Monday, May 09, 2016

What Does "Taking a Hard Line" Mean?

Mark Tushnet

Well, that certainly provoked people (or rather, one parenthetical comment did). Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).

I said that victors in the culture wars should take a hard line with losers, making several historical allusions to cases where I thought that taking a soft line didn't work and taking a hard line might have. But what a hard line is will vary with the circumstances. In the context I was writing about, for example, "taking a hard line" means opposing on both policy and constitutional grounds free-standing so-called "religious liberty" laws. (The constitutional argument builds on Romer v. Evans.) It also means being pretty leery about some "compromises" I've heard floated -- most notably, agreement by Christian conservatives to support extending general nondiscrimination laws to cover the LGBT community in exchange for including "religious liberty" exemptions. (I should note that I've heard these proposals from conservative academics, but the proposals seem to have no traction whatever among conservative politicians who, given the opportunity to offer such a statute, have opted for free-standing "religious liberty" statutes instead.)

Why leery? Partly because working for the proposals would mean compromising in advance, which doesn't seem to me a good strategy. But also, because because the exemptions that might satisfy "our side" would have to be pretty narrow -- available, for example, only to individual proprietors, small partnerships, and corporations with some low number of employees along the lines of the Mrs. Murphy exemption from the Fair Housing Act; and some sort of constraint on the exemptions' availability in cases of claimed "complicity." (I don't know whether even these would be acceptable to activists on "our side.") And here's the problem: Narrowness makes the exemptions constitutionally vulnerable ("corporations are people," "who are you to assess whether my religious claim is a sensible/acceptable one?," and all that). Maybe some conservative politicians would go along with the suggested compromise, but they can't control aggressive litigators.

Assuming, though, that our side has won the culture wars, maybe we can hope that the courts would reject the constitutional challenges, invoking, for example Chief Justice Rehnquist's point about "play in the joints" in religious-liberty contexts. But, at the moment, taking a hard line means waiting for these proposals to get traction among conservative Christians.

I can't help thinking, though, that the outraged reaction is just an indication that -- to extend one of the historical examples I used -- like the Japanese soldiers who were stranded on islands in the Pacific and didn't know the war was over, so too many people on their side haven't yet come to terms with the fact that they lost the culture wars.

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