The Instruments of the Law

Pieter Breughel the Younger, The Village Lawyer, ca. 1621, Museum of Fine Arts, Ghent.

Is it possible to be simultaneously astonished and yet also unsurprised? I can report that it is, for I felt exactly that odd combination of sensations while reading Ross Douthat’s recent account of the “Post-Protestant Gnosticism” that currently dominates the American public sphere, a regime that Douthat describes as the “new hegemon.” Here is the core of the account; I have italicized passages on which I will focus.

Crucially, the ascendant gnosticism influences society in something close to [Jacques] Maritain’s model. It wields its power primarily through the cultural influence of nonpolitical institutions, and only secondarily through direct lawmaking or rulemaking. Its rule is firm within its own institutional territory but more limited and moderated in the political sphere writ large. Where it directly shapes the interpretation of laws, it does so through “vivifying inspiration” rather than ecclesial imposition. Gnostic values pervade the key rulings of a figure such as Anthony Kennedy, for instance, without there having been some explicit gnostic religious edict that the Catholic Kennedy was bound to follow. Likewise, there has been no central committee of wokeness, no progressive Holy Office, driving the rolling reinterpretation of the Civil Rights Act.

At the same time, the new hegemon is tolerant of religious difference, allowing conservative forms of Christianity to persist in the same way the old Christian establishment allowed America’s various heresies to flourish. It simply sets certain limits on their freedom…

What is bewildering here, even disorienting, is the suggestion that the gnostic regime governs primarily through “cultural influence” rather than the coercive instruments of the law. That view is entirely unmoored from the verifiable facts of legal and political life in the United States over the past decade or so. Indeed, as I explain shortly, it is entirely unmoored from the verifiable facts of legal and political life in the United States over the past week or so. It has been acutely observed that liberalism generates “white legends” about its own respect for the autonomy of the governed, while generating “black legends” about the inherently coercive, indeed authoritarian, nature of competing political regimes. But here we have the strange spectacle of a white legend generated by a Catholic commentator on behalf of a gnostic regime, explicitly said to have attained hegemonic status.

Yet on another level the suggestion is entirely unsurprising. It seems to stem from a misconception, common among non-lawyers, about how law works — a misconception rooted in ignorance of the variety of legal instruments a governing regime can use to pressure, hamper, and limit views or groups it disfavors. The non-lawyer’s conception of legal “coercion” is typically based on a misleading paradigm, the direct application of violence. In fact coercion is a spectrum, not an on-off switch, and the law uses a large and diverse set of tools to induce behavior desired by those who wield the tools. Sending agents of the state with guns to enforce orders is rarely how the law proceeds, and in some sense represents a failure of the system, a confession that the use of the other tools was insufficiently artful. At the same time, the agents-with-guns paradigm  causes the nonlawyer to overlook that actual coercion can be effected by a governing regime indirectly as well as directly, through the tacit encouragement of “private” groups wielding coercive force or intimidation tactics against disfavored third parties, whom the regime then more or less deliberately fails to protect, through the selective under-enforcement of law.

Over the past decade or so, at an increasing tempo, all of these instruments of the law, ranging from indirect and subtle forms of pressure to direct coercive lawmaking, have been wielded by the gnostic regime to induce desired behavior on the part of recalcitrant institutions, views and persons in the public sphere. Consider some examples:

Funding. One of the main tools the federal government uses to get its way is funding, through a variety of explicit grants and through implicit expenditures in the tax code, which in effect subsidizes certain groups and activities with tax exemptions and deductions. To threaten to cut off such funds is to threaten the institutional life of disfavored groups or views. Which is why in 2015 a pronounced chill went through the world of Christian nonprofits, including colleges and universities, during the oral argument in Obergefell v. Hodges, when Justice Samuel Alito asked  the Solicitor General, Don Verilli, whether refusal to recognize same-sex marriages might be deemed grounds for revoking the tax exemptions of such institutions. Verilli could have disclaimed any such intention, or merely ducked the question. Instead he replied: “[I]t’s certainly going to be an issue…. I don’t deny that, Justice Alito. It is going to be an issue.” The threat was unmistakable.

“Guidance.” Pace Douthat, there certainly is “a progressive Holy Office driving rolling reinterpretation” of the civil rights laws. In the past decade or so, it has called itself the Office for Civil Rights within the Department of Education, and its Grand Inquisitrix has been one Catherine Lhamon, the office’s head under each of the past two Democratic administrations. During the second Obama administration  — in retrospect, a key inflection point in American public life, at which the gnostic regime consolidated itself and became increasingly aggressive  — OCR used “guidances,” policy statements and official advice about how statutes and regulations should be interpreted, to implicitly threaten local school boards as well as colleges and universities with federal funding cutoffs. The aim of such guidances was to require, among other things, transgender student access to bathrooms, locker rooms and other school facilities. In the Biden administration, the same office used guidance to pressure schools into allowing transgender students to participate in womens’ sports. The point of using guidances in this way is their in terrorem effect; although in theory guidances are not binding, the targets typically calculate that it is better to comply than to take their chances in court. This is not to say guidances have no legitimate uses, but it is to say that they are one of the main instruments that the gnostic hegemon has used to enforce its precepts on recalcitrant bodies.

Selective under-enforcement. Douthat’s assumption seems to be that the governing regime and its actions, or failures to act, have nothing to do with the remarkable events since the evening of May 2, 2022, when the draft decision in Dobbs v. Jackson Womens’ Health Organization, overruling Roe v. Wade, was leaked to the public. The crowds descending upon the homes of Supreme Court Justices in an attempt to sway the outcome in Dobbs, currently under consideration, are seemingly off the viewscreen for Douthat (although his essay was published on May 11). But the very existence of those crowds is in part a consequence of the selective under-enforcement of the law, in effect giving public license to private intimidation. Even “peaceful” protest directed at the Justices’ homes is very arguably illegal under federal law, yet to date little has been done to prevent it. Indeed it received quasi-official endorsement by the administration in a series of ambiguous statements by spokespersons such as Jen Psaki. Although the Attorney General belatedly said that federal law enforcement officers would provide security for the Justices, he has shown no willingness to enforce the law against the crowds themselves, despite having issued stern warnings that the full power of federal law would be applied to parents speaking out at local school board meetings — because, as the Attorney General then put it, “threats against public servants are not only illegal, they run counter to our nation’s core values.” Apparently not all public servants are included, and certainly not the Justices of the Supreme Court. As the Court cautioned long ago, the selective application and enforcement of law “with an evil eye and an unequal hand,” targeting disfavored groups, can amount to a “denial of equal justice.” How much the more is this true of selective enforcement that licenses personal intimidation of the Justices themselves, in pending cases.

Legal interpretation. Finally, and toward the harder end of the spectrum of coercion, one cannot pass over in silence Douthat’s very odd claim that the prevailing gnosticism shapes legal interpretation through “vivifying inspiration” rather than “ecclesial imposition.” As Douthat’s claim specifically invokes the specter of Anthony Kennedy, it seems fair to recall the decisions in United States v. Windsor and Obergefell v. Hodges, which in the space of a couple of years legalized and constitutionalized same sex marriage, and which were both authored by Kennedy. The day before Windsor was decided in 2013, only twelve states allowed any form of same-sex marriage, and federal law contained a Defense of Marriage Act. The day after Obergefell was decided, a mere two years later, the Supreme Court had declared it the constitutional law of the land that “liberty” and “equality” required same-sex couples to be allowed to to participate in a major secular sacrament of the civic order. In the interim, a number of states had liberalized their marriage laws, but in many cases this happened due to the orders of lower courts and state courts; other states attempted to defend traditional marriage with constitutional amendments, invalidated by Obergefell. Supreme Court decisions are by unwritten convention respected and enforced by the agents of the federal government and the states — at least when they accord with the equally unwritten constitution of the gnostic regime. If this is not “ecclesial imposition” by the priests of the gnostic law, one struggles to understand what would be.

Equally striking and puzzling is Douthat’s complete neglect of the Supreme Court’s 2020 decision in Bostock v. Clayton County — authored by Justice Neil Gorsuch, one of the Court’s most self-conscious proponents of originalism — reading the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 to encompass sexual orientation and gender identity. Bostock was a particularly aggressive form of the very same “rolling reinterpretation” of the civil rights laws that Douthat claims does not occur; it was immediately invoked by the Biden administration to support its guidances under other civil rights laws.

So too, Douthat says nothing at all about the contraceptive mandate that the Obama administration imposed, in various iterations, on the Little Sisters of the Poor and other religious institutions. This was not “vivifying inspiration” or “cultural influence”; it was straight coercive law. After almost a decade of regulatory proceedings and litigation, and after regulatory support from the Trump administration that was, however, immediately tied up in the courts, the Little Sisters won a partial victory at the Supreme Court in 2020, yet the case was remanded to the lower courts for further proceedings.

Justice delayed is justice denied. The saga of the Little Sisters of the Poor illustrates that under the gnostic regime, protracted legal process is itself the punishment. As others have observed, “[t]he repeated pattern in cases involving abortion, gay rights, religious liberty, and the presence of religion in the public square is that when the conservative position wins, it often is only on small steps forward that do not even resolve the parties’ dispute…. Yet when the conservative position loses, as in Obergefell or Bostock, it loses in a way that prevents the question from returning to the Supreme Court quickly, if at all.” (This was written before Dobbs, but abortion is no counterexample; the conservative legal movement has taken fifty years to get its main job done). Douthat says breezily that the new hegemon is “tolerant of religious difference.” Tolerance is essentially costless, however, when it is afforded slowly, grudgingly, and only by grace and favor that itself underscores the hegemon’s dominance.

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Let me clear about what I have not said. I have not said anything about whether these outcomes would or would not be justifiable under the legal precepts that would be applied by a rightly-ordered legal system. Relatedly, many of law’s tools have been perfected by the administrative state, and I have argued elsewhere that the administrative state is an indispensable political form for the promotion of the common good. The administrative state isn’t going anywhere, and if it has been misused, that is all the more reason to use it rightly; abusus non tollit usum. Nor, finally, have I said that the use of law to enforce the regime’s commitments cannot be opposed or even reversed by countervailing legal and political action, even at this late date. It remains true, however, that Douthat goes badly wrong when he suggests that the gnostic hegemon proceeds primarily by cultural influence rather than the full spectrum of law’s coercive and quasi-coercive instruments. In American public life, especially for the last decade and with accelerating force merely in the past few weeks, the hegemon has proudly displayed its instruments for all to see.

A final corollary: if Douthat is correct about the nature and aims of the current hegemon, and I think he is, and if I am correct that the hegemon has increasingly turned to a range of coercive and quasi-coercive tools to achieve those aims, then one cannot defend the current order with the tired trope that “after all, the current order is imperfect, but no alternative is better, because the alternatives are coercive.” That is equally or more true of the current order itself. The illusion that the current order embodies a principle of freedom, while alternatives are “authoritarian,” is a kind of mystification that must be dispelled if we are to see clearly. One can of course propose any number of different alternatives, including a restoration of a putatively authentic liberal order. But the effort to bring about that alternative will be just as disruptive as the effort to bring about any non-liberal alternatives. The horror of coercion, assuming heroically that any possible political regime could dispense with coercion, is not a defense of the current order, but a condemnation of it.