Five years ago, Rand Paul, who at the time was running for his Kentucky Senate seat, created a minor controversy when he applied the rules of liberalism consistently and fairly. Asked about his thoughts on Title II of the 1964 Civil Right Act, which criminalizes “discrimination” by private businesses on the basis of race, Paul said what every libertarian should say. In essence, much as an individual has the right to think and say what he wants, he also has the right to engage in whatever economic activity he wants with whomever he wants. Such a right entails that a business owner can “discriminate” against custumers, much as costumers can “discriminate” against businesses they do not want to patron or employees can “discriminate” against employers by quitting.
As Paul said later, when he appeared on The Rachel Maddow Show:
Does the owner of the restaurant own his restaurant? Or does the government own his restaurant? These are important philosophical debates
We know the answer to this rhetorical question. The American economy is based on the construct of private property, but the government has ultimate dominion over property, in that it decides where rights begin and where they end, what is “exceptional” and what is not.
Michael Kinsley famously remarked that a political “gaffe” is when “a politician tells the truth–some obvious truth he isn’t supposed to say.” Rand Paul had stumbled upon a troublesome social “contradiction” (at least seen from the perspective of today): Racial identity and consciousness—even racial segregation—are not inherently incompatible with liberalism; indeed, citizens have a right to them!
Afterwards, Paul predictably backtracked and reiterated his commitment to racial togetherness. It was at this point that, in the minds of media liberals, he morphed from a quirky, antiwar civil libertarian into a crypto-racist apologist for capitalism.
Indiana’s “Religious Freedom Restoration Act,” which Governor Mike Pence signed into law on March 26, can be defended on the same liberal grounds that the Civil Rights Act can be criticized. In this line of thinking, the major problem with the law is that it hardly goes far enough. It limits free association to the devoutly religious and justifies it on the basis of monotheistic commandments. Does not everyone—believer and atheist alike—have the right to do business with whomever one choses, for any reason?
In reality, Indiana’s law is constrained by the federal government, to the same degree that property and freedom-of-association are contracted by the Civil Rights Act. The law itself makes this explicit:
[A] governmental entity may substantially burden a person’s exercise of religion . . . in furtherance of a compelling governmental interest.
Is there any doubt that a federal or state government would consider preventing discrimination against Blacks, Jews, religious minorities, and (in all likelihood) gays to be a “compelling interest”? On April 2, the Indiana legislature revised the law, doubling down on their effort not to encroach on the “discrimination” totem.
So what was the point?
Americans have a long-standing tendency to fight out political, demographic, and social struggles in the realm of legality and “rights.” Hence, the mid-20th-century racial struggles were articulated as ones of “state sovereignty,” much as White angst over demographic change is usually coached in terms of “illegal” immigrants.
In this way, the Indiana law is one more proxy in America’s endless “culture war.”
The culture war’s origins lie in the social and moral transformations that have come to be known as “The Sixties.” It took full form—as a Right/Left, old/young, rural/urban deadlock—with the reaction to these developments, in particular, the political realignment of the Nixon presidential campaigns and the “emerging Republican majority.”
To the lasting benefit of the GOP, Beltway conservative movement, and Religious Right, elections and political disputes took on a new symbolic quality: The patriotic “real” America battled against “progressives,” “elitists,” “anti-Americans,” “moral relativists,” and worse. In turn, the Indiana law is widely popular—and widely hated—because it stands as a token of middle-American Christian (and implicitly White) identity.
Thus, “Indiana” is much bigger than itself . . . and much smaller at the same time. Like every proxy in the culture war, it is a rallying cry and hot button with few serious consequences.
The actual legislation is, arguably, meaningless: It reiterates federal law and would not allow Christians to challenge the civil-right consensus in any serious way. The call for “religious freedom” is itself an implicit admission that White Christians no longer define American society; they are, to the contrary, pleading for toleration. It is fitting that the law’s most prominent real-world application involves a pizza parlor, whose owners would, hypothetically, refuse to cater a gay pizza wedding . . .
The law’s most avid defenders are the various celebrities and special-interest organizations of the Religious Right, a grouping whose power base is squarely Middle American and Southern White Christians. The Tony Perkins, Ralph Reeds, and Rick Santorums can best be understood as the Fake Right, and suitably they have become passionate about a fake controversy. The Fake Right creates political stunts that symbolize a greater cultural and racial struggle, but which are articulated as moral hot buttons and vague demands for equality.
This Fake Right finds its mirror reflection in the Fake Left, recently embodied by Apple CEO and soon-to-be billionaire Tim Cook. In an op-ed in the Washington Post, Cook packed in enough Americanist clichés to warm the heart of a 7th-grade civics teachers:
- “[W]e will never tolerate discrimination.”
- “Men and women have fought and died fighting to protect our country’s founding principles of freedom and equality.”
Perhaps the most amusing line was Cook’s assertion that to oppose Governor Pence and the Indiana legislation “takes courage.” This sentiment was echoed by various tech writers who expressed awe at Cook’s willingness to write such controversial, heart-felt prose shortly before the launch of a new product (the Apple Watch in late April).
The reality is that genuflecting to “anti-discrimination” entails little risk at all. It is, in fact, “good business” for a manufacturer on a global scale, which wants the iPhone and Apple Watch to become aspirational consumer products that transcend cultural and national barriers. Moreover, as a corporation with a $150 billion cash position and a market cap approaching three-quarters of a trillion—and which pays an effective tax rate of 26 percent—Apple benefits from depicting itself as an “open” even “leftist” entity, dedicated to “equality” and “diversity.”
Starbucks achieved a similar masterstroke of social marketing when it began advertising that it would donate a portion of its profits to charities fighting world hunger, AIDS in Africa, or whatever. The socially conscious consumer could thus have her caramel latte and eat it, too: She could indulge in first-world frivolities, while imagining that she were healing the wounds of exploitative capitalism. (Granted, Starbuck’s #Racetogether campaign seems to have been much less successful.)
It is easy to look at America’s endless culture war and conclude that the country is hopelessly divided, perhaps on the verge of a breakdown. This would be easy and wrong, for it overlooks a much broader stability.
The current social dispensation—of widely available divorce, of gradual racial displacement of Whites, of “equality” as the highest moral goal—has been settled for some time. The culture war is symbolic in the sense that each side is battling over inches—or new hot-buttons and fundraising slogans for the next election. (With “the War on Women” exhausted, perhaps “Indiana” will emerge as the inane meme to define 2016?)
The Fake Right and Left both play important roles in achieving this stability. After all, if they did not exist, then something authentic and dangerous might arise in their place.
- As many have pointed out, the text of the Indiana law is based on a federal version introduced by Senators Chuck Schumer and Ted Kennedy, and enacted by Bill Clinton. Some have stressed the differences between the two, but these are mostly of context and perceived intent: The 1993 law is directed towards immigrant minorities; the Indiana law is directed towards White Christians. ↩
- As a global manufacturer, Apple wants to be “open.” To “discriminate” against customers would be an insane business decision. This was not the case, however, for the small business owners in the restaurant and service sectors who engaged in the 1950s and ‘60s segregation struggles. For them, discriminating against “bad customers” was a necessity in maintaining an atmosphere conducive to a profitable business. Modern conservatives, who avidly support the Civil Rights Act, often gloss over this point by claiming that segregation was “bad business.” To the contrary, at least in the case of Southern small business owners, it was rational. ↩