The core of the controversy, both legally and culturally, is the Supreme Court’s majority opinion in Planned Parenthood vs. Casey (1992), specifically the (in)famous line, authored by Justice Kennedy, that at the core of liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As many have pointed out — and as Macintyre well understood — this “sweet mystery of life” principle (as Justice Scalia scornfully characterized it) kicks the supporting struts out from under the rule of law, and makes it impossible to resolve rival moral visions except by imposition of power.

I spent a long time on the phone last night with a law professor at one of the country’s elite law schools. This professor is a practicing Christian, deeply closeted in the workplace; he is convinced that if his colleagues in academia knew of his faith, they would make it very hard for him. We made contact initially by e-mail — he is a reader of this blog — and last night, by phone. He agreed to speak with me about the Indiana situation on condition that I not identify him by name or by institution. I do know his identity, and when he tells me that he is “well-informed about the academy and the Supreme Court,” I assure you that from where he sits, and teaches, and from his CV, he is telling the truth.

I will call him Prof. Kingsfield, after the law professor in The Paper Chase. 

What prompted his reaching out to me? “I’m very worried,” he said, of events of the last week. “The constituency for religious liberty just isn’t there anymore.”

Like me, what unnerved Prof. Kingsfield is not so much the details of the Indiana law, but the way the overculture treated the law. “When a perfectly decent, pro-gay marriage religious liberty scholar like Doug Laycock, who is one of the best in the country — when what he says is distorted, you know how crazy it is.”

“Alasdair Macintyre is right,” he said. “It’s like a nuclear bomb went off, but in slow motion.” What he meant by this is that our culture has lost the ability to reason together, because too many of us want and believe radically incompatible things.

But only one side has the power. When I asked Kingsfield what most people outside elite legal and academic circles don’t understand about the way elites think, he said “there’s this radical incomprehension of religion.”

“They think religion is all about being happy-clappy and nice, or should be, so they don’t see any legitimate grounds for the clash,” he said. “They make so many errors, but they don’t want to listen.”

To elites in his circles, Kingsfield continued, “at best religion is something consenting adult should do behind closed doors. They don’t really understand that there’s a link between Sister Helen Prejean’s faith and the work she does on the death penalty. There’s a lot of looking down on flyover country, one middle America.

“The sad thing,” he said, “is that the old ways of aspiring to truth, seeing all knowledge as part of learning about the nature of reality, they don’t hold. It’s all about power. They’ve got cultural power, and think they should use it for good, but their idea of good is not anchored in anything. They’ve got a lot of power in courts and in politics and in education. Their job is to challenge people to think critically, but thinking critically means thinking like them. They really do think that they know so much more than anybody did before, and there is no point in listening to anybody else, because they have all the answers, and believe that they are good.”

On the conservative side, said Kingsfield, Republican politicians are abysmal at making a public case for why religious liberty is fundamental to American life.

“The fact that Mike Pence can’t articulate it, and Asa Hutchinson doesn’t care and can’t articulate it, is shocking,” Kingsfield said. “Huckabee gets it and Santorum gets it, but they’re marginal figures. Why can’t Republicans articulate this? We don’t have anybody who gets it and who can unite us. Barring that, the craven business community will drag the Republican Party along wherever the culture is leading, and lawyers, academics, and media will cheer because they can’t imagine that they might be wrong about any of it.”

Kingsfield said that the core of the controversy, both legally and culturally, is the Supreme Court’s majority opinion in Planned Parenthood vs. Casey (1992), specifically the (in)famous line, authored by Justice Kennedy, that at the core of liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As many have pointed out — and as Macintyre well understood — this “sweet mystery of life” principle (as Justice Scalia scornfully characterized it) kicks the supporting struts out from under the rule of law, and makes it impossible to resolve rival moral visions except by imposition of power.

“Autonomous self-definition is at the root of all this,” Prof. Kingsfield said. We are now at the point, he said, at which it is legitimate to ask if sexual autonomy is more important than the First Amendment.

The implications of the past week for small-o orthodox Christians — that is, those who hold to traditional Christian teaching on homosexuality and the nature of marriage — are broad. There is the legal dimension, and there is a cultural dimension, which Kingsfield sees (rightly, I think) as far more important.

First, the legal. Kingsfield said he reviewed Ross Douthat’s questions, and thinks they are a good framework for trying to figure out the road ahead.  I didn’t pin Kingsfield down on his specific answers to each of Douthat’s questions; we spent an hour and a half on the phone as it was, and I didn’t want to rob too much of his time. But I did take some notes about his general views.

“I read that list and I think it’s very useful,” Kingsfield said. “I think the bulwarks in terms of a parent’s right to raise a child, and to educate a child, are more durable than others.”

A college professor who is already tenured is probably safe. Those who aren’t tenured, are in danger. Those who are believed to be religious, or at least religious in ways the legal overculture believes constitutes bigotry, will likely never be hired. For example, the professor said, he was privy to the debate within a faculty hiring meeting in which the candidacy of a liberal Christian was discussed. Though the candidate appeared in every sense to be quite liberal in her views, the fact that she was an open Christian prompted discussion as to whether or not the university would be hiring a “fundamentalist.”

“I think in terms of hiring people [within the academy], that’s quite acceptable in people’s minds,” said Kingsfield. (And, I would add, not just within the academy.)

Kingsfield says that religious schools will have a substantial degree of protection in the law, at least for a while, to the extent that the school can be described as a part of a particular church, with clear doctrines that it expects its members to live by and uphold.

“There’s going to be some question as to whether this applies to parachurch charities, schools, shelters, things like that,” he says. “If you’re a church you’re pretty much protected in who you hire, pay, and so forth. If you are a school and are careful only to hire people of your denomination, you’re probably okay, though there are questions about the person who says ‘I’m a good Catholic, though I’m gay.’

“It could be that if bishop certifies that you are a Catholic in good standing, you’re okay,” he continued. “Catholics have a clear line of what constitutes the visible church, and what it means to be Catholic. So do the Orthodox. But if you are an Evangelical church that has a more general statement of faith, and depends on a shared assumption that its non-married members will live a chaste life, I’m not so sure that’s going to hold.”

For hierarchical, doctrinally well-defined churches, much depends legally on what the bishops do. “To the extent that some of the Catholic bishops want to punt, like the New Jersey bishop [Bootkoski of Metuchen] did with that schoolteacher [Patricia Jannuzzi], I’m not sure at all what happens to them.”

(Bootkoski arranged for Jannuzzi to be fired from her position teaching at a Catholic school in his diocese after a Facebook post in which she stated Catholic teaching on homosexuality and the family, but did so intemperately. “The teacher’s comments were disturbing and do not reflect the Church’s teachings of acceptance,” the bishop said in a public statement. From what Kingsfield said, this might well have laid down a marker making it hard for the Diocese to defend itself in court in future challenges over hiring.)

“If you’re a Catholic in San Francisco, in a crazy social environment, you’re in good shape, because you have [Archbishop] Salvatore Cordileone, who is going to hold the line. In Philadelphia, you have Archbishop Chaput. But if you’re in Indiana or New Jersey, you’re going to have trouble. There’s a way in which the vigilance of the bishop in governing the local church will matter in court. If the bishops won’t stand up for [orthodox Christian teaching], who will?”

“Even Reformation churches that have specific doctrines that they police, they’ll probably be okay,” Kingsfield continued. “But again, if you define yourselves by a very general statement, even if your ethos is culturally conservative, it’s going to be harder. The low church people may wind up in a position where they have to start policing their churches much more closely in terms of doctrine.”

This could well push religious schools into making hiring decisions that they’re not comfortable with. Say, for example, that a Catholic school had no trouble hiring a chemistry teacher who openly advocated for same-sex marriage, because that teacher was in the school to teach chemistry. His views on gay marriage are irrelevant, in practice. The school may have a different standard for hiring its religion teachers, or its social studies teachers, requiring them to be more doctrinally in line with the Church. But that is a distinction that may not hold up in court under challenge, Kingsfield said.

The result could be that religious schools have to start policing orthodoxy in terms of all their hires — a situation imposing standards far more strict than many schools may wish to live by, but which may be necessary to protect the school’s legal interests.

Kingsfield said homeschooling, and homeschooling-ish things (e.g., co-ops), are going to become increasingly important to orthodox Christians, especially as they see established religious schools folding on this issue.

Businesses, however, are going to have a very hard time resisting what’s coming. Not that they would try. “The big companies have already gone over,” said Kingsfield.

“Most anti-discrimination laws have a certain cut off – they don’t apply if you have 15 employees or less,” he said. “You could have an independent, loosely affiliated network of artisans, working together. If you can refer people to others within the network, that could work. You won’t be able to scale up, but that’s not such a bad thing.”

Kingsfield said religious colleges and universities are going to have to think hard about their identities.

“Colleges that don’t receive federal funding – Hillsdale and Grove City are two I can think of – are going to be in better position, because federal regulations force a lot of crazy stuff on you,” he said. “I think it would be really wise for small religious institutions to think hard if they can cut the cord of federal funding and can find wealthy donors to step in.”

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