The last Quick Loop summary that I wrote was in May. I’m writing this one in part to explain my recent lack of regular posting. And then I delayed it to see how the Arizona primaries came out (answer: badly).
A Crisis of Confidence
Even though I left the Republican Party rather than support The Former Guy, I find myself more stunned than I would like to admit by the hold he still exhibits over Republicans.
I admit that I had little hope for the January 6 hearings in the House, but to my amazement Rep. Liz Cheney (R-WY) has decided that sacrificing her short-term political ambitions is worth it if she can loosen the sludge that has been coating and destroying the brains of The Former Guy’s fan club. Has it been worth it? Well, NPR writes that it has . . . but I admit to having serious doubts, especially after the primaries on August 2, in which a loony Trump-endorsed candidate who was given an almost half-million dollar promotional ad buy by the Democrats (!!) won in MI-03. On the one hand, I’d like to see him win to see the Democrats’ strategy backfire — but on the other hand, do we really want another loony in the U.S. House? Aren’t we already close enough to a kakistocracy?
I guess that Michigan race serves as another data point in favor of nonpartisan blanket primaries. It’s sad that we’ve come to that, but then again I never expected to become a declared independent again. Judging from the bombardment that I get from both sides for donations, I can only conclude that political parties are deader than The Former Guy’s sense of honor.
Anyway, let’s go back to the survey data that NPR relies on to reach that (questionable) conclusion about Trump’s power waning.
There's lots of evidence of Trump erosion. Here's just a sampling – and how the Jan. 6 hearings may be shifting things:
Increase in blaming Trump for Jan. 6: A Reuters/Ipsos poll also found that 40% of Republicans said before the last Jan. 6 hearing that they now "believe Trump is at least partially responsible for the deadly riot." That's up from 33% before the hearings.
A drop in Republicans saying the election was stolen: Reuters/Ipsos also found that before the hearings began, 67% of Republicans believed the election was stolen, now it's 55%.
More Republicans saying they don't want Trump to be the nominee: 55% of Republicans in a recent CNN poll said they don't want Trump to be their standard-bearer in 2024, up from 49% in February. Similarly, Reuters/Ipsos found a third of Republicans said Trump should not run again, up from a quarter before the Jan. 6 hearings.
Republicans saying Trump's focused too much on the past: 52% of Republicans said in an Echelon Insights survey that Trump is too focused on what happened in the 2020 election, the top reason given for what would be a good reason to oppose a Trump 2024 run.
Perhaps NPR is correct that Trump’s grip on the GOP is slipping because 67% of Republicans used to believe that the 2020 election was stolen from him but now only 55% believe it. Then again, if someone told you that two-thirds of your former allies used to be brain-dead suckers, but now just a mere majority are, would you feel better? You’re still part of a definite minority in the party to which you used to belong, and the majority are still brain-dead suckers.
Oh, and if 55% of Republicans don’t want Trump in 2024, that means that 45% either do or don’t care. In a multi-candidate race, that’s a clear plurality, just what Trump had in 2016. And I hope we all remember how that nomination battle came out.
None of that is meant to minimize the damage being done by the current Democratic governance. But I admit to having a much better understanding of being caught between Scylla and Charybdis, with inevitable disaster looming on either side. Until this year, I’d never felt like that since 1972, when (in my first election) America was faced with the “choice” between Richard Nixon, who was in the middle of Watergate, and George McGovern, who wasn’t even capable of choosing a running mate. But Trump’s attempted coup showed that he was extremely dangerous, not merely a megalomaniac, while Biden and the Democrats have “succeeded” in bringing back stagflation.
The interest rate that I had to pay on the car loan for my first new car purchase in 1981? 18%. The trump of Paul Volcker and Ronald Reagan over stagflation in 1981-82 (which caused that usurious rate) was one of the great political victories of my lifetime, and the question of whether we’re capable of doing it again has to haunt everyone (except for know-nothings like most of the current House). Do we have the leadership to do it again? If so, where?
At the same time, there is a much deeper problem afflicting America’s youth: a dramatic increase (perhaps an epidemic) in isolated, lonely young men (and probably some young women), which has been reflected in the dramatic rise in mass shootings since Columbine in 1999.
And yet, this issue was being discussed very openly . . . in the 1980s, as people theorized that the collapse of traditional religion in America would create a rootless, alienated youth culture that could become amoral. This was largely dismissed out of hand by those on the cultural left and the cultural middle (where I then was) — and yet it has indeed materialized, to an extent that should scare everyone and certainly scares our youth.
Those of us who grew up in the 1950s and 1960s, when we (like Randy Newman) thought that our leaders were about to drop the “big one” at any time (and why not now?), didn’t see this new nihilism as a profound threat. We were wrong.
I wish I had a solution. It’s not really a mental health problem; it’s a loneliness problem, accompanied by a degenerate culture that characterizes white men as oppressors and blames these actions on their loss of “white male privilege”. Perhaps that’s even correct — but it’s not a solution, just a way to otherize such people, which is about the least helpful response possible in trying to find a way out. Whoopee.
I admit that I don’t have a solution. But I have a one-year-old granddaughter, who will be joined within a few months by a newborn brother, and I don’t want either of them having to learn the modern equivalent of “duck and cover” as part of their elementary school routine.
The only thing I’m sure of is that a political culture characterized by Joe Biden, Donald Trump, Bernie Sanders, Ted Cruz, Elizabeth Warren, Marjorie Taylor Green, Barack Obama, Josh Hawley, Kamala Harris, Lauren Boebert, et cetera, is even further off base. And that accounts for the helpless feeling, because as far as I can see there are no Ronald Reagans looming on the horizon, just more overmatched partisan warriors.
Is it really possible that the last American president ever to express his desire to represent all the people, not just the partisans on his side, was George W. Bush? When he was in office, I didn’t particularly care for him, but hindsight is 20/20, and he deserved more credit than he got.
UPDATE on 5 Aug. 2022: The Arizona primaries were a disaster for those of us opposed to the loonies who apparently escaped from the loony bin and then took over the GOP. The 2020 “election denier”/nutcase Kari Lake won the GOP nomination for governor. But I can’t tell this story better than the way it was told in the Morning Dispatch today, and so I won’t try — I’ll just quote their telling.
Here’s a story that’s become canonical lore among Republicans who falsely believe the 2020 election was stolen from Donald Trump. When America went to bed on election night two years ago, with only real votes having been counted, Trump was headed for a second term in office. Then, as people slept, out came the fake ballots, as dissembling Democrats scrambled to make up the gap—an operation that ultimately proved successful, with Joe Biden being declared the victor.
Now here’s a thing that actually happened in Arizona’s Republican gubernatorial primary this week. When Arizonans went to bed Tuesday night, the ballots counted so far seemed to favor Republican establishment pick Karrin Taylor Robson. As the remaining ballots were slowly counted, however, MAGA favorite Kari Lake began to gain ground, pulling into the lead around 2 a.m. local time. As of this writing, it’s estimated that more than 100,000 ballots have yet to be counted, but most elections watchers agree Lake is unlikely to relinquish her lead.
Given the parallels to 2020, you may not be surprised to hear that the results have already been tarnished by allegations of fraud. But these allegations have come not from Robson, who lost out in the late count, but from Lake herself.
“We outvoted the fraud,” Lake said Wednesday at an event where she also declared victory in the race. “The MAGA movement voted like their lives depended on it.”
It wasn’t a surprise that Lake would stick to the allegations of election malfeasance that have been the backbone of her campaign. “We will not stand for another stolen election,” she told her supporters at a campaign event prior to the election. “We’re already detecting some fraud. I know none of you are shocked.”
It does, however, provide yet another reminder that the fraud claims of 2020 weren’t an anomaly but a growing and metastasizing feature of Republican party politics, in which all external measures of a candidate’s support, from third-party polls to actual ballot counts, are viewed as untrustworthy and the overwhelming strength of the MAGA movement among real voters is assumed as fact. Any run-of-the-mill errors in reporting or screw-ups in election administration that may crop up are then brought forward as smoking gun evidence of an insidious attempt at fraud.
As The Former Guy should have said, sad.
Religious Freedom or Religious Wars?
The ambivalence about religion described in the above post is making its way into the popular culture debates as well. An uncredited-in-advance Justice Samuel Alito gave a speech at a “Religious Liberty” summit in Rome (yes, the one in Italy) sponsored by the University of Notre Dame. The speech ran about 40 minutes, and Notre Dame has released the video of the entire thing (but not a transcript, although there are now computer programs to create that, with a little editing required). I’d like to repeat some excerpts of Justice Alito’s comments about religious liberty, to lay out the new issues arising from the current “turning away” from religion (or, speaking as a lifelong atheist, perhaps not-so-current) with which the law has to deal:
Religious liberty is under attack in many places, because it is dangerous to those who want to hold complete power. It also probably grows out of something dark and deep in the human DNA: a tendency to distrust and dislike people who are not like ourselves. I'm not very well positioned to talk about religious liberty outside the United States, Europe, and other economically advanced countries. But in those places, religious liberty is facing a different challenge. . . . This challenge stems from a turn away from religion. Polls show a significant increase in the percentage of the population that rejects religion or thinks it's just not all that important. And this has a very important impact on religious liberty, because it is hard to convince people that religious liberty is worth defending if they don't think that religion is a good thing that deserves protection.
I'm reminded of an experience I had a number of years ago in a museum in Berlin. One of the exhibits was a rustic wooden cross. A young, affluent, well dressed woman and a young [10-year-old] boy were looking at this exhibit. And the young boy turns to the woman, presumably his mother, and said, “Who is that man?” That memory has stuck in my mind as a harbinger of what may lie ahead for our culture.
And the problem that looms is not just indifference to religion, it's not just ignorance about religion. There's also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors. The challenge for those who want to protect religious liberty in the United States, Europe and other similar places is to convince people who are not religious that religious liberty is worth special protection. And that will not be easy to do. As most of you know, I think a dominant view among legal academics is that religion doesn't merit special protection. It doesn't merit special treatment. A liberal society, they say, should be value-neutral, and therefore it should treat religion just like any other passionate personal attachment, say rooting for a favorite sports team, pursuing a hobby or following a popular artist or group. Now, I think we would all agree that in a free society, people should be free to pursue those avocations. But do they really merit the same protection as the exercise of religion?
* * * * *
And all constitutions and charters and the case law of various countries impose limits on religious liberty. Here's an example the European Convention provides: that religious liberty is subject to — quote — “such limitations as are prescribed by law, and are necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” What sort of judge could not take language like that — and my point is not to criticize that particular language — but what sort of judge cannot take a limitation like that and shrink religious liberty as much as that judge wants? And if the judge does not highly esteem religious liberty, it can be shrunk all the way down to what people often talk about today. And that is freedom of worship. Freedom of worship means freedom to do these things that you like to do in the privacy of your home, or in your church or your synagogue or your mosque or your temple. But when you step outside into the public square, in the light of day, you had better behave yourself like a good secular citizen. That's the problem that we face. And I think we can see this sort of narrowing particularly in the area of religious speech in the jurisprudence of some countries that profess to be dedicated to freedom of speech, freedom of religion, and freedom of conscience.
* * * * *
All I'm going to say is that ultimately, if we are going to win the battle to protect religious freedom in an increasingly secular society, we will need more than positive law. Think again of the 10-year-old boy I saw in the Berlin Museum. Think of the increasing number of young Americans whose response when asked to name their religion, say none. Think of those who proclaim that religion is bad. What can we say to such people to convince them that religious liberty is worth protecting? That is the challenge. . . . So my primary point tonight is to pose that challenge to others, not to offer anything like a full answer, which I certainly don't have.
Nor do I. Shades of the Supreme Court’s decision in Kennedy v. Bremerton School District, where the court held that a public school football coach could pray silently on the field after games (the school district fired him for so doing). One of the issues raised at the Supreme Court was that the coach had often been joined by players during these silent prayers, and Justice Sotomayor’s dissent claimed that the players had been coerced to participate and that this conduct had caused a “severe disruption to school events”. Perhaps that was even true, but the problem with that claim was that there wasn’t one word of support in the lower court record to back it up, and under federal law an appellate court can only decide a case based on the factual record from the lower court.
But once again the law is no impediment to a SCOTUS judge reaching the decision she wants. Shades of William Brennan. The requirement that judges are supposed to implement the law, not their personal preferences, apparently would be news to Justice Sotomayor, but President “Pen & Phone”, aka Barack Obama, who appointed her, probably views her disregard for the written law as a feature rather than a bug. It seems like a perfect example of the point Justice Alito raised in his talk about a judge with (or, at least, claiming to have) unfettered discretion “shrink[ing] religious liberty as much as that judge wants”.
But I can’t turn away from this Rome speech without quoting Justice Alito’s “controversial” comments about the Dobbs decision, instead of excerpting them together with my opinion about them. I’ll leave it up to you to decide if they are really controversial:
Now, when I was putting these remarks together I was tempted at this point to provide some examples. I am not a diplomat, like Professor Glendon. I wouldn't be very bad about it — but it was unusual for me that this sort of a diplomatic impulse came upon me and I said to myself, you're an American judge, and what businesses is it of yours to criticize decisions that are handed down by foreign courts? I had a few second thoughts over the last few weeks since I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law. One of these was former Prime Minister Boris Johnson, but he paid the price. Post hoc ergo propter hoc, right?
But others are still are still in office, President Macron and Prime Minister Trudeau I believe are two. But what really wounded me, what really wounded me, was when the Duke of Sussex addressed the United Nations and seemed to compare “the decision whose name may not be spoken” with the Russian attack on Ukraine. Well, despite this temptation, I'm not going to talk about cases from other countries.
I have to admit that mocking Prince Harry and Princess Meghan (the erstwhile Duke and Duchess of Woke Sussex) never gets old for me. Your mileage may vary.
For a final topic, let’s return to the Supreme Court and the case we just noted that decided at the end of the term: Kennedy v. Bremerton School District.
When Life Gives You A Lemon, Make Lemonade
One of the doctrines embraced by the Warren and Burger Courts — or, collectively and perhaps more accurately, the Brennan Court, in honor of its dominant personality, Justice William Brennan, rather than the Chief Justices — was the Brennan Court’s creation of a wall around religion, interpreting Thomas Jefferson’s phrase that there should be a “wall of separation between church and state” to mean something very different than Jefferson intended.
Jefferson apparently first used the phrase while President, in a January 1, 1802 letter to a group of Connecticut Baptists. He wrote:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.
Jefferson had previously authored the Virginia Statute for Religious Freedom in 1777, although Virginia did not adopt it until 1786, when James Madison managed to get it revived to block a bill providing payment only for teachers of Christian religion (but for no other teachers). Jefferson’s view was that the state should not endorse a religion, but each person should be free to exercise the religion of his or her choice. This wasn’t necessarily a popular view, but it is consistent with the later language of the First Amendment.
Unfortunately, Jeffersonian democracy gave way to more overtly religious demonstrations over the next 150 years, including symbolic actions designed to show the difference between the religious United States and “godless Communism”. For example, federal recognition of the American Pledge of Allegiance, officially adopted by Congress in 1942, almost immediately led to a push to add the words “under God” to the Pledge, and those words were in fact formally added to the Pledge in 1954. Also, prior to the Brennan Court, the Supreme Court itself had ruled 6-3 in Zorach v. Clauson (1952) that a New York State law that permitted schools to allow some students to leave school during school hours for purposes of religious instruction or practice while requiring others to stay in school (under which the schools did not fund or otherwise assist in the development of these religious programs) was acceptable.
Against that backdrop, the Brennan Court, which (as we discussed previously) viewed the Constitution as something less than the supreme law of the land and something more akin to a backdrop for turning Justice Brennan’s political preferences into the law of the land, reinterpreted the “wall of separation of church and state” into a view that expressions of religion should be walled off from normal life.
In 1971, SCOTUS decided a case called Lemon v. Kurtzman, evaluating laws in Pennsylvania and Rhode Island that provided for the state to make payments to nonpublic schools with respect to the salaries of teachers at those schools who taught secular courses using secular textbooks. In striking down both statutes, SCOTUS created a three-part balancing test for cases involving religion, in order to implement Justice Brennan’s perceived wall of separation. Wikipedia describes the test, which became known as the Lemon test (after this case), as follows:
The statute must have a secular legislative purpose (also known as the Purpose Prong);
The principal or primary effect of the statute must neither advance nor inhibit religion (also known as the Effect Prong); and
The statute must not result in an "excessive government entanglement" with religion (also known as the Entanglement Prong).
But what does a phrase as unmoored in blackletter law as “excessive government entanglement” mean in real-world practice? As part of the Lemon test, the majority ruled that the following factors had to be considered under the Entanglement Prong:
Character and purpose of institution benefited;
Nature of aid the state provides; and
Resulting relationship between government and religious authority.
Per Lemon v. Kurtzman, if any of these prongs was violated, the government's action would be deemed unconstitutional under the Establishment Clause in the 1st Amendment. And the 8-1 majority held that “the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.” The majority opinion noted that 95% of the students in nonpublic schools and 100% of the reimbursements applied for under the Rhode Island statute were in schools affiliated with the Catholic Church, and, of the 20% of Pennsylvania students attending nonpublic schools, 96% were students in religious schools, mostly Catholic. In his separate concurrence, Justice Brennan wrote that:
The present cases . . . involve direct subsidies of tax monies to the schools themselves, and we cannot blink the fact that the secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.
Yet how does that tie in to the First Amendment prohibition that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”? Does this law contribute to an establishment of religion in any way, shape, or form? The students and their parents chose to attend those schools; they weren’t ordered to do so by the government. They freely chose their worship and their education options. But the majority goes on at length about the following risk (citations omitted):
A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare, and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.
Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process. To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief.
According to this, the majority adopted the Lemon test in large part because it was worried that there might be electoral debates about funding public schools versus funding parochial schools, which might be influenced by religion, and it wanted to head off those debates. Really? Was there something in the Constitution giving the Supreme Court the power to decide what type of electoral debates were permissible? Doesn’t this seem more like the Supreme Court acting to “prevent the free exercise” of religion, by holding that public schools are required to get all state funding for elementary schools, even when secular activities are involved?
Nevertheless, the Lemon test, including its malleable “excessive entanglement” standard, became the law. And the Brennan Court enforced it vigorously. For example, in Stone v. Graham (1980), the state legislature of Kentucky adopted a law that required the posting of the Judeo/Christian “Ten Commandments” in every public school classroom in the state. However, the law also required that the copies be donated and that each copy have a notation at the bottom that “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” Nevertheless, in a per curium summary opinion (issued solely on the briefs without oral argument), the Supreme Court held that this mandatory posting violated the Lemon test because the copies were being posted without a secular purpose.
Yet there were four dissenters to Stone, three of whom requested that the court hold a hearing. The fourth, then Justice (later Chief Justice) Rehnquist, wrote that:
The Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the [state trial] court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute's purpose in Establishment Clause cases and accords such pronouncements the deference they are due. . . . The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. . . . I therefore dissent from what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.
And in fact, the end of the reign of the Lemon test can be tied directly to Justice Rehnquist’s nomination to the position of Chief Justice and his replacement as an associate justice by Justice Scalia. The two of them were united in their dislike of the Lemon test, which Justice Scalia described in a concurrence to a 1993 opinion as follows (citations omitted):
Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts." Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. I will decline to apply Lemon--whether it validates or invalidates the government action in question--and therefore cannot join the opinion of the Court today.
And, as Justice Scalia noted almost 30 years ago, Lemon was rarely applied by the Rehnquist and Roberts Courts — but it wasn’t overruled. Thus, Lemon was still around to be applied by the lower courts in Kennedy v. Bremerton School District, and both the district court and the 9th Circuit held that Kennedy’s prayers constituted an “excessive entanglement” with religion: Kennedy was a government employee (a coach) who was behaving in a non-secular manner in public. And that was all the school district believed that it had to prove.
But SCOTUS finally stopped pretending that the Lemon test was still considered to be good law and, instead, turned the Lemon test into pulp. Perhaps it became lemonade.
Beware! Here Be Fakes!
Of course, if SCOTUS focuses on religious freedom, there are bound to be fakes who claim to find religious freedom in the least likely places. Back in the Jim Crow era, many bigots used to claim that their discrimination against blacks was part of their theology. Heck, that’s part of what led to pseudo-“balancing” tests like the Lemon test.
In the current political culture, it’s easy to believe that the only fakes are (1) those people longing for the return of Jim Crow (a group that I wouldn’t believe still existed if I hadn’t seen them rally behind The Former Guy), and (2) those people who claim that elections have been stolen from them by their political rivals — people ranging from The Former Guy to Stacy Abrams and Hillary Clinton. Crooked trash, in other words. But . . . how seriously should we take people who claim that their religious beliefs demanded that they discriminate against Asians? Isn’t that exactly equivalent to what the Jim Crow bigots said, except with a different victim?
You may say that nothing like that is happening or you would have heard about it. And you might even believe it. Well, I’m sorry to have to correct you.
In two cases to be argued before the Supreme Court this fall, Students for Fair Admissions, Inc. v. President and Fellows of Harvard University and Students for Fair Admissions, Inc. v. University of North Carolina, a consortium of 57 Catholic universities, including all of the best-known such as Notre Dame, Villanova, Georgetown, Boston College, Holy Cross, DePaul, and Marquette, have filed an amicus (friend-of-the-court) brief saying that using racial criteria that minimizes the number of Asians admitted is required by the Free Exercise Clause of the First Amendment The brief, written in part by former Stanford dean and Harvard professor Kathleen Sullivan, now a name partner at Quinn Emanuel Urquhart & Sullivan LLP, makes the following argument in favor of ethnic discrimination in admissions, which in the Orwellian doublespeak of “woke academia” is claimed to represent principles of nondiscrimination:
Based on their experience, amici respectfully submit that having a racially diverse student body serves their Catholic religious mission for at least four reasons.
First, diversity creates a dynamic learning environment that furthers the pedagogical goals of Catholic colleges and universities. . . .
Second, the dynamic growth students experience through a diverse environment, even if at times potentially challenging, enhances amici’s mission to increase tolerance, and thereby reduce racial stereotyping, in furtherance of the Catholic values of respect for the dignity of all persons and divine creation. . . .
Third, consistent with the commitment to the common good and social justice at the core of the Catholic faith, amici and other Catholic institutions of higher learning believe it is a moral imperative to ensure that talented members of underrepresented minority groups have access to the educational opportunities that will enable them to advance and contribute to the public good. . . .
Fourth, a diverse student community furthers amici’s Catholic mission of developing thoughtful, creative and diverse leaders who will be equipped to contribute to the Catholic goal of service to others after graduation. . . .
In short, the inclusion of students with diverse backgrounds and diverse racial identities advances not only the academic mission but also the religious mission of Catholic institutions of higher learning, allowing them to offer high-quality education and to shape future leaders who will make tangible contributions to the Catholic spiritual commitment to social justice and the common good.
It’s an interesting exercise in spin, because not once is there any actual reference to Catholic religious doctrine — or any reference to why these claimed religious values require the exclusion of higher-ranking Asian-Americans in favor of lower-ranking non-Asian-Americans. Re-reading it, the underlying ideas seems to be that (1) the excluded Asian-American students would be less “thoughtful and creative”, which is belied by their superior performance on the admissions tests (and if the admission tests have no value in that regard, create new ones!), and (2) only through selective discrimination can religious goals be advanced. Malarkey (or whatever less-polite name you call it) dies hard.
By the way, the cases will be argued on Halloween. Trick or treat!
Be seeing you.