Law Professor Michael Dorf of Cornell analyzes Justice Thomas’ recent rant concerning Obergefell v. Hodges:
… prohibitions on conduct often affect belief. We like to think of ourselves as rational, as deciding what to do based on what we think, but the process frequently works in reverse. Considerable psychological research shows that we form our beliefs based on our actions. That phenomenon partly explains the role of ritual in inculcating religious beliefs.
It also partly explains why racist religious beliefs are much less common today than they were before the passage of the 1964 Civil Rights Act. In earlier times, religion was frequently invoked to defend slavery and later Jim Crow. The belief that the Bible authorizes slavery or mandates racial segregation was never outlawed and could not be outlawed consistent with the First Amendment. Still, that belief has almost entirely died out because actions based on it have been forbidden.
Accordingly, Justice Thomas is not wrong to think that legal protection for same-sex marriage could affect religious beliefs about same-sex marriage. Were he not so intent on waging the culture war, his statement in the Davis case might have been the occasion for a useful discussion on the subtle relationship between conduct regulation and religious (or other) beliefs. Unfortunately, however, on the Supreme Court as in other areas of our public life, subtlety is in short supply. [Justia]
I’m not even sure it’s irrational to think that lack of expression of a belief leads to the withering of that belief. We’re not creatures of contemplation, we’re creatures of action; indeed, I’m not sure a species composed primarily of the former could exist. What motivates action? Belief. Whether it’s belief that there’s a tiger in the shrubbery and it’s time to pull out the spear, or that God hates having Jerusalem occupied by non-Christians, and so it’s time for another Crusade, it’s belief, whether absolute or statistical, which is motivational.
Concomitant to this is the idea that belief is allied with good outcomes. When a belief’s required actions are suppressed, it is reasonable to believe that undesirable outcomes will occur; when they do not, then that belief properly suffers attenuation and extinction. Consider racial segregation: its gradual outlawing in public life did not lead to predicted long-term chaos. There have been no race wars, despite frantic, murderous efforts by madmen, and efforts to stir the pot by those who think their position in society is endangered. Public disruptions, in fact, can be traced to ongoing segregation, the racism behind segregation, and the injustices which flow from such despicable beliefs. And racism and segregation as valid ideas have completely lost their validity in intellectual society; those who continue to advocate for them are held in disrepute. The belief has been shown to be false, and we’re in that chronological space in which it’s dying out.
Place this in the company of the far-right fringe’s commitment to societal stasis, its fear of change, embodied in the oft-heard (in far-right land) worries about the erasure of the “American way of life,” and Justice Thomas’ rant is not irrational. Lacking expression, religious beliefs wane (and thus the protests at the temporary banning of in-house religious services during the Covid-19 pandemic, despite their identification as a common site for spreading the pathogen) in the absence of divine retribution. I don’t mean to say that Justice Thomas, or anyone else, is aware of this, as then it’d be plausible to argue they are religious frauds, and while some are, I don’t care to trod that road right now. But changing an underlying belief will lead to changes in actions, and that’s frightening for the rigid, the timid, and for those whose position in society depends on those underlying actions.
