Yale Law School, like others, makes provisions for prospective employers to interview students on campus. In December 1994, the Christian Legal Society (CLS), a national organization that has hired Yale students before and has many Yale graduates as members, applied to take part in the February 1995 interview process. The Yale application form stipulates that employers must take a pledge not to discriminate on the basis of, inter alia, religion. With its application, CLS sent a letter pointing out that it is of course a religious organization, that it takes religion into account in hiring, and that it assumes Yale recognizes the pertinent exemption for religion stipulated in, for instance, Title VII of the Civil Rights Act and other laws.
Not at all, responded Barbara Safriet, associate dean of the Law School. “While I do not question the sincerity of your organization's beliefs, I must affirm Yale Law School's equally strong commitment to the views articulated in its nondiscrimination policy.” CLS is excluded from the hiring program. Gregory Baylor, assistant director of CLS, promptly wrote back that Yale's position means that “CLS must alter its religious beliefs to gain access” to the program. “Does Yale Law School really intend to pressure religious nonprofits like CLS to alter their religious beliefs? If so, why? We assume that it is not because you disagree with our interpretation of Scripture or because you believe that Scripture is not a reliable basis for decision making.” He again cited laws and court decisions upholding religious exemptions from nondiscrimination regulations.
The curt answer from Safriet was uncompromising: “We cannot offer our placement services to employers who, for whatever reason, do not abide by our nondiscrimination policy in its entirety.” A few months later, in July 1995, CLS wrote again, pointing out that Harvard Law School had at first excluded CLS from its interview program, but when a couple of Harvard law professors got wind of it they promptly went to the front office and had that policy reversed. The Harvard professors, it should be noted, were Mary Ann Glendon and Alan Dershowitz, who disagree on many things but are strongly opposed to antireligious bigotry. No matter. The answer from Yale was that Harvard is not Yale.
By this time, a number of prominent Yale alumni and experts on religion and law had written Yale's dean, Anthony Kronman, protesting the school's exclusionary policy. The experts included such worthies as Marc Stern of the American Jewish Congress, Dean Kelley of the National Council of Churches, and Forest Montgomery of the National Association of Evangelicals. “A public institution,” they pointed out, “would be prohibited from penalizing religious employers for exercising their rights under the First Amendment as well as federal statutes.” The implication was that independent institutions, such as Yale Law School, should be able to go farther than government agencies in respecting diversity, especially the free exercise of religion.
Beginning with Dean Kronman's response of August 8, 1995, it would become evident that quite the opposite is the case. One of the pleasures of a private school is that you can be as discriminatory (against religion) as you wish. “The Law School has made a lasting commitment to oppose discrimination against its students on the basis of race, sex, and sexual orientation, among other considerations. . . . To do anything else would be to act contrary to our own ideals and sense of community,” declard Kronman. Nonetheless, the dean said he would take up the CLS matter with a faculty committee. Since Kronman had raised the question of sexual orientation, Baylor responded for CLS that a religious organization has a right to take “sexual conduct” into account when making hiring decisions. He awaited the outcome of the faculty's deliberation.
And he waited. Four months later, on December 8, he wrote inquiring what was happening, since Kronman had said that the faculty would consider the matter “at an early date.” The dean responded with a brief note explaining that the pertinent committee “has been late getting started.” Yet another six months passed and CLS had still heard nothing. On June 6, 1996, Baylor wrote: “I do appreciate the possible sensitivity of this issue on your campus and the suitability of a careful analysis. However, the long delay is becoming increasingly unacceptable, especially given the remarkable consensus among religious groups of divergent ideologies and faiths on this issue. Although I can only speculate, it is difficult to imagine that Yale would procrastinate so badly on a matter involving some other ‘constituency.'”
A month later, Dean Kronman came back with the definitive answer. The committee had concluded that Yale should allow no exemptions on religious or other grounds. “Exclusion on any of these grounds would be antithetical to the community the Law School aspires to create. . . . The ideal of community that animates the life of the School demands this.” If Yale's view of nondiscrimination gets in the way of the free exercise of religion, too bad for the free exercise of religion. Constitutional protections of free exercise may be fine for government and lesser institutions, but they do not fit Yale's “ideal of community.” As Chevy Chase might have said, “We're Yale Law School—and you're not.”
As it happens, Dean Kronman deems himself something of an expert on the ethics of civil community. In a 1993 book, published, one notes, by Harvard University Press (The Lost Lawyer: Failing Ideals of the Legal Profession), the dean is eloquent on the need for “political fraternity.” “Tolerance, unaccompanied by the spirit of sympathetic fellow-feeling that distinguishes the condition of political fraternity, is not enough,” he declares. “For political fraternity to exist, it is not necessary that the different views which the members of a community take of its values and purposes all be assessable from some common point of view. Indeed the demand for political fraternity is likely to be greatest in just those situations where the competing conceptions of the disputants are not comparable in this way.” It is necessary “to see the concerns of others in their best light.” We are sometimes presented with “a conflict among incommensurable values, and if a community is to survive such disagreements, it is reasonable to think that it needs something more than disinterested toleration. What it needs is political fraternity.”
Precisely. As, for instance, in trying to engage in “the spirit of sympathetic fellow-feeling” and to understand in the “best light” the “incommensurable values” of Christians and Jews who think that organizations devoted to advancing their religious purposes should reasonably take religion into account in hiring people. Or, to put it more simply, as in having a decent respect for the free exercise of religion.
It turns out that Dean Kronman's “spirit of sympathetic fellow-feeling” is rather anemic. It certainly does not extend to the millions of fellow-citizens whom he consigns to the darkness of the “Religious Right.” He was invited to give a lecture, in February 1996, at Cumberland School of Law in Birmingham, Alabama. He chose as his topic “Civility.” The quality of the dean's civility is very strained indeed. The members of what he calls the religious right are not legitimate participants in the political community, he asserts, because they “treat politics in a strictly instrumental fashion” for promoting other ends, namely, the family and church. The “decrease in the appetite for citizenship,” Kronman claimed, “correlates with an increasing devotion to family and church.” It follows that such people are not really concerned for the “common good.”
Set aside for the moment that this ludicrous claim is contrary to all we know from the social sciences, and contrary to the keenest analyses of American democracy from Tocqueville to the present day. Set aside, I say, Dean Kronman's thoroughly muddled understanding of how our society and polity work. One is even more struck by the irony that his exclusive identification of authentic citizenship with concern for the polis as a whole is logically antithetical to his own flaunting of Yale's private status, by virtue of which it has the right to defy both constitutional protections and common decencies when it comes to respecting the free exercise of religion. It would seem that the “decrease in the appetite for citizenship” does indeed correlate with a rigid devotion to “the ideal of community that animates the life” of Yale Law School. The confused contentions of Dean Kronman suggest that he—and, according to him, his colleagues—are prone to an antireligious bigotry that is the enemy of the civility he claims to champion.
The Creeping Coup D'Etat
At age eighty-four, Mr. Park Chamberlain of Woodside, California, now retired from practice, has had a lot of time to think about matters judicial, and he has been especially pleased by our pressing the question of the judicial usurpation of politics. From 1934 to 1937 he studied at Yale Law School under worthies such as William O. Douglas, Abe Fortas, Thurman Arnold, and Fred Rodell. That was during the New Deal when the Nine Old Men on the Supreme Court were threatening what today would be called Big Government. His worthy teachers—all “liberals” according to the nomenclature of the day—drummed into their students the premier lesson of “the wickedness of judicial resistance to the popular will.”
The times were exciting, Mr. Chamberlain writes. “To be young was very heaven. Over the teacups in our lounge we debated ways of bringing the lawless judges to heel, and similar discussion filled the law journals and newspaper editorials.” The great question so urgently posed then was: Can democracy survive under so powerful a nonelected body? As it happened, FDR managed to restructure the Court and the sense of crisis subsided. Folks at Yale settled back to enjoy what was anticipated as a golden age of judicial restraint. “How then can it be,” writes Mr. Chamberlain, “that now some six decades later, the Supreme Court and its judicial underlings have taken over the minutest detail of state and federal prison administration, state criminal procedure, state educational systems, the approval or disapproval of books in public libraries and lastly—indeed as a necessity to support the grandiose programs ordained—even the taxing power.”
The great change came, Mr. Chamberlain believes, with the Warren Court and the 1954 Brown decision. Before that, judicial review entailed a negative veto power; in striking down a law, the Court simply said, “You can't do that.” Now the Court began to exercise what Chamberlain calls a “positive veto.” After saying what could not be done, the Court now adds: “And therefore you must do this, and exactly this and only this; and to see that you do, we will pursue you like avenging furies over the years, directing and overseeing your each and every act, and furthermore (and what a furthermore) if what we command you to do costs more money than you can legally raise, we will not only order you to raise taxes, but specifically compel you to levy taxes as we shall dictate.”
In what Mr. Chamberlain terms a “creeping coup d'etat,” the Court transformed its judicial role into a legislative role, and assumed executive powers in implementing its own laws. As for the People, sometimes referred to as “the fourth branch of government,” they can safely be ignored by judges who are accountable to nobody but themselves. Chamberlain writes, “What we have seen, of course, is a coup d'etat—just as blatantly a coup d'etat as any lawless takeover of government in a banana republic. The principal difference is, of course, that it has not been sudden and bloody, but mostly peaceful and bit by bit.”
And as for his revered teachers, Douglas, Fortas, Arnold, Rodell, et al., they quickly appreciated the great good that could be done (at least by their lights) through judicial ukase, and reversed their principles of constitutional interpretation, drumming into the heads of another generation of students the great wickedness of popular resistance to the judicial will, precisely the opposite of what they taught Mr. Chamberlain and his classmates. So what is to be done? Mr. Chamberlain notes that in California a long-suffering but finally enraged electorate reasserted its right to govern by booting three imperial judges off its Supreme Court. “Let us hope that some day (after my time, alas) we will see a restoration of the power in the people to mete out the same fate to federal judges who have been faithless to their trust.”
A creeping coup d'etat. Not a bad phrase, that. Also useful is the distinction between a negative and positive veto, between the Court's proscriptive and prescriptive powers. William F. Buckley has recently written: “Some of the issues raised by [First Things—>www.firstthings.com] point to ultimate divisions; others derive from temperamental reflexes. In the abstract, the point is obviously reachable when a rogue society forfeits the loyalty of responsible and courageous citizens. It is not always easy to recognize that point, which often passes by societies that wake to find a despotism in power.”
As we have insisted in these pages, this government has not forfeited the loyalty of its citizens, but the judicial usurpation of politics does constitute a despotism in the making, and partly in place. It is gratifying to see other publications taking up this question with the urgency that it deserves. Thanks in part to the timely action of a federal judge in California who decided that his one vote nullifies the judgment of 55 percent of the electorate who voted to end racial and other discriminations in the form of affirmative action. Some readers have complained that the discussion of judicial usurpation so far has been short on remedies. As the discussion continues, possible remedies will be canvassed with care. For starters, however, it is no little thing that we be aroused from sleep.