Liberals have been complaining loudly about two recent Supreme Court decisions, Schuette, which ruled that Michigan’s constitutional amendment prohibiting preferential treatment based on race does not violate the Equal Protection Clause of the 14th Amendment, and Town of Greece v. Galloway, holding that, in the absence of any intent to discriminate or exclude, a town board opening its sessions with prayers offered by primarily Christian pastors does not violate the First Amendment’s Establishment Clause.
Even though the cases involved unrelated legal issues, the liberal dissents are
strikingly similar, and show how “diversity” has become the central dogma of
contemporary liberal ideology.
Justice Sotomayor, lauded in The New Republic as “a national treasure” for her impassioned dissent in Schuette, argued that states must be free to favor some and disfavor others based on race, even if a substantial majority of citizens object, because “race matters.”
Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes…. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?” ,,,Race matters
because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
Justice Kagan’s equally impassioned dissent in Town of Greece was cut from identical cloth.
A person goes to court, to the polls, to a naturalization ceremony — and a government official or his hand picked minister asks her, as the first order of official business, to stand and pray with others in a way conflicting with her own religious beliefs…. And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community’s majority religion, and for altering the very nature of her relationship with her government.
“Sensitized by her background as a Jew,” Jonathan Alter gushed on The Daily Beast, Kagan understood “the feelings of anxiety and exclusion that the court’s decision has heightened.” (Perhaps Justice Kagan should be viewed as a “wise Jew” analog to Justice Sotomayor, who as a federal appeals court judge had voiced her belief “that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white
male who hasn’t lived that life.”)
On one level these dissenting opinions, kowtowing as they do to the feelings of
minorities, are simply the ripe fruit of the empathy that candidate Obama
promised when he declared in a 2007 speech that “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” Note that neither Sotomayor nor Obama mentioned Asians, many of whom with good reason feel disadvantaged and disrespected by preferences given to blacks and Hispanics.
The similarity between Sotomayor’s Schuette dissent and Kagan’s in Town
of Greece, however, goes much deeper than the empathy they both express.
Both are paeans to the doctrine of “diversity.” Consider how Kagan’s treatment
of minority religion thoroughly incorporates the liberal insistence on “diversity” in matters of race:
- It rests on the fundamental value of inclusion.
- It emphasizes how people feel when their group is underrepresented.
- Relying on disparate impact theory, it argues that underrepresentation is
discriminatory even where, as in the town of Greece, it is acknowledged to be unintentional.
- It rejects official religion-blindness just as liberal defenders of race
preferences reject colorblindness, arguing that failure to take religion into
account in order to avoid the underrepresentation of minority prayers violates
the Establishment Clause just as the failure to take race into account to avoid
underrepresentation of racial and ethnic groups violates the Equal Protection
- It thus implicitly would require state actors to take affirmative action to
ensure that minority religious views are sufficiently present in official
activities containing any religious expression.
The entanglement of the state with religion that would be compelled by the adoption of the dissenters’ views in Town of Greece is fundamentally at odds with the traditional insistence of liberals on a strict separation of church and state, making Justice Breyer’s joining Kagan’s dissent especially surprising. Public officials would be forced to decide such matters as what is a church, who is a pastor, even whether members of the conservative branch of a denomination (Missouri Synod Lutherans, for example, or Southern Baptists) can be sufficiently “included” by the presence of a pastor from a liberal branch.
In case after case Justice Breyer has insisted on strict separation because of his conviction that one of the “basic purposes” of the Establishment Clause is not only to avoid “divisiveness based upon religion that promotes social conflict”(Van Orden v. Perry) but even “the risk” or the “potential for divisiveness,” warning that any sort of religious preference threatens a “struggle of sect against sect” (Zelman v. Simmons-Harris). Maybe he was willing to join Justice Kagan’s dissent because it at least gave lip service to the risk of official sensitivity to religious beliefs provoking “religiously based divisiveness.”
Perhaps one day Justice Breyer will explain why he fears “the risk” or “the potential” of speculative social conflict based on religion more than the actual clear and present divisiveness and resentments produced by the racial and ethnic preferences he supports. After all, as the eminent Berkeley historian David Hollinger has noted in Postethnic America, in our time “ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history” (p. 123). Racial and ethnic conflict, in short, is every bit as divisive in our society as “the struggle of sect against sect” was earlier in our history, and much more divisive than religious conflict is now. There are no religious groups today, for example, seeking preferential treatment “by any means necessary.”
If the Town of Greece dissenters really believe that government should “not classify … citizens by faith, or make relevant their religious differences,” as Justices Kagan, Sotomayor, Breyer, and Ginsburg claim in their dissent, why do they all so religiously support government classifying citizens by race and ethnicity, thus ensuring the continuing relevance of those divisive differences?
Perhaps, in short, the time has come to insist on a separation of race and state — to insist, as the Court held in Abingdon v. Schempp, that in the racial as well as religious sphere “the government is neutral, and, while protecting all, it prefers none.” Although liberals now will regard that suggestion as, well, heresy, it is
nothing more than the command of the core American creed that all citizens
should be treated without regard to race, creed, or color.
That core value is so deeply engrained in the American psyche that even liberals whose support for racial preference policies violates it often feel compelled to give it lip service. Thus in defending the building of a mosque near Ground Zero several years ago President Obama said “in this country we treat everybody equally and in accordance with the law, regardless of race, regardless of religion.” (Emphasis added)
Ignore the fact that this is clearly not true — it is official government policy in
this country, policy strenuously supported by President Obama, to treat some
people better and others worse because of their race. What is noteworthy is
that even he recognizes, at least on occasion, that both religious freedom and
racial equality require governmental neutrality.