The Walls Are Strong, but the Cannon Fire Is Real

The longer our nation fights the free speech and religious freedom culture wars, the more convinced I am that two things are true at once. First, far-left attacks on social conservative free speech and religious liberty have mainly resulted in a legal rout of the left and the strengthening of the First Amendment. Key American freedoms are less fragile than they were even a decade ago. 

Second, the attacks are still very real. There is a relentless far-left attempt to undermine the First Amendment across a broad front. The existence of those attacks is deeply alarming to millions of social conservatives, and if we want to de-escalate conservative Christian concern, it’s not enough to tell Christians to chill out. Progressives should tell their most radical allies to cease fire. 

Two court cases illustrate this dynamic perfectly. The first case comes from the 6th Circuit Court of Appeals. My friends and former colleagues at the Alliance Defending Freedom won an important victory for free speech and academic freedom. The case is called Meriwether v. Hartop, and it dealt with one of the most hot-button of all cultural flashpoints, preferred pronouns. It’s not necessary to dive into all the twists and turns of the case. The bottom line facts are simple. Shawnee State University demanded that philosophy professor Nicholas Meriwether use students’ preferred pronouns. Meriwether objected on both free speech and religious liberty grounds. Litigation ensued. 

Writing for a unanimous majority, Judge Amul Thapar carefully and deliberately articulated three primary legal positions. First, public university professors enjoy First Amendment protection in their speech on matters of public concern even when that speech is “on the job”:

[O]ur court has rejected as “totally unpersuasive” “the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” And we have recognized that “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.” Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship. (Citations omitted).

Second, under the alleged facts, the university’s preferred pronoun policy violated Meriwether’s right to free speech. He was speaking on a matter of public concern, and public employee speech on matters of public concern has long enjoyed considerable constitutional protection. Moreover, the very fact that he was dissenting from the academic mainstream enhanced his free speech argument:

Indeed, the premise that gender identity is an idea “embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”

Third, the 6th Circuit also found that Professor Meriwether adequately stated a claim that the university violated his right to free exercise of religion, in part because school officials expressed actual animosity against his religious beliefs. The evidence of animus was considerable:

Start with one of the individuals Meriwether alleges was involved in the action against him—Department Chair Jennifer Pauley. Meriwether came to her to discuss his religious concerns about the new policy. Pauley might have responded with tolerance, or at least neutral objectivity. She did not. Instead, she remarked that religion “oppresses students” and said that even its “presence” at universities is “counterproductive.” Christians in particular, she said, were “primarily motivated out of fear.” In her view, “Christian doctrines … should not be taught.” And for good measure, she added that Christian professors “should be banned” from teaching courses on Christianity—knowing that Meriwether had done so for decades. Neutral and non-hostile? As alleged, no. In fact, it has the makings of the very religious intolerances that “gave concern to those who drafted the Free Exercise Clause.” (Citations omitted.)

I can’t even tell you how many times I saw the same pattern in my legal career. An aggressive university or aggressive government agency would take direct aim at a social conservative client (not always Christian), and the university would not only lose, it would also sometimes set a precedent that built the fortress of free speech or religious liberty larger and stronger. 

In other words, the siege—the attack on the First Amendment—is very real, but legal defenders of free speech have often been able to repel it with increasing ease. 

For the next illustration of the dynamic, let’s turn to a brand new lawsuit filed by 33 current and former LGBT students at Christian educational institutions against the Department of Education, seeking to strip the religious exemption from Title IX (which prohibits sex discrimination at federally funded educational programs) and thus require religious educational institutions end religious prohibitions on LGBT conduct or lose federal funding. 

The plaintiffs filed their case in the U.S.  District Court for the District of Oregon, Eugene Division (I smell forum shopping), but even if the plaintiffs pull the most favorable trial court judge, their case has no real chance of success. Existing precedent is resolutely against the plaintiffs, and it is overwhelmingly likely that their case will simply result in yet another decision strengthening the citadel of freedom. 

At the same time, the intent of the case and the underlying arguments are troubling. No one required the student-plaintiffs to attend religious colleges. Our nation does not lack for institutions of higher education that enthusiastically affirm LGBT rights. Why seek to punish the few institutions that dissent from academic political and religious orthodoxy? 

In short, while it’s easy to identify when conservatives are exaggerating the threat of any given lawsuit or the true peril to the existence of their institutions, it’s still true that parts of the left are firing legal cannonballs at the citadel, and the fact that the citadel’s walls are strong doesn’t render the cannon fire any less aggressive. 

One more thing …

I was going to write an entire newsletter about the whole concept of the “vaccine passport” and potential limits on the economic freedom of unvaccinated Americans, but then I realized I could state my position quickly and succinctly. So here it is: While I have no objection to creating an app-based proof of vaccination, the argument about imposing economic restrictions on the unvaccinated is premature, unrealistic, and thus unnecessarily divisive.

It’s premature because we don’t yet know what the world will look like when the vaccine is fully available. How much will vaccine hesitancy remain a problem? There’s an immense effort underway to reach skeptical communities. How well will it work? (There’s evidence hesitancy is declining.) Moreover, what will case counts look like? What will science say about whether we’ve reached herd immunity?

It’s unrealistic in part because much of the conversation raced immediately to the extremes. While there are certain industries that may reasonably believe that proof of vaccine is necessary for health and safety (the cruise industry, for example), there is little visible corporate or governmental appetite for broad national restrictions on economic activity for unvaccinated Americans. 

After all, tens of millions of unvaccinated Americans have been safely shopping throughout the pandemic. Will struggling businesses seek to limit their customer base, especially in the absence of demonstrated medical need? 

Moreover, the Biden administration has indicated that it’s leaving the matter to states and to the private sector:

On Monday, White House press secretary Jen Psaki told reporters that “there will be no centralized universal federal vaccinations database, and no federal mandate requiring everyone to obtain a single vaccination credential.” Instead, the Biden administration has decided to leave it to the states and the private sector to figure this out, with the federal government setting some baseline guidance. As Andy Slavitt, a senior adviser to the White House’s Covid-19 response, told CNBC earlier in March, “The public will be more reluctant to get vaccinated if they feel like the government, the federal government is playing too much of a role in that.” Meanwhile, at least one governor, Florida’s Ron DeSantis, has pledged to ban businesses and venues in his state from using any vaccine passport system.

At the same time, the shock and outrage that any American business or institution would impose a vaccine requirement is a bit much. Vaccine requirements are a standard part of American life in a variety of contexts, and it would be surprising if the COVID vaccine didn’t simply become yet another necessary vaccine on the list. 

My thought is simple. Let’s take this step by step. Get the vaccine out as broadly as possible, work hard to overcome hesitancy (and in that context, government coercion could trigger counterproductive defiance), and then make judgments about vaccine requirements based on the specific industry and the specific facts on the ground. 

One last thing …

My trip to Mars remains far, far off. Yesterday SpaceX Starship Sn11 took off and landed … in a multitude of pieces. Here’s the footage (including a very cool shot of a dramatic launch in thick fog) and a detailed analysis. When, Elon? When shall I get to the Red Planet?