Tuesday, December 20, 2016

Doubling Down (on "The Culture Wars Are Over")

Mark Tushnet

One feature of the hate mail I've received (as well as the modestly more respectable responses) to my post on abandoning defensive crouch liberalism is gloating about the implications of the election's result. (Another feature is a systematic misreading of the post as advice to liberal judges rather than to liberal academics -- a misreading that does not give one a great deal of confidence in those who assert that they are interested in interpreting the Constitution's text as written; if they can't read a blog post's text accurately, why should we think that they can read the Constitution's text accurately?) This article, in which I'm quoted, examines the current state of the discussion reasonably dispassionately, I think. So, now I'm going to double down on the point that clearly was most annoying -- the claim that the culture wars are over, and that liberals won.

The most obvious place to begin is with gay marriage. No one -- and I mean literally no one -- who has responded to the post claims (nor, I believe, thinks) that there's any chance whatsoever that gay marriage is going to go away. This is not a throwaway or an incidental point -- the very thing that the gay rights movement worked for, for decades, is now simply off the table, with a victory for our side.

Next, multicultural education. That's not going away either, and again I doubt that anyone thinks that it is, aside from some tinkering around the edges.

Third, transgender rights. Here the main point is that this is where the fight is occurring. Who would have imagined even a decade ago that there would be a major battle -- which, for the moment, we're winning -- over the right of transgender young people to use a specific school bathroom? We haven't won this battle yet, and might not do so in the next year or two, but the fight (to continue the military metaphor) is occurring deep within "their" territory.

Fourth, gay rights more generally. Here's where most of the gloating appears to be occurring. But, notably, it's of an extremely limited sort. Again, no one appears to be contending that businesses should be allowed to discriminate against the LGBTQ community generally, for example simply because the owners think that the behavior they think associated with members of that community is simply "icky." Indeed, a lot of the pushback to my claim includes what now seem to be standard disclaimers that the responders "of course" oppose discrimination against the LGBTQ community. Again, consider how far that shows our side has moved into their territory.

But, what about accommodations for those with religious objections to providing business services to members of that community? Here everything turns on details, which the gloaters seem to ignore. From the outset I thought -- and wrote, but of course no one paid attention to it -- that we were likely to end up with a limited form of accommodation. I thought that it would be for relatively small owner-operated businesses whose owners had religious objections to providing what I'd describe loosely as "expressive-related" services. And I still think that's where we're going to end up, though there will be variations in the details -- size, what counts as an "expressive-related" service, and the like. For me, this sort of accommodation was itself an indication of the "we won" position.

What about broader statutory accommodations, which would make religion-based objections the grounds for more general discriminatory policies? Does anyone think that a statute allowing Chick-Fil-A to refuse service to members of the LGBTQ community because (were it true) the company's owners had a religious objection to selling them sandwiches would have any chance of being enacted? I don't. Yet, that's what some proposed statutes would allow. I have in mind the federal "First Amendment Defense Act" (which Doug Laycock appears to believe goes too far -- and which, even so, is a quite indirect protection of the asserted First Amendment rights) and state analogues. Here I have several predictions: (a) The federal statute is quite unlikely to be enacted, though it might be. (b) If it is, and if similar state statutes are enacted, they will be given extremely narrow interpretations. (c) Alternatively, if they are enacted, they will be held unconstitutional precisely because of their breadth. There is some evidence supporting these predictions, in the political difficulties encountered when broad statutes in Indiana, North Carolina, Georgia, and Arizona were proposed and/or enacted.

Finally, affirmative action and abortion. Here my point is much more contingent: Until Anthony Kennedy leaves the Court, or Trump gets to make two nominations to the Court, nothing's going to happen to change the current state of the law. The Court decided Fisher and Whole Woman's Health last year precisely because (I assume -- I have no inside information) its members knew that simply replacing Justice Scalia wasn't going to alter the results. And, exactly for that reason, the political fight over the second appointment -- if it happens -- is going to be much more contentious than anything we've seen so far, which is saying something.

Here are some additional military metaphors. The gloaters are like Robert E. Lee preparing for the the battle at Gettysburg -- they expect to win, of course, but they're going to be surprised (I think). And of course there are going to be continued skirmishes -- like guerilla warfare after Appomattox -- some of which we might lose. But, taking everything into account: The culture wars are over, and we won.

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