Against Conservative Cultural Defeatism

We face a challenge, not a crisis, and there is no need to turn our back on our nation’s founding principles to overcome it.

One of the strange realities of the current fight over the direction of the conservative movement — double down on classical liberalism or reject many of its tenets in favor of a version of Christian statism? — is that it is taking place in the presence of an unjustified sense of despair and defeat. There is a wholly incorrect sense that the previous approach to the hot-button cultural issues of our day, centered around appeals to constitutional rights conducted (mostly) with civility and dignity, has failed. The argument is, in short: We lose, so we must change.

This is false. And one need only look at the news of the last month to see that it’s false. Even as entire quarters of the intellectual Right throw their hands up in cultural despair, an immense, contiguous American geographic region is passing the most significant wave of pro-life legislation since Roe. And this legislation follows a previous wave of pro-life laws, passed during the Obama administration, that resulted in more abortion regulation than at any other time since Roe.

But let’s step back and take a larger look at both life and religious liberty, the two areas of most concern to cultural conservatives. Let’s step back an entire generation, to 1981, the beginning of the Reagan presidency.

I don’t pick that year at random; it marked two grim milestones. The first and by far most important was that the abortion rate hit its post-Roe high, a horrifying toll of 29.3 abortions per 1,000 women. The second was that religious liberty and free association were at grave legal risk. After years of Warren Court jurisprudence, SCOTUS was hearing arguments in a case called Widmar v. Vincent to determine whether the Establishment Clause actually prohibited a university from permitting a Christian student group to use empty classrooms or empty university facilities for religious worship or teaching. This was a threat to liberty far graver than anything the occasional student mob at Berkeley or Middlebury could pose.

To compound the challenge, there existed no truly functional cultural-conservative legal or political infrastructure to counter these developments. The liberalization of mainline denominations meant that countless Christians were making hard personal choices to change churches, and to the extent a Protestant political establishment existed, it backed social liberalism. Even the Southern Baptist Church initially applauded Roe.

What happened over the course of the next generation was truly astonishing. On December 8, 1981, the Supreme Court handed down the Widmar decision and ruled overwhelmingly in favor of the Christian student group, granting it equal access to campus facilities. In 1982, Yale law students founded the Federalist Society. In the years that followed, Christian leaders founded Christian legal organizations, like my former employers at the Alliance Defending Freedom and the American Center for Law and Justice, and they got busy formulating and prosecuting one of the most successful litigation strategies in modern American history.

In short order, it was established that Christian student groups had equal access to universities, equal access to university student-fee funding, and equal access to high schools, middle schools, and elementary schools. Free-speech jurisprudence (combined with the Religious Freedom Restoration Act) rectified many of the worst ramifications of Justice Scalia’s terrible free-exercise opinion in Employment Division v. Smith, to the point where any person visiting an American college campus or an American high school (especially in the South) is going to find a large, vibrant group of Christians worshiping God in the halls.

And in the battle for life, activists exercising the same rights of free speech and freedom of association that were carved in judicial granite in the 1980s and 1990s began the long, patient process of winning over hearts and minds. The abortion rate began to drop. The rate dropped throughout the Reagan, first Bush, Clinton, second Bush, and Obama administrations. It is now lower than it was when Roe was decided. The decline represents millions of lives saved, and while it has many causes, the presence and persistence of the pro-life movement is an important one.

What about college campuses? From the onset of the modern culture war, the campus has represented the epicenter of illiberal leftist power. In the late 1980s and into the 1990s, campuses passed rules and regulations expressly designed to suppress speech. By the 2000s, Foundation for Individual Rights in Education surveys of hundreds of campuses (full disclosure: I’m a former president of FIRE) revealed that more than 70 percent of college campuses had one or more “red light” policies that clearly restricted constitutionally protected expression.

In response, civil libertarians on the left and right launched a legal and political onslaught. State legislatures began passing campus free-speech acts, and students brought lawsuits in virtually every federal circuit. Every time a court considered a speech code on the merits, the First Amendment prevailed. Now, the number of surveyed schools with speech codes has declined for eleven consecutive years. Only 28.5 percent of such schools have speech codes. And the speech codes that do exist are largely dead-letter policies, still on the books but never enforced.

Does this sound like retreat and defeat to you?

It is very true that we continue to face cultural challenges, often in the form of public shaming and corporate activism, but it’s important to remember that those who shame and boycott are exercising their own constitutionally protected rights. The answer to their bad speech isn’t the exact kind of government censorship and control that civil libertarians spent three decades successfully fighting. Instead, it’s personal courage. It’s better speech. It’s choosing to withstand the mob.

(One of the many ironies of this moment is that many conservatives look to the Trump administration as the tough guardian of American Christianity, even as Trump’s own vice president did more to enable corporate intimidation than virtually any living American. When all he had to do was endure a news cycle of negative coverage after Indiana passed its own version of the Religious Freedom Restoration Act, he caved. He retreated. He taught the corporate Left how to win.)

Yes, the Left wins many fights. No question. It has enormous cultural power. But the idea that the Right is weak — and that classical liberalism is a dead end, a source of that weakness — is pure fiction. How do we know? Because in the last 40 years, cultural conservatives have worked within classical liberalism to save lives, change the law, empower a new generation of young Christians, and create enduring institutions designed to protect liberty. We face a challenge, not a crisis, and there is no need to turn our back on our nation’s founding principles to overcome it. By staying the course, we can and will prevail in the marketplace of American ideas.