"If I were Fortune--which I'm not," the trio in The Mikado very scrupulously begin their reflections on fate. If I were Yale University, I might try to accommodate students who don't want to share dorm facilities with persons of the opposite sex. But of course the real issue in the Yale Five case isn't whether the undergraduate administration should listen to windy Old Blues like me. It's whether federal judges should be setting the dorm rules of a private institution.
Until lately, we knew who to count on to lead the fight against judicial meddling of this sort: our friends on the traditionalist right. Just last fall, some of them were saying court activism had reached sucha crisis level as to cast into doubt the legitimacy of the entire American political "regime." Especially at risk, we were told, were "mediating structures" like churches and nonprofits; if courts started forcing these institutions to import into their internal governance the language of entitlement and adversary due process, they could wind up mere branch offices of Leviathan.
So what happened this fall when the Five--all devout Orthodox Jews--made headlines by withholding their dorm fees and hiring a well-connected lawyer to menace the university with a suit? Conservative pundits lined up as a cheering section, and it was left to the mainstream press to seek out less-enthusiastic views. "They knew about the policy coming in. It is a private institution so if they don't like it, they don't have to come here," Yale junior Josephine Coakley told The Washington Post. "They are seriously misstating facts about life at Yale," added Michael Whitman. "The statement that they would be required to be in rooms with unclothed women walking around is a misstatement." Whitman, it happens, is the Orthodox rabbi at Yale.
Of course, in general the right still opposes the impulse toward group and ethnic separatism, the turning of quotidian grievances into civil rights cases, and the continual expansion of the sensitivity industry. But it's worth keeping your eye on the steadily growing exception made for "religious accommodation." A few years ago Dolores Stanley, an Ohio manager with the Dairy Mart convenience store chain, complained to the federal Equal Employment Opportunity Commission that her employer's policy of stocking Playboy andPenthouse (behind the counter, in sleeves) subjected her to religious discrimination and sexual harassment. "It goes against everything I believe in as a Christian," said Stanley. Attorney Benjamin Bull of the Tupelo, Mississippi-based American Family Association backed her case; Bull has since moved to the Pat Robertson-founded American Center for Law and Justice.
In recent years several public-interest litigation groups have sprung up to advance the interests of religious believers, sometimes at the expense of others' liberty. The Charlottesville, Virginia-based Rutherford Institute files lawsuits galore urging courts to intervene in the workings of both private and public institutions to expand the scope of required religious accommodation, which not incidentally shrinks the scope of those institutions' authority to run their own affairs as they see fit. Private employers are frequent defendants in the institute's suits.
In one case reported in the Heritage Foundation's Insider Newsletter this August, Rutherford's target was the Cincinnati Reds baseball team, which has sought to regulate the kinds of banners its fans can wave from the stands. The Rev. Guy Aubrey had shown up at a game and unfurled a 10-foot bed sheet with the biblical citation "John 3:16." Stadium officials said the banner was against Major League Baseball policy and confiscated it. After Aubrey got a federal judge to strike down the Reds' rule, the team proceeded to replace it with a rule permitting only "baseball related" banners, and Aubrey was soon back with a banner reading "Go Reds--John 3:16." Again officials required Aubrey to surrender the sign ("This is the equivalent of the Rodney King case," Rutherford attorney Jim Knicely told the Chattanooga Times) and again, running back to federal court, he got an order requiring another rewrite of the sign policy--a case of federal court micromanagement, plainly enough.
To me, at least, it seems clear that baseball teams have a legitimate interest in keeping fans and television watchers focused on the game itself and not distracted or riled by non-game-related passions. If concern for "quality of life" justifies ridding New York subways of the beggars and pitchmen who scream at hapless commuters, then it's not obvious why we should insist on legal protection, against teams' wishes, for signs reading "There Is No God But Allah--Beat the Cubs" or "Still Believe In Biblical Literalism? Get Real--On to the Series." It even strikes me that the Reds are in much the same legal boat as the Boy Scouts, another group that uses public facilities but fails to accommodate all shades of religious belief. (Obnoxiously, the Scouts exclude atheists from membership.) I feel comfortable with the idea of letting both the Reds and the Scouts be masters in their own houses, whether or not I agree with them. But apparently many others don't.
It all calls to mind the words of then-appeals court Judge Antonin Scalia on another topic (specifically, he was criticizing the tendency of some on the right to invite what he saw as judicial activism in the cause of property rights and free markets). Scalia suggested the issue poses a "moment of truth for many conservatives who have been criticizing the courts in recent years. They must decide whether they really believe, as they have been saying, that the courts are doing too much, or whether they are actually nursing only the less principled grievance that the courts have not been doing what they want."
Those who wanted to observe the anti-libertarian right at close quarters this summer could have done worse than attend the conference on "Homosexuality and American Public Life" held at Georgetown University. The event was graced by such figures as Richard John Neuhaus, Robert George, Robert and Mary Ellen Bork, and many others who are on record as, well, differing from the views often expressed in this magazine. Sponsored by the Roman Catholic-oriented American Public Philosophy Institute, the anti-gay event was notable not only for its epic length (three days--the "stigmathon," I began calling it) but also for an unanticipated fillip in content that surprised at first and then grew familiar by repetition.
After a few of the expected comments denouncing gays and their
doings, speaker after speaker and panel after panel went on to
propose that the wider and more important wrong to be righted was
America's acceptance of artificial contraception among
heterosexuals. After all, the panelists kept arguing, contracepted
sex, whether between a married couple or not, was morally
equivalent to the activities
of gays in that it consciously uncoupled sexual activity from the prospect of children. The problem, agreed Catholic conservative Russell Hittinger of the University of Tulsa and numerous others, was the modern growth of the widespread view that adult individuals should be in charge of their sex lives: "I don't think heterosexuals should enjoy these liberties."
Another prominent speaker at the anti-gay conference, and an influential endorser on its brochure, was Bill Kristol, editor of The Weekly Standard. Although friends already know better than to get me started on the subject of the Standard, I think it apropos to report on Kristol's speech, if only in the spirit of affording equal time to a publication often criticized in this space.
Kristol advised conservatives to prepare for "a very divisive and bitter debate" over the "complex of cultural and social and moral issues" that "increasingly I think are splitting the conservative movement." The designated opponent in this debate will by now come as no surprise. "Libertarians, at least some, have moved to not just a position of `live and let live' on the whole, but to a more aggressive defense of a kind of pure libertarianism, a denial of the public's right to uphold moral standards."
Stop for a moment and let's try to disentangle this. Kristol, whose training is in political theory, is here purporting to distinguish two kinds of libertarianism: a "live and let live" strain, which apparently has a longer pedigree and is to be viewed as more respectable, and a newer, more aggressive variant that denies "the public's right to uphold moral standards." From my observation of libertarians, this distinction between Goofus and Gallant types of libertarianism strikes me as wholly notional. Most libertarians I know moralize a great deal about such evils as force, fraud, coercion, oppression, and tyranny, and most would sympathize with the "live and let live" formulation, but most would also be likely to insist on a clarification of the vague, dodgy language about "the public's right to uphold moral standards."
The public can and does uphold moral standards all the time by avoiding, deriding, or outgrowing the trashy novel or gory video. But we can all sense that what Kristol is really asserting here is the right of some people--Straussian guardians?--to commandeer the government's force and impose their point of view on others, perhaps more numerous than themselves, who would rent the video or buy the novel. So far as I can tell, both "old" and "new" libertarians dispute such a right.
Borrowing a term from Grover Norquist, Kristol next considered what he calls the "Leave Us Alone" formulation of the Republican or conservative coalition, and firmly rejected it in favor of--his coinage?--"a sort of `Upholding Moral Standards' coalition....[A serious conservative political movement in this country] cannot simply take the view that, you know, less government is fine. And if only we could get rid of big government all else would be well." In response to a question, Kristol added, regarding political debates over the past 15 years, that the conservative embrace of family values "sort of trumped, I think, with the American people, the left, who were the party of individual autonomy, and individual self-expression, individual rights."