Law vs. the Human Heart

By any measure, the past year was nothing short of monumental: a new president dogged by allegations of foreign election meddling, a media class working in overdrive, a remaking of the federal bench, the routing of the Islamic State, and the end of the Clinton political dynasty, all concluded with the passing of a large tax cut.

But the most notable event of 2017 had surprisingly little to do with politics.  The imbroglio caused by Ronan Farrow's eye-opening exposé on Hollywood mogul Harvey Weinstein was the news story of the last twelve months.  Whatever your position or persuasion, low or high class, conservative or liberal, the fallout from the lurid Weinstein revelations was inescapable.  Major public figures, from actor Kevin Spacey to TV anchor Matt Lauer, justly lost their careers for their libidinous predacity.  Others, such as Senator Al Franken and humorist Garrison Keillor, were also forced into unemployment by more slippery accusations of impropriety.

The #MeToo movement, like any social reformist cause, is coming dangerously close to overstepping its bounds.  But it has unquestionably brought much needed scrutiny on powerful men who use their position to abuse vulnerable women.  "Among us, it seems, lives a class of men who call to mind Caligula and Elagabalus not only in their depravity, but in their grotesque sense of impunity," writes Claire Berlinski.  It was well past time to bring these men down a peg.

Notice how many of these power perverts are being outed.  There are no charges; there is no law.  A federal case was not made.  These men are losing their status through the soft power of public persuasion.

And when things go awry?  The same social pressure is used to correct rushed decisions.  Take the case of MSNBC contributor Sam Seder, who was fired from the network for making a bawdy joke about his daughter being raped by Roman Polanski.  Sick?  Undoubtedly.  But a sarcastic remark posted on Twitter nearly a decade ago that nobody actually found offensive?  Yes, and yes.

After public backlash and some behind-the-scenes cajoling, Seder was reinstated.  MSNBC president Phil Griffin admitted to making a mistake.  All parties moved past the unfortunate episode.

There's a lesson to glean from all of this.  The most important cultural event of last year has not inspired a demand for legislative remedies.  Rather, it has spurred action through public awareness.

Tocqueville, in his early studies of American democracy, wrote about this process:

When the members of an aristocratic community adopt a new opinion or conceive a new sentiment, they give it a station, as it were, beside themselves, upon the lofty platform where they stand; and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around.

Weinstein's sordid antics were exposed by his fellow elites.  Thankfully for the rest of us, Washington wasn't called to act.  As Tocqueville warned on increased government interference in the private sphere, "[n]o sooner does a government attempt to go beyond its political sphere and to enter upon this new track than it exercises, even unintentionally, an insupportable tyranny."

If only all our conflicts, big and small, could be solved so simply without appealing to the busybodies in Congress.

In their insatiable hunt for perfection, leftists will often call for legal solutions to right societal wrongs, avoiding the discomforting situation of speaking straight to their neighbors.  Lobbying for a law is an easy alternative to informal compromise.  Government is a detached actor – it often sees things mechanistically rather than humanly.

This past year, we saw the negative consequences of the state's over-intervention in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was argued before the Supreme Court.  In 2012, Jack Phillips, owner of Masterpiece Cakeshop, refused to design and bake a wedding cake for Charlie Craig and David Mullins, a same-sex couple.

Upon being informed by Phillips that his deeply held religious beliefs barred him from creating a cake for a same-sex ceremony, Craig and Mullins had a choice.  As David Brooks pointed out, they had "two possible courses of action, the neighborly and the legal."

The neighborly approach would have kept the issue personal and prompted a dialogue between the two men and the Christian baker.  "The legal course," Brooks explains, "was to take the problem out of the neighborhood and throw it into the court system."

By choosing the legal route, Craig and Mullins needlessly created conflict where none need be before.  Phillips's shop is located in Lakewood, Colorado, while the ceremony was to take place in Massachusetts.  Was there not a bakery in the Bay State that would happily accommodate the couple?

The Masterpiece Cakeshop case will be decided later this year, but the damage is already done.  By pushing for legal intervention, this couple further inflamed the tension between gay rights activists and religious liberty advocates.  Would it not have been more civil, and more productive, to take a step back and simply find another baker and clean their hands of the whole mess?

For 2018, we'd all be better off adopting a more neighborly approach to divisive issues and stop letting the law in places where the heart should rule.

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