E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
1. Culture wars do not end.
Culture wars in the United States broke out during the 1630s when Anne Hutchinson organized religious meetings and Roger Williams insisted on a complete
separation of church and state. They have not ended and will not end. Sometimes the terrain shifts. We no longer burn women accused of
witchcraft, but we debate whether referring to women as witches is gender harassment. Political and legal victories that settle
some issues open up others. Successes in
the campaign for same-sex marriage intensified controversies over whether state
anti-discrimination laws should cover bakers, photographers and others who
refuse to offer their wedding services to same-sex couples.
2. Progressives have the momentum in contemporary culture wars. The terrain on which the culture wars are fought has been shifting in favor of progressives for more than a half century. A regime in
which historically disadvantaged persons complain of repeated microaggressions
is better than a world in which historically disadvantaged persons complain of being enslaved, sent to concentration camps, deprived of all political rights and imprisoned
for loving the wrong persons. A regime in which citizens debate if and where government may display the Ten Commandments/Statements is better than a regime in which citizens debate whether persons who reject the first five commandments/statements ought to be murdered or merely deprived of most political rights. Progressives
have achieved this better regime in part, one hopes, because their causes have
been just and human beings have some capacity for justice, and in part, one
recognizes, because most economic, social, and education elites in the
United States are committed to some version of secularism and share liberal (not radical) conceptions of
race, gender, religion, and sexuality.
Elites tend to win in democratic politics. The culture wars are no exception
to this rule.
3. The culture wars have been a progressive political disaster and are likely to be for the foreseeable future. The culture wars have diminished the Democratic Party's capacity to pursue economic justice. Progressive positions on the culture wars and economic justice are consistent if not complementary in theory, but the culture wars in practice
have had the effect of decentering previous progressive commitments to improving the lot of less
fortunate citizens. Progressive legal theorists who during the 1960s explained why the Constitution guarantees poor
persons basic necessities have been replaced by progressive legal theorists who
explain why the Constitution entitles all persons to use the
bathroom of their choice. Progressives carefully scrutinize judicial nominees for their views on abortion, but rarely examine their positions on
labor unions. The end result is that the
Democratic Party of Barack Obama and Hillary Clinton is a poorer vehicle for
pursuing economic justice than the Democratic Party of
Franklin Roosevelt and Lyndon Johnson.
Republicans have taken advantage of these changes in Democratic Party
priorities. The party of Reagan/Trump often does little
more than slow down progressive gains in the culture wars, but that is enough
to attract crucial swing voters who no longer believe that Democrats have much
to offer communities ravaged by globalization and new service economy. Republicans may be a half step behind the general public on the culture wars, but too often Democrats are perceived as being two steps ahead. Compare the successes from 2000-2016 of the candidates who celebrated their commitment to same-sex marriage and the candidates who celebrated their opposition to same-sex marriage.
4. Who is winning the culture wars depends on the
measure for success. If the measure of success is policy change, progressives are sitting pretty with Trump
more likely to stall further progress somewhat than reverse the clock to 1972
(the year before Roe v. Wade) or 1953 (the year before Brown). If one focuses on trends in national elections, the result is a progressive slaughter. The Clintonite strategy of appealing to secular moderates has enfeebled the Democratic Party as a vehicle for economic justice and moved crucial swing voters rightward to the party that shares their cultural values.
This is not a cry for progressives to call a truce in the
culture wars as much as a call for progressives to recognize how the culture
wars, while reshaping the United States for the better, have also reshaped
progressivism and American electoral politics for the worse. The challenge for progressives in
the immediate future is to find ways to continue fighting for basic human
dignity while moving the bread-and-butter issues that once mobilized Democratic
Party voters back to the center of reform movements.