzman, making floral arrangements for a same-sex wedding, or allowing employees of her store to do so, amounts to participation in, and therefore endorsement of, same-sex marriage. She would, however, be willing to sell gay people bulk flowers and raw materials.20 The case has similarities to that of Jack Phillips—just as Phillips offered other baked goods, the florist offered to sell individual or prearranged flowers to the couple.21 Also, like Phillips, since the lawsuit began, she has stopped selling flowers for all weddings.22
As I see it, many who read about these cases have conflicting judgments. On the one hand, they realize that law prohibits people who serve the public from discriminating on the basis of race, religion, and—most agree—sexual orientation. On the other hand, they sense that compelling behavior that violates someone’s religious conscience is not a matter one should consider lightly. Moreover, they wonder why gay people would wish to force someone who treats them as abject sinners to make them a wedding cake. Would a gay couple truly want flowers at their wedding from someone they feel hates them? Why give their business to such people? Various attempts have been made to resolve this conflict between the legal and the social/moral intuition. Those are next briefly reviewed and my suggestion added.
We allow people to discriminate (or do not consider it discrimination) if the differences made are essential for religious expression. Thus, the law allows synagogues to retain only Jews as rabbis. With respect to the Masterpiece Cakeshop case, the Colorado Court of Appeals points out that although CADA has an exemption for “places primarily used for religious purposes,” the primary function of Masterpiece is not for religious purposes, and therefore it is not exempt.23 The appeals court also draws a parallel between the case at hand and a challenge to the Civil Rights Act of 1964 in which a district court ruled that religious beliefs do not give someone the right to discriminate on the basis of race: “Undoubtedly [the] defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This Court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishment upon the ground that to do so would violate his sacred religious beliefs.”24
According to the Colorado Court of Appeals: “CADA does not compel Masterpiece to support or endorse any particular religious views. The law merely prohibits Masterpiece from discriminating against potential customers on account of their sexual orientation.”25 It further noted that “CADA does not prevent Masterpiece from posting a disclaimer in the store or on the internet, indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by CADA.”26 In the terms used here, making a business owner serve people in ways that he considers a gross violation of his faith is not exacting a pound of flesh; violating his strongly held beliefs is trumped by the commitment to equality and justice. To yield on these matters would amount to giving up a whole lot more than a pound; it would compromise basic rights and principles.27
On the other hand, some are concerned about protection of religious beliefs and practices. Kerri Kupec, one of the florist’s lawyers, posited that “Under this kind of rationale, that’s happening in Washington state, a gay singer could be forced by the government to perform at a religious conference that is promoting marriage as a man-woman union.”28 Richard Epstein, a law professor at New York University, maintains that it is the American Left that is intolerant: “The people who are bigots are on the other side.”29 Epstein supports a religious exemption for business owners in cases like these and believes that the free market takes care of the problem of discrimination against gay individuals.30 Viewed this way, the issue of exacting a pound of flesh does not arise, because those who seek to force service on those who hold that such service violates their beliefs do not have a case to begin with.
A Form of Speech?
According to Phillips, wedding cakes have an inherent “communicative nature,” which conveys celebration.31 If forced to make a cake for a gay couple’s wedding celebration, he would be compelled to make a statement, or speech, he does not feel comfortable making.32 According to Phillips’s lawyers: “The wedding cakes that Jack designs and creates . . . are very clearly a method of communication. . . . Jack could not just bake a cake and pretend it did not mean anything.”33 The appeals court recognized that “a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated.”34 However, this was a nonissue for the court because Phillips refused to serve the couple without discussing the design of the cake or any written inscriptions the couple may have wanted. There was no communicative content.35
In contrast to this opinion, the Department of Justice (DOJ) stated in a 2017 amicus brief on behalf of Jack Phillips that “A custom wedding cake is a form of expression,”36 and “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”37
The DOJ’s opinion is thus in line with the arguments of Phillips’s lawyers, who insist that the Colorado Court of Appeals “considered the wrong question”38 when it determined that “designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings.”39 They contend that the proper question is whether the wedding cakes made by Phillips qualify as “expressive conduct,” whereas the Colorado Court of Appeals “looked for expression only in Phillips’s decision not to create a wedding cake celebrating a same-sex marriage”40 (emphasis added). The DOJ holds that Phillips’s cakes do qualify as expressive conduct and thus the Free Speech clause applies in this case. One could limit this claim to customers’ requests to add a specific inscription that could be read as an explicit endorsement of gay marriage; this might be considered a pound of flesh—but not just making cakes or otherwise serving people. In other words, requiring a cake maker to bake a blank cake is acceptable, but requiring one to write an inscription supportive of the marriage is not. I will show below more compelling ways to discern what constitutes a fair demand and when making such demands becomes analogous to exacting a pound of flesh.
Still another way out of the box is for businesses to post their religious preferences and thus avoid the conflict altogether. According to Andrew Koppelman, law professor at Northwestern University, “The most sensible reconciliation of the tension would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others.”41 He elaborates, asserting: “If proprietors who object to same-sex marriage could make their views known, then even if they have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. On the contrary, same-sex couples will almost all want nothing to do with them. Announcements of the proprietor’s views will not absolutely guarantee that service will not be demanded, but it will make such demands rare.”42 The issue with Koppelman’s solution is that several states prohibit businesses from displaying announcements that, in effect, assert that a protected class is unwelcome. In the case of Jack Phillips, the Colorado Court of Appeals stated that a business cannot post a notice stating intent to refuse service to those who participate in a same-sex marriage or stating that those who participate in a same-sex marriage are not welcome. On the other hand, in the case of a photographer in New Mexico, the New Mexico Supreme Court held: “Businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”43 Koppelman himself is doubtful that the Supreme Court would allow such a solution to stand, as it may be understood as an explicit form of discrimination.
Notching the Slope
A good part of the give-and-take on the issues at hand, including the line of questioning the Supreme Court judges engaged in when they heard the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2017, included weighing in on what constitutes a pound of flesh versus a fair demand. The questions of some judges seem to indicate that while they thought allowing refusal of services might be acceptable under some limited conditions, they feared such exceptions would open the floodgates to widespread discrimination. The issue hence is, How can one ensure that such an opening will not be excessive?
This challenge is a very familiar one, often referred to as the slippery slope. One recognizes that some limited change might well be called for, but one fears that a shift from the status quo will lead to the lower—wrong—end of a deep slope. The argument in the case at hand takes two major forms. One, if bakers can refuse to make cakes, should other business owners be allowed to refuse their services? As Washington Supreme Court justice Mary Yu asked, “Is it the landscape architect next? The barber?”44 According to James Oleske, “proposed exemptions would not only allow businesses to withhold wedding-day services, but would also ‘threaten to subject same-sex couples to discrimination in employment, public accommodations, and housing across time and in situations far removed from the marriage celebration.’”45
The second slope concerns the implications of refusing service to gay people on potential discrimination against other groups of people, such as African Americans. According to Washington attorney general Bob Ferguson, “once you go down the road of allowing this exception . . . you can refuse service to an interracial couple based on your religious beliefs.”46
As I have suggested previously, if one adheres to this position, then any changes, however justified, must be avoided. I hold that instead one needs to find places to notch the slope, to ensure that one can move to a limited extent but not beyond a point clearly marked. What are the appropriate markers? One possible criterion that courts often use in other contexts concerns the scope of the harm. If a refusal to sell cakes by one shop inflicts very limited harm, it should be tolerated. This might be said to be the case as cakes are readily available from other sources, especially in this era of e-commerce. Wedding cakes are ordered way ahead of time and hence differ, say, from an immediate need like medication. Also, the cakes are merely one marginal feature of wedding ceremonies compared to that of exchanging vows, wedding bands, and so on. The same holds for the services of the florist and makeup artists—but not for those of lodging, catering, employment, credit, transportation, not to mention medical treatment. One may say that there are plenty of eateries and hence there is no harm in rejecting food service. However, there are many conditions under which this is not the case—for instance, when seeking food late at night or in isolated areas or when one has special dietary requirements such as halal, kosher, vegan, gluten free, diabetic, or infant-friendly. If service is refused in the one place in town that provides these foods at a particular time of day, one may well have difficulties finding another. The same holds for lodging; denial of service late in the day, on a holiday eve, at a major sports or musical event, and so on may impose considerable harm on a person seeking to find an alternative.
The US Supreme Court declined to hear a challenge to the Protecting Freedom of Conscience from Government Discrimination Act, a Mississippi law that critics argue “lets government clerks refuse to issue same-sex marriage licenses and lets adoption and foster-care organizations decline to place children with LGBT families.”47 As I see it, this clearly is on the wrong side of the “notch.”
A counterargument is that at issue is not the provision of service per se but the normative principle regulating the provision. The harm, one may well argue, is not to the supply of cakes but to the principle that all people are to be treated equally. To push the point: a gay couple may well not want a wedding cake from someone who strongly disapproves of their conduct—and may even think that a service obtained through coercive measures of the law would mar their happy celebration and that they may as well feed the cake to the dogs—but still insist on the service, to uphold the nondiscrimination principle and to stave off pernicious precedents. I refer to such concerns as “symbolic,” by which I mean that the issue is not the object at hand but what it stands for.
If one believes that to compromise even at the margin weakens the legal principle, then the moral precept of not asking for a pound of flesh does not apply because to allow for exceptions, even if they cause little or no substantive harm, violates the principle involved. However, if one holds that insisting on the pound of flesh undermines support for the legal principle, because it makes its advocates look like rabid ideologues lacking in sympathy, one would favor making exceptions when the refusal causes little or no substantive harm.
The following case, discussed in the Washington Post,48 provides an example of how North Carolina reached a middle-ground solution that tries to respect both religious and LGBT rights. In 2014, Gayle Myrick resigned as a magistrate in North Carolina because she was unwilling to perform civil marriages for same-sex couples. Myrick’s supervisor suggested that Myrick could be excused from performing marriages, but someone higher up said that Myrick’s schedule could not accommodate such a change. Myrick says she “didn’t want to stop anyone from getting married” but knew her “religious convictions would not allow [her] to perform [same-sex] marriages personally.”49 She reached a settlement with the government after a federal judge sided with her. North Carolina has since passed a law that allows magistrates to excuse themselves from performing marriages if they have religious objections but at the same time stipulates that other magistrates—willing to perform marriages for same-sex couples—be available in such a case.50
One should recognize the cardinal communitarian observation that we are not just rights-bearing individuals, out to carry those individual rights wherever they will take us, but also members of communities. And that such membership entails a measure of sympathy for people whose profound beliefs we strongly disagree with. We should recognize that they hold their beliefs just as strongly as we hold ours. This is not to suggest moral equivalency but to help appreciate that those who hold values we consider morally flawed did not choose these values but were brought up to believe in them, and that those values were reinforced by their religious leaders and those they personally know and, until very recently, were reaffirmed in the law of the land! One ought to recall that it was President Bill Clinton who, in 1996, signed the Defense of Marriage Act, which defined marriage as the union of a man and woman. And that even when President Barack Obama came to office in 2009, he was reluctant to support gay marriage. Our fellow community members need to be helped to transition and given some time to adapt—as long as the harm to those who grant them some leeway is minimal or basically symbolic and does not undermine the legal principle involved, because clearly delineated exceptions are carved out.
David Brooks takes this communitarian approach to a much higher level and suggests that the gay couple should have said to the baker: “Fine, we won’t compel you to do something you believe violates your sacred principles. But we would like to hire you to bake other cakes for us. We would like to invite you into our home for dinner and bake with you, so you can see our marital love, and so we can understand your values. You still may not agree with us, after all this, but at least we’ll understand each other better and we can live more fully in our community.”51 Although Brooks carries the communitarian idea several steps further than I do, the thesis he draws on is the same. Confronting and exercising all the legal rights one may be entitled to is not always the preferred way to conduct oneself, especially if one cares about the other and the community.
A challenge the patriotic movement faces is how to deal with people with conflicting core values. The more the movement is able to shore up the sense of overarching community, and the sharing of core values in areas other than those in conflict, the more one must expect that cultural wars will be contained. Privatizing some issues will limit the realm of conflict. Nevertheless, culture wars remain an important challenge to the patriotic movement. Calling on all sides to impose a measure of self-restraint and not to push their claims to the point they undermine the common good will mitigate the cultural wars.