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E-Pluribus | September 2, 2021
A positive retreat by the Biden administration; just the facts, ma'am; and what (if anything) masks and vaccines have to do with religious liberty.
A round up of the latest and best writing and musings on the rise of illiberalism in the public discourse:
Wall Street Journal Editorial Board: A Retreat on Racial Preferences
The Biden administration’s Justice Department made an unexpected but welcome decision last week by declining to appeal an injunction against a USDA loan forgiveness program for “socially disadvantaged” farmers that the USDA had interpreted in explicit racial terms. While it’s unlikely this represents an across the board shift by Justice, at least in this case the prospect of losing an appeal is a small victory in the battle against government sponsored race-based discrimination.
The farmers program is a blatant violation of the Constitution’s equal protection clause. In Parents Involved in Community Schools v. Seattle School District (2007), the Court held “[W]hen the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.”
The USDA program also runs afoul of the Court’s Richmond v. Croson (1989) precedent, which let governments adopt racial set-asides aimed at remedying specific episodes of past discrimination that the government had a hand in. But Justice doesn’t identify a specific incident of discrimination against minority farmers perpetuated by USDA.
Some governments have taken Croson as a license to use racial preferences on the sly. By declining to appeal the Florida injunction, Justice may be hoping to deny the High Court and its new majority an opportunity to issue a more forceful ruling against racial preferences.
Read it all here.
Cathy Young: "Critical Race Theory," Racism, and Just the Facts
Debates over Critical Race Theory are contentious enough without injecting the stories with misleading and prejudicial information. Cathy Young relates the facts surrounding a controversy in Texas regarding CRT, a suspended principal, and some anniversary photos. (Disclosure: I waded into this issue myself on Twitter as well.)
The facts of the story, so far, are fuzzy. Some parents criticized Colleyville Heritage High School Principal James Whitfield—the first black principal in the school’s 25-year history—at a school board meeting in July. According to The New York Times:
Some speakers who identified themselves as parents complained of a “social justice” focus in the curriculum or criticized “political activism” concerning race in the district, which includes most of Grapevine and Colleyville, as well as other parts of the Dallas-Fort Worth area.
In particular, a man identified as Stetson Clark assailed “critical race theory” and accused Whitfield of promoting the “conspiracy theory” of “systemic racism” (which he defined as the belief that all institutions in America are deliberately designed with the intent of oppressing nonwhite people). He complained that Whitfield had encouraged “all members of our community to become revolutionaries by becoming antiracists” in an email following the murder of George Floyd—and had recommended some overly radical texts.
In talking to the media, Whitfield also brought up a previous incident in which a complaint was made about the wedding anniversary photos of himself and his white wife. That complaint was completely unrelated to the “CRT” controversy and was made in 2019, shortly after he took the position. (There is also precisely zero evidence that whoever made the complaint about the photos was also part of the anti-“CRT” backlash.) The Washington Post, whose initial report suggested that the complaint was connected to the dispute, has issued a correction:
An earlier version of this story incorrectly reported the date a parent complained about Principal James Whitfield’s social media photos. The complaint was made in 2019. The story has been corrected.
The photos, which the district has now released, are not just of Whitfield hugging his wife; while they are certainly not even close to being obscene, some of them are quite intimate and a bit, well, steamy. There’s a difference between hugging and making out.
Should Whitfield have been asked to remove the photos? No. Should he have been suspended? We don’t have all the facts. What we do know is that the story was egregiously misreported. The initial account misstated the date of the complaint about the photo, wrongly implied that it was linked to the complaints about “CRT,” and gave a misleading description of the photo—all in a way that suggested a clearcut racist incident. Then, when the errors were corrected and the facts turned out to be much more complex, the narrative changed to “but it still has to be racial.” It’s because of things like this that many people have issues with “anti-racism” in its current form.
Read the whole thing.
Russell Moore: What Mask and Vaccine Mandates Mean for Religious Liberty
Over the past year and a half, mask wearing has taken on significance of Biblical proportions for a fair number of evangelicals. In a recent newsletter, Russell Moore, formerly the president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, makes the case that whatever issues may be raised by mask regulations and mandates, religious liberty is not one of them.
I spent the last eight years working on religious freedom issues in the United States Congress, in the courts, in state legislatures, and with interest groups across the spectrum. I can tell you that I came across very few, if any, people who would say, “I hate the First Amendment; let’s outlaw religion.” Most people who would object to religious liberty would say that it means “a card to say you can do whatever you want.” They usually include some extreme example: “So are you saying that a religion that believes in human sacrifice should be able to kill people on an altar?” Or they would say, “So religious freedom means you can play with fire in a church building and not allow the fire department in when the building’s aflame with people trapped therein?”
No. Religious freedom doesn’t mean that—and never has. Religious freedom has always recognized, as with any other freedom, that no liberty is absolute. Religious liberty means, among other things, that a government restricting liberties should demonstrate a compelling public interest and should show that it has followed the least restrictive path to getting to that outcome.
We all have ideas about things for cultural or political reasons—and we should argue those things in those terms. If we call religious liberty what is not religious liberty, we jeopardize religious liberty.
You might think it’s a restriction of your Second Amendment rights that you can’t fire a gun into the air in the French Quarter of New Orleans on New Year’s Eve. That doesn’t give you the right to do so, when other people could be hurt.
The “boy who cried wolf” is a cliché, but clichés become clichés usually because they are so demonstrably true. If we call schools asking for proof of COVID-19 vaccination a religious liberty violation when we didn’t do so for proof of polio vaccination, we are not talking about religious liberty. When we rail against mask requirements for school when we never did for the school dress code, we are not talking about religious liberty. And once we define religious liberty as our right to carry out our political opinions regardless of how they affect public health or safety, we have defined religious liberty right out of its meaning.
Read it all.
The ACLU has a new take on civil liberties:
Via Ryan T. Anderson, the Ethics and Public Policy Center is holding an event framed around Anderson’s and Robert P. Georges 2019 essay “The Baby and the Bathwater: Toward a Recovery of the American Idea” that attempts to point out and recover the best elements of classical liberalism for the betterment of our society.
Matt Taibbi takes issue with NPR’s take on free speech:
And finally, via Bari Weiss and the Foundation Against Intolerance & Racism, the story of a modern day Underground Railroad in Afghanistan: