“Trump?… Well, I guess we know now how Hitler came to power through the electoral process,” noted our landlady sweetly over coffee, as we reflected on Trump and the state of American politics.
I will back up a minute. At the time, I was staying at a B&B in Boston—ah no, it’s “Cambridge,” I was quickly corrected—to do 5 days of research on 19thcentury Hawaii at Harvard’s libraries. Every morning we guests gathered for the breakfast served up so well by our Harvard/Radcliffe-educated landlady who, it must be noted, was a charming hostess in every way. That particular morning, we had a young couple from Holland touring the East Coast—he a TV journalist on foreign affairs—a Juilliard-trained professional pianist (he had just played at the Boston Pops), and a Harvard-educated Nepalese engineer and computer boffin.
With the Trump/Hitler comment, there was no way I could stay silent. “Actually, I voted for Trump,” I quietly dropped. Our landlady, intrigued—she had met one of “the deplorables”!— asked me why, observing that she quite agreed with “fiscal conservatives,” her issue was with “social conservatives” like Pence who “refused to stay out of the bedroom.” She thought that that Romney was quite good as Mass. governor (running on the promise to defend gay rights) and Trump quite good in his earlier political incarnation (when pro-abortion rights), but both were ruined when having to garner national support for their presidential bids, both then veering right into the embrace of the Republican social conservatives.
To that, of course, I also could not remain silent: “Actually, I too am one of those social conservatives.” Our positions were clear! Social conservative versus liberal Massachusetts. But still, over two days we had quite a good talk. She was not convinced, but at least she could see it was not all blind prejudice, which, sadly, is a real win today. Here below is what I said to her; it revolved around two quite simple points
#1 Don’t let yourself be fooled. You frame the difference as one between narrow, heavy-handed moral puritans set on imposing their personal morality on others vs. the light-fingered, liberally tolerant seeking an open and free public square. The truth is: both sides are moralists seeking to shape the public square according to their principles.
#2 And you need to see that the version of public morality you espouse actually results in the jack-booted oppression of many of your fellow citizens, a claim based not in vague fears but in unavoidable fact. This stuff is really happening, see the two cases below.
I then expanded briefly (?) on each point (as is my wont!).
Both Sides Moralists
I told her, “Your side are equally firm moralists. Just consider”:
- The rage of those who marched on the streets proclaiming at the beginning of Trump’s presidency, “Not our president.” Rage evidences deeply engaged emotions, emotions not about neutral facts, but about violations of justice and practices that are “wrong, wrong, wrong.” It was righteous indignation… at its self-satisfied smuggest, I might add… and do!
- And look at the morality on display with your own neighbors (see pictures attached). One has a sign in their front garden urging, “Vote YES on 3, Dignity and Respect for Transgender People in MA” and the other has a sign, in multiple languages, clearly aimed at Trump’s immigration policies, proclaiming, “We are glad you are our neighbor” (see picture attached). Justice and love—again, moral principles—are the driving motivations behind both programs. And here we have no private morality discretely keeping to itself; it trumpets itself publicly and demands legislative expression.
Jack-booted Oppression of the Left
Sadly, this particular morality is a jack-booted version, unashamedly oppressive to many religious. I am not making this stuff up. Just look at two recent court cases.
Christian Legal Society v Martinez (2010)
The first case is Christian Legal Society v Martinez(2010).Here the Supreme Court upheld the decision of the University of California’s Hastings Law School to “derecognize” in 2004 the Christian Legal Society (CLS). No longer did CLS qualify as a bona fide student group with the same rights as any other student group. They no longer had the right to “meet on university grounds and to access multiple channels for communicating with students and faculty—including posting messages on designated bulletin boards, sending mass e-mails to the student body, distributing material through the Student Information Center, and participating in the annual student organizations fair.”
In its entire 140-year history, Hastings-UC has derecognized exactly one group: the CLS. The other 60 plus student groups were left untouched. And they derecognized them, as the Hastings Student Officer informed them, because:
“CLS’s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, specifically pointing out “the religion and sexual orientation provisions of the Nondiscrimination Policy and that they [the bylaws] would need to be amended in order for CLS to become a registered student organization.”
But this is crazy, and counter to California’s history—starting with Mario Savio’s “free speech” movement in the 60s at UC Berkeley—where the whole trend was to protect unpopular, even offensive, groups’ right to express themselves. Whether it was wearing jackets proclaiming “F__k the Draft!”,or students wearing black armbands at high school to protest the Vietnam war,or burning the American flag, or, perhaps most pertinent of all, the establishment of a known-to-be-disruptive, far-left local chapter of the Students for a Democratic Society on a public university,1 the point US-wide was always to staunchly protect people’s right to associate and to communicate. But with CLS v Martinez, California and the supreme court has sharply reserved course. CLS has been told to go to the back of the bus; they have been denied the right to participate in the university life as a student group on the same level as all the other 60 plus student groups.
Remarkably, Justice Ginsburg, speaking for the majority in supporting UC-Hastings’ stand, sees no problem and no discrimination in any of this. But that is crazy. Not only is it crazy because it contradicts California’s entire purported “free speech” background, but it is crazily unjust in its discriminatory application particularly against the religious. Justice Alito’s dissent pointed out how UC-Hastings treated other student groups very differently from the Christian group:
At least until … July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints. For example … the Hastings Democratic Caucus [which conditioned membership on] “respect for the objective of the organization as stated in Article 3, Section 1.”… the Vietnamese American Law Society [with similar requirements]…. Silenced Right limited voting membership to students who “are committed” to the group’s ‘mission’ of ‘spread[ing] the pro-life message’.”…. La Raza limited voting membership to “students of Raza background.”
None of these groups, despite their limited memberships, had a problem with the administration. But, “When CLS refused to change its membership requirements, Hastings denied its request for registration—thus making CLS the only student group whose application for registration has ever been rejected.”
Lastly, the court’s decision is crazy in its bucking the simple realities of all social and work life, where groups constantly coalesce around, function on the basis of, and are defined by their selective aims and requirements. To belong to the French club you need to want to learn French, not Spanish! But UC-Hastings insisted that its anti-discrimination policy demanded an all-comers-policy “requiring that student organizations wishing to register with Hastings allow any Hastings student to become a member and/or seek a leadership position in the organization.”The only permissible requirement was student status; selectivity on any other basis was banished. The absurdity of this approach was noted in a Washington Post editorial:
PICTURE THIS: gay student organizations forced to accept those who believe that homosexuality is an abomination. Student political groups, such as Young Republicans or Young Democrats, compelled to allow members of the other party to vote on policy platforms. A law association for African American students being told that it must let white supremacists run for leadership posts. Sound absurd? Welcome to the University of California, Hastings College of Law.
Here is the surrealistic extent to which UC-Hastings is willing to go in order to defend its sexual orientation policies against any groups who have the temerity to disagree.
Masterpiece Cakeshop v Colorado Civil Rights Commission(2018)
The second case revealing the oppressive side of this ostensibly liberal morality is Masterpiece Cakeshop v Colorado Civil Rights Commission(2018).The cake shop, operated and owned by an Evangelical Christian, was happy to serve customers of any sexual orientation, but unwilling to prepare a cake specifically for a gay couple’s wedding. When asked by the gay couple, he replied “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings,” explaining later that it “celebrates something that directly goes against the teachings of the Bible” and thus his conscience.The gay couple sued, claiming discrimination. The Colorado Civil Rights Commission sided with the gay couple as did the Colorado state courts. The U.S. Supreme Court, however, overturned the decision, supporting the cake shop owner.
What is disturbing about the case is only secondarily the court’s actual decision—they essentially punted on the principle, deciding on the narrowest of factual grounds, such that the similar cases could be decided very differently in the future.What is more disturbing is the brazen display by both the Colorado Civil Rights Division and the Colorado state courts of their dark view of religiously-based views on human sexuality, seeing them as legally problematic–and justifying, once again, the use of government power to send them to the back of the bus. The commission lectured the cake shop owner thus:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust…. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
Unfortunately, this brazen display of hostility to religion is symptomatic of what is happening everywhere today in the US and the western world.
In contrast to how they treated the cake shop owner, Colorado had no problem whatsoever defending bakers who were gay marriage-friendly from being forced to bake cakes expressing opposition to gay marriage. See how Coloradoan William Jack, a Christian opposed to gay marriage, was handled by this very same Colorado Civil Rights Commission:
He approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds…. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions…. Mr. Jack responded by filing complaints with the Colorado Civil Rights Division…. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions…. Mr. Jack appealed to the Colorado Civil Rights Commission, but the Commission summarily denied relief.
What is disturbing here is not that Mr. Jack was not supported in his bid to force these bakers to print his message. Of course those bakers should have been left free to refuse Mr. Jack’s request! Would we require a Jewish baker to bake, if asked, a cake in the shape of a swastika to celebrate Adolf Hitler? Of course not. What is disturbing is that the Colorado Civil Rights Commission and its state court could not extend the same consideration to Christian convictions.
Equally disturbing is that Justice Ginsburg, in dissent on the Supreme Court, agreed with the Colorado Civil Rights Commission, seeing no discrimination or hostility to religion at work.Here is what is alarming: that hostility to religion parades as benign neutrality, that it grows increasingly prevalent in the US, and that it is arming itself with legal teeth.
This is oppression, clear and simple. And with such oppression on the rise, it should come as no surprise, when a Donald Trump rises up—with his promise to replace religion-hostile judges with judges more supportive of the First Amendment’s guarantee of the free exercise of religion—that he wins the vote of many of the religious, despite their discomfort with his personal faults.
A remark by Clinton—”To just be grossly generalistic, you can put half of Trump supporters into what I call the ‘basket of deplorables’. Right? Racist, sexist, homophobic, xenophobic, Islamaphobic, you name it.”—which has been defended by Washington Postopinion writer Jennifer Rubin saying, “Moreover, if Trump voters tolerated his racism during the campaign because they thought Clinton was a she-devil or because they were convinced he possessed unique skills or because they thought he’d be controlled by congressional leaders, what is their excuse now?... Trump is not demonstrating even a smidgen of competence or ability to enact the agenda he promised.… All that is left is the white-nationalist sympathizer. In sum, there is no non-deplorable rationale for continuing to defend this president, his rhetoric and his moral obtuseness.” (Jennifer Rubin, “About the ‘deplorables’,” Washington Post, August 17, 2017 at https://www.washingtonpost.com/blogs/right-turn/wp/2017/08/17/about-the-deplorables/?utm_term=.3ce14a842bb6
And relevantly, since I write these reflections in the shadow of the hallowed halls of Harvard’s elite, a review of NY Times writer Amy Chozick’s Chasing Hillary(2017) notes, “Disturbingly, the book makes clear that Clinton’s take on Trump’s ‘deplorables’ was no one-off gaffe. Rather, it reflected her private and oft-repeated taxonomy of Trump’s supporters, one that elicited guffaws over chardonnay and canapes across Martha’s Vineyard, Beverly Hills, and Silicon Valley.” https://www.theamericanconservative.com/articles/chasing-hillary-clintons-deplorables-was-no-one-off-gaffe/
See the online version at https://www.supremecourt.gov/opinions/09pdf/08-1371.pdf
Christian Legal Society, 561 U.S. 661 (2010), Justice Alito dissenting at page 4
Christian Legal Society, 561 U.S. 661 (2010), Justice Alito dissenting at page 5.. CLS at Hastings never expressly condemned homosexuality in its charter, but simply disqualified for membership any holding to the “unrepentant participation in or advocacy of a sexually immoral lifestyle,” which it interprets as “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” (561 U.S. 661 (2010), page 3 of Justice Alito’s defense.)
Cohen v California, 403 U.S. 15 (1971)
Tinker v Des Moines Independent Community School District, 393 U.S. 503 (1969)
Texas v. Johnson, 491 U.S. 397 (1989)
Christian Legal Society, 561 U.S. 661 (2010), Justice Alito dissenting at pages 7-8.
Christian Legal Society, 561 U.S. 661 (2010), Justice Alito dissenting at page 5.
This was, in fact, a new policy never before expressed in any of UC-Hastings written materials, and only first expressed some six months into CLS’s lawsuit against them. Justice Alito points out that this “all comers policy” was not simply a new “interpretation” but actually an entirely new policy, and one conveniently adopted in the middle of the legal suit as a ploy to avoid CLS’s religious discrimination claim, given that UC-Hastings allowed groups with secular limits on membership while prohibiting CLS’s religiously-based limits (particularly of the sexual orientation kind). Justice Alito pointed out, “First, the two policies are simply not the same: The Nondiscrimination Policy proscribes discrimination on a limited number of specified grounds, while the accept-all-comers policy outlaws all selectivity.” (561 U.S. 661 (2010), page 7 of Justice Alito’s dissent). That is, UC-Hasting realized that, without reframing their complaint to oppose all selectivity, they might be understood as taking aim particularly at CLS’s stance against sexual orientation, which would then make the university vulnerable to a religious discrimination claim. Can’t have that, now, can we?
“Politically Correct, Legally Wrong,” Washington Post, April 19, 2010, available at: http://www.washingtonpost.com/wp-dyn/content/article/2010/04/18/AR2010041802818.html
See the online version at https://www.supremecourt.gov/opinions/17pdf/16-111_new2_22p3.pdf
Cakeshop, 584 U.S. ___ (2018), Justice Kennedy delivering the opinion of the court at page 4.
The Supreme Court, that is, did not really rule on whether the cake shop owner’s actions in principle were defensible. They merely said that it could not be prohibited in the way that the Colorado Civil Rights Division did. That is, the court ruled that the Colorado division had applied an otherwise valid anti-discrimination law in a biased way, hostile to religion, and that even a valid statute, when applied in a non-neutral way against religious actors violates the First Amendment’s guarantee to the free exercise of religion.
Cakeshop, 584 U.S. ___ (2018), Justice Kennedy delivering the opinion of the court at page 13, citing one of the Colorado commissioners.
Cakeshop, 584 U.S. ___ (2018), Justice Gorsuch concurring at page 2
Cakeshop, 584 U.S. ___ (2018), Justice Ginsburg’s dissent at page 3.
- Healy v. James, 408 US 169 (1972) ↩