an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Tolerance, Humility, Patience, and Asymmetric Accommodations
This is my third post on John Inazu's "Confident Pluralism." The firsttwo dealt with aspects of his constitutional analysis; this one deals with his prescriptions for good civic behavior (including, at least indirectly, recommendations for legislative action when constitutional rules are inadequate). My general concern with this argument is more with tone than with substance: Most of the argument appears to be directed at intolerant, arrogant, impatient secular liberals -- although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.
Early in the book he describes receiving hate mail from people in the latter group. What is the proper, civically responsible thing to do then? Late in the book Inazu describes one-on-one encounters between prominent conservatives and liberals, in which the direct engagement produces some civically valuable transformations (or so he says -- it's not clear to me that the actual public behavior of the people he describes changed much even if they were more moderate in private encounters than they would otherwise have been). So, is the civically responsible thing to do in response to hate mail to engage with its sender? And, if so, in what would that engagement consistent?
"Sorry you feel that way" doesn't seem to cut it. "No, if you actually read and thought about what I wrote, you'd see that I'm not a fascist" seems unlikely to be worth the time. "You needn't be horrified by what I wrote because there's a more generous reading available" didn't work. And engagement through e-mails with open anti-Semites seems like a very low payoff use of time as well. Tolerance, humility, and patience suggest that one acceptable response might be simply to file the e-mails in a "deleted" folder while shaking one's head regretfully at the fact that one's co-citizens are so benighted (that's the "patience" part -- maybe in good time they'll come around on their own).
What's lacking in Inazu's account, though, are any prescriptions whose point would be to induce those who send hate mail to stop doing so. Partly, I suppose, the reason may be that the senders of hate mail are less likely to read Inazu's work than some who he would characterize as intolerant, arrogant, impatient secular liberals. (Just to be clear, some of the responses to my "hard line" post suggest that the responders would place me in that category.) But, I think, the lack reflects a deeper asymmetry in recent suggestions that secular liberals, having won the culture wars (see this for an endorsement of that view by someone who wishes otherwise), should be, as the article at the link says, "be merciful."
So, let's consider two recent flare-ups (skirmishes by a retreating force, in my view) -- proposals to adopt general religious liberty laws, and the so-called "bathroom" laws. As to the former, maybe secular liberals could and should get behind carefully drafted statutes that would accommodate the religious objections of small businesses and the like (for a more detailed characterization, see this) to the application of non-discrimination laws to LGBT people. But those aren't on the table. The religious liberty laws are far broader in scope. And, notably, the Republican House of Representatives defeated a proposal to require that employers with federal contracts refrain from discrimination on the basis of sexual orientation, with opponents citing the risk that such a statute would infringe on the religious liberty of some employers. I would think that the civically responsible thing to do for people with that concern would be to propose a statutory accommodation, the contours of which could then be examined to see whether the non-discrimination law would drive a religious baker out of business, etc. (or to observe that the statute, if enacted, would be subject to the Religious Freedom Restoration Act, which might already require appropriate accommodations.) But no, the actual response was to oppose the adoption of the non-discrimination rule in the first place. Under these circumstances, asking only secular liberals to be civically responsible seems to me not itself civically responsible.
On the bathroom laws, even those far more temperate than I about them, such as Perry Dane and Michael Dorf, find it difficult to see how secular liberals could be more tolerant, humble, and patient about the question. I find it hard to believe that proposals by secular liberals to fund floor-to-ceiling dividers in bathrooms and locker rooms would have received any serious consideration by those proposing bathroom laws, though such dividers would go a long way toward accommodating the (expressed) concerns of those supporting the laws. Again, there seems to me a serious asymmetry in civically responsible behavior here.
My own curbside diagnosis is that we're observing the first stage of grief over losing the culture wars -- denial. One thing that the victors might try to do is figure out how best to move the losers to the final stage of acceptance. I suggested that taking a hard line was strategically the best thing to do, and I'm perfectly happy to have conversation about whether there are better strategies.
For now, it seems to me that the asymmetry in civically responsible behavior supports my strategic judgment. Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.