To the Progressive, Facts Are the Enemy of Certainty
Whenever they need to ignore objective reality, history, and constitutionality progressives just love to say that certainty is not possible. It’s as if they’ve stepped through a looking glass into a world of make-believe where the only reality they can be sure of is their own self-serving narrative. This handy two-step has become their default response whenever observational evidence and common sense are stacked against them, so when we see it we he should start peeling the onion to find the rot that sleek surface is hiding.
A simple example of how this two-step works is Obama’s harebrained initiative to force America to accept transgender bathrooms by claiming gender defines sex, and not the other way around. Once the switch gains currency, it takes more than just unzipping his fly to prove a male predator has no business haunting the girls’ locker room. After all, no one can determine anyone’s gender for them, so claims that denying them access violates the rights of the sexually bewildered sprout like mushrooms.
It should be no surprise that the federal judiciary has provided abundant ideological support for this strategy. Most of us are quite aware of progressive bias. Yet, recognizing a judicial two-step and effectively debunking it can call for some serious digging, because the thing we need to discredit isn’t the ideological bias itself -- which is obvious -- but the mechanisms by which it politicizes the courts, corrupts the media, and rots the culture.
For instance, it’s not immediately apparent why the three-prong structure of the Lemon test invites progressives to weave a web of lies about the establishment clause. Yet it does. One of their favorite ways of wriggling out of ideological corners is by obsessing over an “actual” legislative purpose while suppressing the law’s statutory language and practical effect, then striking it down with conjecture based on anecdotal evidence. Done well, the narrative they spin can sound pretty convincing; but it crashes and burns the moment we state plainly their unspoken premise, one that’s an insult to common sense:
“We can strike down a law without asking what it says or does.”
O’Connor’s concurrence with Wallace v. Jaffree removes any doubt that’s exactly what the progressives did in 1985 to fight off a challenge to their expansion of federal power. Although she recognized the reality that there’s no threat to religious liberty in “a room of silent, thoughtful schoolchildren,” O’Connor condemned the law nonetheless.
I agree with the Court that the State intended 16-1-20.1 to convey a message that prayer was the endorsed activity during the state-prescribed moment of silence. While it is therefore unnecessary also to determine the effect of the statute, it also seems likely that the message actually conveyed to objective observers by 16-1-20.1 is approval of the child who selects prayer over other alternatives during a moment of silence. [my emphasis]
A perfect two-step. And pure baloney. The thoughtful children are banished, and her decision rests on the perception of a message to endorse religion that the government “conveyed or attempted to convey.” According to O’Connor, this perception of an abstraction by a term of art produces the politically correct result even if the government’s attempt fails and has no observable effect, since that’s what “attempted to convey” means when it’s placed in juxtaposition with “conveyed.”
As if on cue, Ishmael Jaffree admitted in an interview that he hadn’t gotten the message O’Connor’s objective observer “perceived” because the Alabama moment of silence law had done him no harm.
Undeterred, Justice Stevens took O’Connor’s fantasy one step farther in his majority opinion, asserting that the finding of the trial court made it “unnecessary, and indeed inappropriate, to evaluate the practical significance of the addition of the words "or voluntary prayer" to the statute.” [my emphasis] This despite the fact that the district court had gone entirely rogue, “reversing” Engel v. Vitale and Abington v. Schempp by ruling that Alabama had the constitutional authority to establish a state religion. Stevens not only asserted his ability to strike down a law without asking what it says or does, he said the court must do so, kicking his arrogance up a notch with another unspoken premise:
“This court must not question a politically correct decision because it might find it’s wrong.”
Adding a final touch to this study in objectivity and sound logic, O’Connor supported her decision with an example.
[A] moment of silence statute, either as drafted or as actually implemented, could effectively favor the child who prays over the child who does not. For example, the message of endorsement would seem inescapable if the teacher exhorts children to use the designated time to pray. [my emphasis]
The clauses in italics suggest two more unspoken premises, and the first one is a real doozy:
“The purpose is the effect because the effect is the purpose.”
This would appear to nullify the separation of powers by hopelessly confusing the legislative (drafted) and executive (implemented) functions, and as unlikely as that may seem, it’s made unmistakable by
“Legislative purpose is established retroactively by violating the law.”
Despite the fact, of course, that both O’Connor and Stevens have declared such practical effects of the law irrelevant, and Stevens has gone one step farther by saying they must be suppressed, even though his decision in Wallace rests squarely on the words "or voluntary prayer."
If any doubt lingers that O’Connor confused effect with purpose, and that her motives for doing so may not have been pure, perhaps one more sample of her confusion will help. Here’s O’Connor’s take on the progressives’ hallowed Neutrality Doctrine:
The solution to the conflict between the Religion Clauses lies not in "neutrality," but rather in identifying workable limits to the government's license to promote the free exercise of religion.
Forget, for the moment, that government promotion of free exercise is a contradiction in terms; but remember that in progressive establishment clause dogma taking religious sides is an automatic law killer. O’Connor’s babbling about striking some sort of free exercise balance has nothing to do with accommodation because setting “workable limits” on the government’s “license” to violate the First Amendment is dividing by zero.
The real key to this two-step is the designation of the government as a proxy for the Christian majority. O’Connor is practicing one of the very foulest progressive deceptions: she’s justifying an assault on religious expression by identifying the government, not the individual Christian, as the object of the court’s hostility.
She’s not only wrong, she’s in bad company. O’Connor’s following the example of the progressive Founder of the Feast, William Brennan, in his Schempp concurrence:
Inevitably, insistence upon neutrality, vital as it surely is for untrammeled religious liberty, may appear to border upon religious hostility. But… freedom of religion will be seriously jeopardized if we admit exceptions for no better reason than the difficulty of delineating hostility from neutrality in the closest cases.
I call this Brennan’s paradox. The English translation: “The court's hostility toward Christians secures religious liberty for all.” By limiting, not promoting, religious expression. I guess that makes sense coming from a judge who had a problem with the free exercise clause because it interfered with the Warren Court’s establishment clause activism.
Progressive two-stepping may sometimes seem hilarious, and it can often be held up to ridicule because its narrative makes no sense; but in Wallace and a raft of similar establishment clause opinions it serves a deadly serious purpose that goes far beyond religion. For decades the establishment clause has been the fire hardened tip of the left’s ideological spear, so the district court’s challenge to incorporation under the Fourteenth Amendment made Wallace a political battleground, pitting advocates of limited government in the Reagan administration against far-left separationists, who saw it as an existential threat.
That is, it had the potential to inflict the kind of damage Souter would describe in McCreary v. Kentucky ACLU as “seismic.” Ending the left’s flagrant abuse of the purpose test -- specifically, as it was abused in Wallace -- would undermine decades of progressive precedent. And that’s the bottom line. When progressives see Christians’ religious liberty as that kind of threat, someone’s religious rights are going to burn. In O’Connor’s looking-glass world, where a conjectural effect is exploited to gin up an “actual” purpose and then gets thrown away, it’s the government’s; but on reality’s side of the mirror it’s a Christian baker in Oregon who pays the fine.
Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at firstname.lastname@example.org.