It has become fashionable in some precincts to disparage America’s concerted and persistent opposition to the geopolitical aspirations and Marxist ideology of the Soviet Union (and later communist China) during the four decades following World War II.
Today, the Cold War is remembered by some as a regrettable period of belligerence by the United States, which depended too much on military force and neglected diplomacy and accommodation as tools of foreign policy. These detractors sometimes portray both sides in the Cold War struggle as morally equivalent, arguing that neither deserved to be characterized as heroes or villains. They dismiss the Cold War as an ancient and melodramatic morality play, having little or no moral implications or continuing political significance.
The events of the past couple of weeks remind us that the Cold War may have grown colder after the collapse of the Soviet Union, but it never truly ended. More importantly, we are reminded again of the noble sacrifices made by tens of thousands of Americans and countless others to secure the blessings of liberty and economic opportunity for hundreds of millions of people across the globe.
The invasion of Ukraine last week with masked soldiers and the effective annexation of Crimea bring to the fore once again the nationalist agenda of Russia. Russian expansionist ambitions have always been with us, though interwoven during the Cold War with the ideological conflict.
Less than a year-and-a-half ago, Republican presidential nominee Mitt Romney claimed during a debate that Russia posed the greatest geopolitical threat. President Barack Obama mocked Romney by saying, “the 1980s, they’re now calling to ask for their foreign policy back because, you know, the Cold War’s been over for 20 years.” (video here). Then-Secretary of State Hillary Clinton remarked that Romney’s comment was “somewhat dated to be looking backwards instead of being realistic” (video here).
No one is laughing today. Indeed, in a rather stunning about-face, Hillary Clinton now compares Russian President Putin’s occupation of the Crimea with Nazi Fuhrer Hitler’s invasion of Czechoslovakia and Romania in the 1930s (here). And no one doubts that Russia will continue to act aggressively, in Ukraine and Georgia and perhaps elsewhere in eastern Europe, when it finds doing so in its interests.
An even more powerful rejoinder to those pundits who denigrate the moral salience of America’s stalwart stand against communism may be found in the release last week by the United Nations of a report on human rights violations in North Korea. The report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea is a sobering reminder of what was at stake in the Cold War.
As reported by CNN (here), the commission’s report offers “a stunning catalog of torture and the widespread abuse of even the weakest of North Koreans.” Murder, torture (of men, women, and children), jailing and slavery for entire families, and mass starvation are widespread in North Korea, keeping an entire nation in submission to the whims of a totalitarian regime that monitors every aspect of human life. As a sadly typical story of cruelty in that communist abyss, one witness described the beating by prison guards of a starving woman who had just given birth, ending with her being forced to drown the baby. The full report is available here (and is horrifying, but should be compulsory, reading).
The UN report also describes the targeted persecution, torture, and murder of Christians (here). The North Korean regime regards Christianity as a “particularly serious threat” because “it ideologically challenges the official personality cult and provides a platform for social and political organization and interaction outside the State realm.”
The UN commission finds that North Korea maintains a brutally repressive regime “that does not have any parallel in the contemporary world.” This portrait of North Korea is a rebuke to the entire world (and especially to China as North Korea’s sole remaining patron), as these atrocities to continue and worsen under the arbitrary rule of Kim Jong Un. As Michael Kirby, the chairman of the UN commission concluded, “We cannot say that we didn’t know. Now we do know.”
What horrors the UN report depicts could well have been the fate of every person living on the Korean peninsula. By the summer of 1950, the communists from the north had conquered 90 percent of the Korean peninsula, including the most populous city of Seoul. Later that year, the daring amphibious landing at Inchon by allied troops (most of them American Marines), led by General Douglas MacArthur, and then stubborn resistance over three more years, turned abject defeat into a fragile and incomplete victory that preserved the independence of South Korea.
Today, some seventy-five million people live on the Korean peninsula. A third of them — those living above the 38th parallel — struggle pathetically for survival in what is effectively a nationwide prison camp. 
Hunger, fear, arbitrary jailing, torture, and persecution are the daily plight of millions.
The people of North Korea live in darkness, both figuratively and literally. Accompanying this post is a night-side photograph taken from the International Space Station just two months ago — the bright lights to the top demark China and those toward the bottom right are from South Korea, while the dark area in between (that could be mistaken for open ocean) depicts an impoverished and lightless North Korea.
But two-thirds of the Korean people — the fifty million who live in South Korea — participate in a successful democratic government, enjoy a standard of living that rivals that of those of us living in the developed economies of the West, and are free to worship according to their conscience. Don’t tell these millions in South Korea, who escaped the fate of their brothers and sisters to the north, that the painful struggle against communism during the Cold War was not “good versus evil.”
More than 36,000 American soldiers gave their lives during the Korean conflict, perhaps the hottest spot during the Cold War. Theirs was a noble sacrifice that we must never forget or diminish by misunderstanding. Their sacrifice truly counted for something then and even more today. We give thanks for the freedom and prosperity enjoyed in the south — secured by the bravery of men fighting for a just cause. And we grieve for the horror and slavery endured by those in the north, mindful of what could have been the tragic outcome for all — if faith had faltered, if resolve had weakened, and if the war had been lost.
Sunday, March 2, 2014
Following on my earlier messages to the ReligionLaw list about the nature and pain of discrimination and the necessarily limited role of law in a free society, I attempted in this final message (which I set out below for Mirror of Justice) to sketch out some points of general agreement and narrow in on the remaining points of disagreement.
While I wouldn’t suggest that consensus has been reached on all points [among posters to the ReligionLaw list], I thought I heard increasing agreement on some basic points:
First, when the law declares that basic provision of goods and services may not be denied on the basis of certain classifications, the general application of such a law meets with general approval among members of the list. Thus, to use a couple of generic examples offered now by more than one member of the list, the grocer should not discriminate on race, gender, religion, or sexual orientation in selling groceries and the baker should not bar anyone at the door based on such identity from entering to buy baked goods. To permit the grocer or baker to pick and choose who to serve based on essential identity would be discrimination at its most invidious, the harm experienced by the person who was the subject of such discrimination would be at its most egregious, and the claim of an intrusion into liberty interests at its lowest ebb.
Second, and by contrast, people appear to agree that when a person suffers a hostile reaction to advocacy, even on the most discriminatory of bases, or when a person restricts the goods and services that will be offered to anyone on the basis of that person's personal identity, then law should not intervene. Discrimination in direction or in effect by itself cannot be the basis for unleashing the coercive power of law. Thus, as previously discussed, a pair of Christian evangelists who are the subject of discriminatory taunts on the street should receive no legal redress. And the Jewish baker who closes the shop early on Fridays because the Sabbath is beginning should not be forced to do otherwise.
Into this second category where the law should not intrude, then, presumably would fall such additional examples as the operator of a Jewish deli or a Muslim halal grocery who chooses not to stock pork chops or bacon for religious reasons; the owner of a gay and lesbian bookstore who chooses not to place books about religious “reparative” ministries on bookshelves because he disagrees with that message; or the obstetrician who refuses to perform abortions on philosophical or religious grounds.
Now, and here I return to the point where consensus has not been reached, I would submit that some of the same or similar characteristics or principles that define this second category of free choice also encompass the case that has been highlighted of the wedding photographer who declines to photograph a ceremony with which she disagrees. Similarly, an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician. A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse. A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients. A couples therapist may focus on gay couples, while not choosing not to work with straight couples.
Now each of these examples could be described as involving “discrimination.” But we have also used another term to describe these choices: Freedom.
What I would argue distinguishes these business choices from the general prohibition on discrimination in goods and services is that the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse. In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical. Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals. The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.
To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles. That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase. Here at least, we should say that the law may proceed no further.
Saturday, March 1, 2014
I’ve been encouraged to post to the Mirror of Justice some more of my posts to the ReligionLaw list, this time in the ongoing debate among legal scholars about the proper balance (if any) between enforcing statutes prohibiting discrimination based on sexual orientation (and other bases) and protecting religious liberty. Some have argued that the law is properly used to protect everyone against the pain of discrimination, even when goods and services remain readily available from others and thus there is no concrete harm being addressed, and further that no religious liberty exemptions should be permitted. Below is the beginning of my response:
In reading several messages poignantly describing the pain of suffering discrimination, I was reminded of something that I observed on the streets of a major American city to which I was traveling. On a major downtown pedestrian thoroughfare, two young people, looking to be in their early twenties, were handing out flyers and trying to engage passers-by in conversation. Their t-shirts, leaflets, and spoken words readily identified them as evangelical Christians preaching the Gospel. Their persistence in the face of a rather disdainful audience, as well as the tone and message, confirmed that they were speaking from the heart and acting in furtherance of what they understood to be a genuine calling to share good news with others.
The response was anything but receptive; indeed, it was, no two ways around it, frequently hostile and, yes, bigoted. While most of those walking by simply ignored the two or gave them a cold stare as they passed, several made derogatory remarks, laughed or jeered loudly, or even told them to “[epithet deleted] off.” No one physically accosted the two, and the comments did not provoke any violence, so I don’t think it could be called disorderly conduct. But the targeted response was despicable in manner.
The two evangelists never responded in kind, instead saying “God bless you” or “Jesus loves you” to each person. But it was plain that the hostile treatment left its psychological mark. The young woman, who I am guessing was the veteran at street ministry, seemed less impacted. But the young man was shaken, as I could tell from his mannerisms, what looked to be tears in his eyes, and the quaver that appeared in his voice after he received a particularly vituperative comment.
Now what these two evangelical Christians experienced was plainly “discrimination.” And it was blatant and invidious discrimination. The remarks were not merely negative and disrespectful, but many were hateful and cruel. And the basis for the discrimination plainly was their religious identity and message. In the words of more than one poster to this list over the past day, these two were suffering an injury to their dignity, the pain of rejection, and the shame of stigma based on their identity.
Despite the undeniable fact that these two were the victims of discriminatory treatment and that they plainly felt the sting of that discrimination, I am guessing that all or most on this list will agree with me that it would be inappropriate to use the power of government to prevent such unfortunate behavior in the future or to pass a law that would compel those who pass by to treat evangelists with respect. And I think that choice to refrain from use of government and law is correct for at least two reasons.
First, a legally binding directive to treat evangelists – or for that matter others who present a message – with respect, or instead a government regulation that induces such respect at the cost of some type of sanction or withheld benefit, would be difficult to separate from an improper government endorsement of the message at issue. At the very least, legal action would put the heavy thumb of the government on the side of refraining from expressing opposition or indifference to a value-laden message.
But, second, it simply is not the proper role of government to enforce standards of courtesy or to wield legal power (as contrasted with appropriate exercise of persuasion) to shape human interactions. I definitely assert a moral right to be treated with dignity, but I do not have a legal right in a free society to demand that other private citizens extend such courtesy to me or even refrain from being discourteous. (By statute, of course, I do have the right to object to even private discrimination on certain grounds when it denies me the necessary tools for educational and economic opportunity. That’s something on which I’ll comment more later – but this post is already too long. My specific point here is that the real pain of discrimination alone, unaccompanied by something concrete like an economic deprivation, is like other failures in human behavior that are not properly the subject of government and where the imprudent use of law often transgresses the fundamental rights of some while attempting to address the grievances of others.)
Instead, it belongs to all of us, with personal commitment, through investment of time and talents, by telling our stories, and in how we live our lives, to enhance human dignity. We should resist the temptation to delegate that responsibility to government, through its use of power or its imposition of laws and liabilities. In a free society, we do not empower the government to shape our souls. That remains our job as the people.
