Today I spent my lunch hour with my stomach being twisted in knots. The food wasn’t bad – the problem was that I was reading a draft of an article that David Schraub’s going to have published in Dartmouth Law Review later this year.
To read it you’ll have to follow the link and register before you can download it. As I commented on the original post, it’s a well-written and logically put together argument. David is a bright young man who’s probably smarter now than I ever was. Wisdom, however, doesn’t come from intelligence; rather, it comes from understanding. That, I think, is lacking.
I don’t want to pick his article apart, particularly since it hasn’t been published yet, but I can’t quite bear to let it alone either, not after ruining a perfectly good lunch hour over it.
Thinking about yesterday’s link to Marc Schulman’s essay about George Orwell’s debate with the left, I don’t think that David has not sunk to the level of the deliberately self-destructive leftist dilletante. But his opinion that minority religions should be given legal preference in U.S. courts via a new interpretation of church/state separation called “anti-subordination” is too dangerous leave unchallenged.
This statement captures the essence of Schraub’s complaint:
Generally speaking, a view from the perspective of the minority group will not condition equality on sameness with the majority, but rather will define equality as equal entitlement to pursue their own conception of the good. At the very least, an affirmative effort to include subordinated perspectives into legal discourse would enhance their moral and democratic legitimacy
And this is his remedy:
We would be better served to view religion clause controversies from the perspective of the religious minority, with an affirmative goal of remedying their subordination, and then perhaps weigh those concerns against other values necessary for maintaining a liberal, tolerant, democratic society.
Schraub’s minority religion of choice is Judaism, a fine bunch of fellows who haven’t been treated fairly in any country in the world except the U.S. Who would begrudge the Jews a few special favors after the Holocaust?
Me, for one. Read the paper and substitute the word “Islamic” for “Jewish”. In this context Schraub’s remedy is a disaster in the making given the world situation and its trend for the worse where Muslim terrorism is concerned.
On one hand we have a solid, logical argument in favor of enhancing the legal status of a benign religious group. What could be wrong with that? But on the other hand there is an unstated implication that a majority of Americans’ religious freedoms would and must be held legally subordinate those whose faith is directly responsible for mass murder on an international scale. All of this follows if Schraub’s standard of separation is implemented.
That’s what I mean by wisdom and the lack of it.
The truth as I see it is that Schraub’s argument is flawed from the outset. Separation of church and state is not definitively defined in the Constitution. It is a subjective state derived from precedent, one that he claims allows an inherent Christian bias and discriminates against Jews (and Muslims, although I rather think that David would approve of this, as I do).
To that my response is: “So what?” The Constitution and the form of legal precendent was established by Christians, for Christians, and its protections designed for various sects thereof. That it allows for Jews, Muslims, Mormons, Hindus, et al, to practice their religions freely is proof of its inherent wisdom but not of its equanimity toward all creeds and their practices.
This is perhaps best exemplified by U.S. laws precluding polygamous marriages. Although many religions regard this as a fundamental right of its male practicioners, it is legally unacceptable in the U.S.
Why? Because Christianity disallows it. As I’ve said before, America is a Christian nation, like it or not. Those who come here expecting to change our way of life by exploiting the letter of our laws are in the wrong and not our customs.
A second argument I would put forth is that the legal system does not, in fact, favor Christians. Did it favor Judge Roy Moore when the boom fell on him and his monument to the 10 Commandments? Did it favor the city of Houston in regard to its display of the Bible at the local courthouse?
No. In both cases the beliefs of the majority of Americas were trampled at the altar of separation of church and state.
The irony is that Schraub, acting in his role as a Jewish activist, would usher in changes that would inevitably lead to greater Muslim dominance in our society. Jewish people have never had and never will have a better home on Earth than the one they have in the U.S.
Wisdom would dictate ensuring the status quo is maintained rather than compromised.
The problem in all of this isn’t that a bright young man made what I believe are a series of thoughtless errors. I’ve done far worse here on this blog. My fear is that time won’t correct the problems in the thought processes of his generation. That’s why I spent my time writing this instead of doing something I’d enjoy. Hopefully it will make a difference.