In this piece, commenting on (among other things) the awarding of this year's Laetare Medal to Vice-President Biden and Speaker Boehner, my former Notre Dame colleague Cathy Kaveny writes:
What has changed in the past seven years? We now have widespread recognition that the barricades of the culture wars are collapsing upon us. No war—even a culture war—can become an indefinite and customary state of affairs without disastrous consequences. We can only recover by learning how to work together again—despite our deep differences—and learning to see the good in one another.
There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality. It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.
I'm not entirely sure what Cathy means with her statement that "the barricades of the culture wars are collapsing upon us," but if she means that the institutions, actors, and forces I just mentioned are winning -- are overrunning the defensive "barricades" -- then I certainly agree. They are not giving up or seeking a truce or peace, and there's no reason to think that they plan on finding ways to work together across deep differences. Like Cathy, I think, I would very much prefer a politics that involved sincere and civil efforts to find common ground where it exists, to take half-a-loaf over nothing, to welcome incremental improvements and not insist on revolutions or routs, that didn't involve boycott threats and "bigotry" charges, etc. I agree entirely with Cathy that politics is the art of the possible, that those who embrace the Church's social and moral teachings -- in their entirety -- have no choice but to not let the perfect be the enemy of the good, and that more "balance," compromise, and charity are needed in our politics. I agree that it is "counterproductive" to insist on unattainable policy goals (though I think we cannot mute -- and Pope Francis is not telling us to mute -- our truth-telling about the injustice of our abortion regime).
At the same time: it's a mistake to imagine that we can wish or good-will away the ongoing campaign against the Church's witness, work, and freedom. This campaign is, again, a reality. It has very real implications for, and poses non-imaginary threats to, our hospitals, universities, schools, social-welfare agencies, and social-justice activism. It involves, first, conditions on funding, tax-exempt status, accreditation, and licensing, but it will not stop with conditions that we will be able, in theory, to take or leave. By all means, let's work (and pray) for a better politics. Let's be realistic, pragmatic, and -- perhaps -- resigned to certain new realities. Let's also keep our eyes open.
Interesting commentary by University of St. Thomas law prof Charles Reid, here. An excerpt:
One of the most important contributions that Catholic social thought can make to today’s progressive politics is a theory of the state as guarantor of a just and fair economic playing field. Bernie Sanders and others would be well-advised to draw deeply from this tradition.
In doing so, they would find themselves at odds with the last three-plus decades of political discourse, which has been all about de-legitimizing the state. When Ronald Reagan said in 1981 that “government is the problem, not the solution,” he likely did not believe it himself. But his rhetoric was careless. And surely it stands behind much of the reckless talk and dangerous politics emanating from Donald Trump, Ted Cruz, the Tea Party fanatics, and the Ayn Rand libertarian right.
Wednesday, April 20, 2016
Deferring to the U.S. Department of Education's Title IX guidelines and a January 2015 statement from the DOE's Office of Civil Rights, a Fourth Circuit panel ruled in favor of a transgender student up and against the student's school yesterday, holding that the school violated Title IX when it restricted students' bathroom use to their biological sex (rather than chosen gender identity). Ed Whelan writes at Bench Memos: "The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX 'requires schools to provide transgender students access to restrooms congruent with their gender identity.'” Whelan posts a portion of Judge Paul Niemeyer's dissent which is well worth reading. Here's the money quote: "Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes."
The student's Equal Protection claim is pending before the district court thus was not at issue in the case decided yesterday. Still, Niemeyer's understanding of biological sex as the essential legal marker is in keeping with the line of Equal Protection cases that take seriously "inherent" biological difference, even as they treat "sex stereotyping" (what we'd now likely refer to as "gender stereotyping") as sex discrimination. Though I don't pretend this is a full analysis, I thought it'd be helpful to point out quickly some relevant language in the Court's decisions vis-a-vis biological difference.
Remember Justice Ginsburg writing for the Court in United States v. Virginia (1996) in which the Court struck down the historic male-only admissions policy of Virginia Military Institute: “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity." And Justice Kennedy writing for the Court in Nguyen v. INS (2001), upholding the INS' differential treatment of American mothers and fathers in their children's citizenship proceedings: "To fail to acknowledge even our most basic biological differences...risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real."
For sex discrimination law to serve its function--for the rule of law to govern--sex as a legal term has to mean something in particular.
