The Hedgehog Review: Vol. 17 No. 3 (Fall 2015)
Across the Great Divides: Why America Needs a More Confident Pluralism
Observers of culture wars, past and present, would be hard-pressed to find two more fiercely antipodal figures than Jerry Falwell and Larry Flynt. Falwell (who died in 2007) was a Southern Baptist preacher and the founder of the Moral Majority, a conservative Christian political organization that rose to prominence in the 1980s. Flynt is the founder of Hustler magazine and a giant of the pornography industry. Falwell blamed the September 11, 2001, terrorist attacks on “the pagans and the abortionists and the feminists and the gays and the lesbians, … the ACLU, People for the American Way—all of them who have tried to secularize America.” Flynt once called on God to afflict a conservative news anchor “with a brain aneurysm that will lead to his slow and painful death.”1
The two men did not think much of each other. During the 1970s, Falwell repeatedly condemned Flynt’s line of work. As Flynt said, “He called me every terrible name he could think of—names as bad, in my opinion, as any language used in my magazine.” Flynt eventually took offense. In 1983, he published a parody of Falwell using a then-famous advertisement for Campari liqueur. The advertisement relied on a double entendre that compared the “first time” a particular celebrity had tasted Campari to the celebrity’s first sexual experience. In Flynt’s spoof, Falwell described his “first time” as being with his mother, while they were “drunk off our God-fearing asses.” In the parody, Falwell explained that “Mom looked better than a Baptist whore with a $100 donation,” and claimed he decided to have sex with her because she had “showed all the other guys in town such a good time.” For good measure, Flynt threw in a line about Falwell’s preaching: “I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?”2
Flynt’s spoof led to a famous Supreme Court decision that, among other things, upheld Flynt’s right to publish the parody.3 The litigation proved contentious throughout. During his deposition, Falwell’s lawyers asked Flynt if his objective in the spoof had been to destroy or harm Falwell’s reputation. Flynt, not one to mince words, replied: “To assassinate it.”4
The End of Pluralism?
“It is impossible,” said the French philosopher Jean-Jacques Rousseau, “to live at peace with those we regard as damned.” Falwell and Flynt certainly seemed to fulfill Rousseau’s dire prediction. Many of the rest of us do, too. From hostility to civil-rights protests in Missouri, to anti-Muslim protests in Oklahoma, to culture wars boycotts, we struggle to live with those whose views we regard as irrational, immoral, or even dangerous.
Sometimes our disagreements play out in overblown rhetoric. Consider the ferocious debate that erupted over an Indiana religious liberty law in March 2015. Conservative radio host Mark Levin contended that opponents of the law “hate America.” Family Research Council president Tony Perkins argued that any changes to the law “would gut religious freedom in Indiana.” In the other direction, Apple CEO Tim Cook was just as hyperbolic, calling the law a “very dangerous” effort to “enshrine discrimination” and “rationalize injustice.” And journalist Ben Kepes worried that the law “feels very much like a prelude to another Kristallnacht.”5
The actual legal debate focused on whether a few Christian florists and cake bakers (and, apparently, one hapless pizza joint) could refuse to provide their services for a same-sex wedding. That question is not trivial, and had powerful symbolic meaning for both sides, but the policy implications did not merit the overheated rhetoric—or portend the kind of consequences the rhetoric suggested.
Sometimes our antipathy toward others extends beyond words. In 2012, North Carolina voters approved an amendment that constitutionalized the state’s definition of marriage as being between a man and a woman and invalidated other forms of “domestic legal union.” The amendment potentially jeopardized protections for gays and lesbians in family law, domestic violence law, estate planning, and employee benefits.6
In November 2014, Alabama voters approved a constitutional amendment prohibiting state courts from applying foreign laws that would violate state or federal law. The amendment—the result of much fear-mongering about the incursions of sharia law—had no legal consequences; it was, as University of Alabama law professor Paul Horwitz noted, “completely redundant” in light of existing laws. But it was not without symbolic effect, and traded on anti-Muslim hostility to draw voters to the ballot box. More than thirty states have considered similar amendments or legislation.7
Across the state of California today, many conservative religious student groups are no longer welcome on the campuses of many public colleges and universities. And it’s not just a West Coast thing. Vanderbilt University, Bowdoin College, and a number of other schools have also forced such groups off their campuses. These schools rely on “all-comers” policies that require student groups to admit as members—and even leaders—any student who wishes to participate. The Republican club must accept Democrats. The pro-choice club must accept pro-lifers. Conservative religious groups with membership or leadership restrictions are unable to comply. These policies send a clear message to these groups: Change or leave.8
Even as some of us struggle to coexist, others feign agreement by ignoring or minimizing our stark differences. We hold conferences, attend rallies, and sign statements expressing unity and solidarity. But most of us do not actually think that our differences are so easily overcome. And most of us do not actually want to see a thousand flowers bloom. We can all name things we think the world would be better off without. This is especially true when it comes to questions of morality and ultimate conviction. We might prefer a society in which everyone agreed on what counted as a justifiable homicide, a mean temperament, or a good life, but that is not the kind of society in which we actually live.
There is another possibility that better embraces the reality of our deepest differences: confident pluralism. Confident pluralism insists that Rousseau was wrong: Our shared existence is not only possible, but necessary. Instead of the elusive goal of E pluribus unum (“Out of many, one”), confident pluralism suggests a more modest possibility—that we can live together in our “many-ness.” It does not require Pollyanna-ish illusions that we will resolve our differences and live happily ever after. Instead, it asks us to pursue a common existence in spite of our deeply held differences.
Confident pluralism is built upon the twofold premise that our common existence remains possible in both law and society. We can think of these possibilities in terms of constitutional commitments and civic practices, respectively. Constitutional commitments give us the practical ability to coexist with meaningful differences. This possibility is captured in a well-known passage in which Justice Robert Jackson defended the right of Jehovah’s Witnesses to abstain from saying the Pledge of Allegiance during World War II:
We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse, or even contrary, will disintegrate the social organization.… Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.9
The right to differ from prevailing orthodoxy transcends any one viewpoint or belief. In the 1940s, the Jehovah’s Witnesses confronted the orthodoxy of patriotism. In the 1960s, civil-rights groups stood against the orthodoxy of Jim Crow. In the 1980s, gay rights groups challenged the orthodoxy of heterosexuality. Today’s orthodoxies have shifted yet again. But we retain the right to differ.
The right to differ means that we must be able to reject the norms established by the broader political community in our own lives and voluntary groups. We must be able to dissent from those norms. As Justice William Brennan argued, “Collective effort on behalf of shared goals” is “especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.”10
Dissent is not unbounded—every society imposes limits. But within those limits, the right to differ will sometimes mean that citizens and the groups they form will choose to reject the norms of the political community—they may be illiberal or inegalitarian, or they may ignore the civic practices of confident pluralism. A political community that fails to honor this right to differ is not pluralistic—it lacks confidence in itself.
Protecting the right to differ and realizing the constitutional commitments of confident pluralism requires redefining and reimagining three aspects of constitutional doctrine: the right of association, public forums, and public funding.
The Right of Association
The most important constitutional commitment of confident pluralism is reinvigorating associational protections for the voluntary groups of civil society. The Supreme Court first recognized a constitutional right of association in 1958.11 Twenty-six years later, the Court split the right of association into two flavors: “intimate association” and “expressive association.”12 Intimate association is an “intrinsic” feature of the right of association that focuses on “highly personal relationships” and “deep attachments and commitments.” This sounds promising—but in practical terms, intimate association extends only to close family relationships and adds almost nothing to the balance of our civil liberties.13
Under the right of expressive association, a group is eligible for constitutional protection only to the extent that its purposes and activities further some other First Amendment interest, such as freedom of speech, the press, or religion. Expressive association instrumentalizes the associational right—it must be enlisted toward some purportedly more significant end. And this precisely and effectively ignores the ways in which most people actually form beliefs, practices, and modes of resistance—through informal and even non-expressive gatherings that facilitate friendships, relationships, and solidarity.
A law restricting a non-expressive association faces almost no constitutional obstacles—it need only pass “rational basis” scrutiny, and almost any law will meet this threshold. That means that a voluntary group deemed non-expressive can be regulated if a state or local government concludes that the group’s membership requirements are out of step with majoritarian norms, if elected officials want to promote public order or discretionary zoning preferences, or if law enforcement officials want to limit the size or composition of the group for purposes of crowd control.
Moreover, even those groups that qualify as expressive associations confront a vague doctrinal framework that too easily balances constitutional protections out of existence. For instance, some judicial decisions are remarkably unsympathetic to expressive associations that impose membership restrictions on the basis of gender or some other characteristic.14 But at least part of the right of association entails discrimination—a meaningful right of association will permit voluntary groups to exclude. Wellesley College discriminates against men and unexceptionally performing high school students. The Mormon Tabernacle Choir discriminates against non-Mormons and bad singers. Within the voluntary groups of civil society, we tolerate forms of discrimination that would elsewhere be impermissible. The current law surrounding the right of association fails to recognize this distinction.
The second important constitutional commitment is to strengthen the protections for public forums—the physical and virtual spaces where citizens come together to voice their dissent, opposition, and discontent. Public forums can be actual places, such as town halls, but they can also be non-physical or virtual spaces. Public colleges and universities create public forums when they allow students to form their own organizations; local governments often create public forums when they solicit comments on a website.
Public forums are essential to our democratic experiment. They provide a practical mechanism for citizens to gather, express, and engage—on topics and issues of their choosing, in their own ways and on their own terms. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. These intuitive connections were not lost on the writers of the hit television show Parks and Recreation. When a delegation from a municipal parks and recreation department in Venezuela visits the fictional town of Pawnee, Indiana, their leader, Raul, expresses dismay upon observing a public forum: “This is outrageous. Where are the armed men who come in to take the protesters away? Where are they? This kind of behavior is never tolerated in Boraqua. You shout like that, they put you in jail. Right away. No trial, no nothing. Journalists, we have a special jail for journalists.”15
We are not as far from Raul’s vision as we might like to believe. The suppression of public outrage in Ferguson last fall in the immediate aftermath of Michael Brown’s death (and the detention of journalists who covered the protests) is only one example of the ongoing violations of the public forum in this country. Under current law, political protestors in public forums are often relegated to physically distant and ironically named “free-speech zones.” Labor picketers confront oppressive restrictions in public areas. Churches are prohibited from renting generally available public facilities. Occupy movement protesters in New York City parks, antiabortion counselors on Colorado sidewalks, and political protesters in the North Carolina capital have all been silenced by government officials overreaching their authority. The public forum in practice is quite unrecognizable from its ideal, and that departure should give us great pause.
Finally, it is important that we preserve access to generally available public funding, regardless of ideology. The government has the authority to use much of its tax-generated revenue for its own purposes. But in the case of venues that function in ways similar to public forums, such as the forum for student organizations at public universities, government should not be permitted to demand conformity to any one prevailing orthodoxy as a condition of eligibility for generally available funding.
Another example is tax-exempt status under the federal tax code.16 Within the vast domain of groups that qualify as tax exempt under the Internal Revenue Code, every one of us could find not only groups that we think belong but also groups that we find harmful to society. And, of course, our lists of reprehensible groups would differ. The pro-choice group and the pro-life group, religious groups of all stripes (or no stripe), hunting organizations and animal-rights groups—the federal tax deduction benefits them all. Furious calls from left and right to strip the tax-exempt status of groups on the other side of the ideological spectrum are misguided. We can’t begin with the premise of confident pluralism and then work to exclude the groups we don’t like.
Confident Pluralism as Civic Virtue
Some aspects of confident pluralism lie beyond the reach of the law—they are up to us. We can, of course, argue for the importance of constitutional commitments and then ignore the norms underlying those commitments in our own lives. But it is better to reflect our aspirations for the law in the way we live.
Confident pluralism requires three aspirations to secure its civic practices: tolerance, humility, and patience. These three aspirations are not self-evidently “confident.” We might think of them as concessions that would come from a lack of confidence. But it is in fact the confidence in our own views and beliefs in the midst of deep difference that allows us to engage charitably with others.
Tolerance, humility, and patience function within confident pluralism as aspirations, not finely tuned philosophical concepts. We need only set out an idea of how we might act, recognizing that for some those actions will reflect deeply held commitments, and for others they may be little more than pragmatically justified concessions. But if enough of us embrace these aspirations, we may be able to sustain a consensus for confident pluralism, even as we draw from eclectic and blended antecedents. As the philosopher Charles Taylor has suggested, “We would agree on the norms while disagreeing on why they were the right norms, and we would be content to live in this consensus.”17
Think back to Falwell and Flynt. Falwell was what we might call a conservative moralist. He followed a set of rules from a text or community that governs and constrains behavior, telling you what is right and what is wrong. Flynt is what we might call a liberal progressive. He desires “autonomy” in the fashion of contemporary liberalism: “autonomy” as the freedom in most cases to make your own decisions apart from a text or community and to follow your own passions wherever they lead you. Falwell and Flynt disagreed strongly about matters of religion and sexuality. Falwell and Flynt were also both white, male, heterosexual, about the same age, and in roughly the same income bracket. In other words, their differences, though stark, would be even more complicated if we introduced other real-world factors that contribute to our real-world pluralism.
Most of us are not reducible to either Falwell or Flynt. Labels like “conservative moralist” and “liberal progressive” do not fully specify or even reach many of the issues that divide us. But Falwell and Flynt reflect something about our approaches to some of the most contested cultural issues today. For this reason, they will be helpful in exploring the three aspirations of confident pluralism.
Tolerance is the most important aspiration of confident pluralism. It accepts genuine difference, including profound moral disagreement. Achieving it is no easy task. As the philosopher Bernard Williams has observed, tolerance is most needed when people find others’ beliefs or practices “deeply unacceptable” or “blasphemously, disastrously, obscenely wrong.” The basic difficulty of tolerance, Williams notes, is that we need it “only for the intolerable.”18
There is, however, a tolerance that does not require embracing all beliefs and viewpoints as good or right. The philosopher Edward Langerak reminds us that “toleration is derived from the Latin tolero, which primarily connotes the enduring of something.” Heeding these connotations, “we should distinguish toleration from indifference, resignation, timidity, and approval.”19 We should aspire not to an “anything goes,” happy-go-lucky tolerance but to a practical enduring for the sake of coexistence. Falwell and Flynt held views about the world that were fundamentally at odds with one another. The depth of their disagreement precluded anything like ultimate approval.
Parsing the difference between tolerance and approval requires the hard work of distinguishing between people and ideas. We should not underestimate how difficult that work will be. Tolerance asks that Falwell treat Flynt with respect. It doesn’t mean he will respect Flynt’s ideas. The tolerance of confident pluralism does not impose the fiction that all ideas are equally valid or morally harmless. It does require respecting people, aiming for fair discussion, and allowing for the space to differ about serious matters.
Humility requires even greater self-reflection and self-discipline than tolerance. It leads Falwell and Flynt to recognize that their own beliefs and intuitions rest upon tradition-dependent values that cannot be empirically proven or fully justified by forms of rationality external to those traditions. That does not mean Falwell or Flynt must second-guess their beliefs or lack confidence in their own convictions. Humility is instead a reminder of the limits of translation, and the difficulty of proving our deeply held values to one another.
This kind of humility is based on the limits of what we can prove, not on claims about what is true. For this reason, it should not be mistaken for relativism. Humility leaves open the possibility that there is right and wrong and good and evil. Humility does not impugn our confidence in truth, but it calls for a recognition that our beliefs often stem from contested premises that others do not share. Falwell’s notion of “morality” and Flynt’s notion of “autonomy” emerge from particular traditions and practices whose basic premises are not endorsed by all people or by all of the voluntary groups of civil society.
Humility also recognizes that our human faculties are inherently limited—our ability to think, reason, and reflect is less than perfect, a limitation that leaves open the possibility that we can be wrong. That is one reason why all of us, whether religious or not, live and act on a kind of faith. As theologian Lesslie Newbigin observes, “We are continually required to act on beliefs that are not demonstrably certain and to commit our lives to propositions that can be doubted.”20
Patience involves restraint, persistence, and endurance. Here it is important to recognize that Falwell and Flynt both think they are right in a profoundly deep way. They structure much of their lives around their ethical commitments, and they often want their normative views to prevail on the rest of society. But confident pluralism recognizes that dialogue and persuasion usually take time. Conversely, a lack of patience too often gives way to coercion and even to violence.
Many of us will need patience to get to know one another across our differences, to stumble toward dialogue across the awkward distance that separates us. Sometimes we will need patience to endure differences that will not be overcome. Patience also encourages efforts to listen, understand, and perhaps even to empathize. Those activities are not the same as accepting or embracing another view. It may turn out that patience leads us to a deeper realization of the evil or depravity of an opposing belief. But we can at least assume a posture that moves beyond caricatured dismissals of others before we even hear what they have to say.
Patience does not always mean passivity. In some cases, we will urge action rather than inaction when we confront what we believe to be evil and injustice in the world. But in most ordinary circumstances, patience counsels toward restraint, persistence, and endurance. Even though Falwell and Flynt may detest one another’s lifestyles and beliefs, patience asks them to endure one another’s existence. And it holds open the possibility that such endurance can lead to greater understanding and empathy.
Enacting Confident Pluralism
The aspirations of tolerance, humility, and patience will often play out in individual acts and relationships. Yet as difficult as it may be to bridge differences on an individual level, bridging institutional differences can pose even greater challenges. Institutional partnership is particularly difficult at the national level. It is perhaps more attainable at the local level.
One example comes from Portland, Oregon. In the spring of 2008, recognizing that evangelical Christians in the city were known more for what they were against than for what they were for, Christian evangelist Kevin Palau reached out to Sam Adams, Portland’s openly gay mayor. Seeking to build relationships with the community, Palau decided to do “the obvious thing,” and asked Mayor Adams what religious believers could do to help the city.21
Adams was not particularly fond of evangelicals, but he needed volunteers to help address Portland’s educational, environmental, and health needs. He knew that evangelicals viewed his sexual conduct as sinful (“I’m sure that’s Kevin’s view”), but he “decided to set that difference aside and go ahead with the partnership for the sake of mobilizing people to aid his city.” For Adams, “the fundamental challenge was overcoming the way we’ve been conditioned—of changing the presumption that if we disagree with someone, then we must hate each other.” The very real question for Adams and Palau was “Can you simultaneously disagree on some things and act together on others?”
Three years after Adams and Palau first met, ABC News reported that 26,000 volunteers from 500 local churches were “helping the city do everything from renovating parks to counseling victims of sex trafficking and feeding the homeless.”22 One church focuses its efforts on Roosevelt High School, which is attended primarily by low-income students of color. As the New York Times observed in a 2013 article, “Throughout the school year, members of SouthLake Church in the prosperous suburb of West Linn serve as tutors at Roosevelt. A former NFL quarterback in the congregation, Neil Lomax, helps coach the football team. SouthLake pays for another member, Heather Huggitt, 26, to work full-time at Roosevelt helping to meet the material needs of students who often lack sufficient food, clothing and school supplies.”23
Both Palau and Adams emphasize the importance of relationships across differences in addressing these problems. Adams stresses the significance not only of relationships between church leaders and city officials but also of those between individual parishioners and city employees. Adams has not forgotten his significant differences with Palau. But he does not want those differences to get in the way of their shared goals. Palau agrees, and said so in a 2014 public dialogue with Adams: “Precisely because we may not find common ground on everything, let’s work all the harder to find common ground on what we can. We all care about a more livable Portland.”24 The possibilities in Portland depended upon finding common ground, not overcoming deep and painful differences.
Another story of finding common ground across difference comes from an effort to secure confident pluralism’s constitutional commitments. In 2000, the Supreme Court upheld what it deemed to be “content-neutral” limitations that restricted the speech and expression of antiabortion protesters on public sidewalks outside abortion clinics in Colorado.25 In a dissenting opinion, Justice Anthony Kennedy argued that the Court’s decision left unprotected core political expression conducted “in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.”26
Fourteen years later, the Supreme Court decided another case involving antiabortion protesters on public sidewalks outside abortion clinics, this time in Massachusetts.27 The Massachusetts restrictions at issue in McCullen v. Coakley were even more severe than the Colorado restrictions. They criminalized any gathering of two or more people on public sidewalks outside abortion clinics.28 They also prevented the plaintiff, Eleanor McCullen, from using the sidewalk outside an abortion clinic to sing or pray quietly.
Like many Supreme Court cases, McCullen drew an avalanche of legal briefs arguing various legal theories. Many of those briefs filed in support of the plaintiff quoted Harvard Law School professor Laurence Tribe’s assertion that the Court’s earlier decision was “slam-dunk simple and slam-dunk wrong.”29 Quoting Professor Tribe in a brief to the Supreme Court was not itself unusual; he is a well-known legal scholar who taught a number of the justices when they were law students. But what made his words so important in this case was that he is also a staunch defender of abortion rights.
Nor did the unusual alliance end there. The American Federation of Labor and Congress of Industrial Organizations submitted an amicus (“friend of the court”) brief arguing that the sidewalk restrictions were unconstitutional. The AFL-CIO’s brief cited a number of labor decisions that supported a robust public forum, and it emphasized the “vital interest in the First Amendment rights of citizens to disseminate their views on the public streets by picketing, handbilling, and engaging in other forms of protected expression.”30
Stanford Law School professor Michael McConnell and I coauthored an amicus brief on behalf of a number of religious organizations.31 We argued that the Massachusetts restrictions were an unconstitutional infringement on the public forum and the right of assembly. We enlisted a coalition of religious groups, some of which had very little in common with one another. It’s not every day that the Conference of Catholic Bishops, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the International Society for Krishna Consciousness (the Hare Krishnas) agree with one another. But all of them (and many other groups) joined our brief, recognizing the shared importance of the public forum to their otherwise divergent interests.
In June 2014, the Supreme Court struck down the Massachusetts law, in a welcome development that edges us closer to more meaningful protections for public forums. Writing in the New York Times, Professor Tribe praised the decision: “That I don’t share Ms. McCullen’s views is beside the point. The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support.”32
But that’s not the end of the story. Days after the Supreme Court’s decision, a federal district judge in North Carolina relied on McCullen to dismiss criminal charges against dozens of “Moral Mondays” protesters who had challenged recent actions by the North Carolina legislature.33 Many of those protesters were progressives, including members of Planned Parenthood who had joined the Moral Mondays protests to argue on behalf of abortion rights. They, too, benefited from meaningful protections of public forums. That’s precisely how the constitutional commitments of confident pluralism are meant to work. And in McCullen, a broad array of ideologically diverse people and organizations found common ground around that principle.
Burying the Hatchet
Jerry Falwell died on May 15, 2007. Five days later, in an essay in the Los Angeles Times, Flynt recounted a surprising turn of events, sometime after the Campari spoof, when he and Falwell appeared together on the Larry King Show. At some point during the program, Falwell leaned over to give Flynt an awkward but apparently heartfelt embrace. Shortly thereafter, Falwell unexpectedly paid a visit to Flynt’s office: “We talked for two hours, with the latest issues of Hustler neatly stacked on my desk in front of him. He suggested that we go around the country debating, and I agreed.” Here is how Flynt concluded his tribute to Falwell after the latter died:
In the years that followed and up until his death, he’d come to see me every time he was in California. We’d have interesting philosophical conversations. We’d exchange personal Christmas cards. He’d show me pictures of his grandchildren. I was with him in Florida once when he complained about his health and his weight, so I suggested that he go on a diet that had worked for me. I faxed a copy to his wife when I got back home.
The truth is, the reverend and I had a lot in common. He was from Virginia, and I was from Kentucky. His father had been a bootlegger, and I had been one too in my 20s before I went into the Navy. We steered our conversations away from politics, but religion was within bounds. He wanted to save me and was determined to get me out of “the business”….
He was definitely selling brimstone religion and would do anything to add another member to his mailing list. But in the end, I knew what he was selling, and he knew what I was selling, and we found a way to communicate.…
I’ll never admire him for his views or his opinions. To this day, I’m not sure if his television embrace was meant to mend fences, to show himself to the public as a generous and forgiving preacher, or merely to make me uneasy, but the ultimate result was one I never expected and was just as shocking a turn to me as was winning that famous Supreme Court case: We became friends.34
It is fair to say that Falwell and Flynt are unlikely models for confident pluralism. But if they could move toward its aspirations of tolerance, humility, and patience, then maybe we can, too.
- Bill Forman, “Candidates of the Week: Hustler’s Larry Flynt vs. Porn Actress Mary Carey,” Sacramento News & Review (August 14, 2003); Marc Ambinder, “Falwell Suggests Gays to Blame for Attacks,” ABCNews.com (September 14, 2011, quoting Falwell).
- The details about Falwell and Flynt are taken from Rodney A. Smolla, Jerry Falwell v. Larry Flynt: The First Amendment on Trial (New York, NY: St. Martin’s Press, 1988), and Larry Flynt, “My Friend, Jerry Falwell,” Los Angeles Times (May 20, 2007).
- Hustler Magazine, Inc., v. Falwell, 485 U.S. 46 (1988).
- Mary Battiata, “‘Felt Like Weeping,’ Falwell Tells Jurors,” Washington Post (December 5, 1984).
- Gabriel Arana, “Gays Hate America and Other Right-Wing Talking Points on Indiana,” Huffington Post (April 3, 2015, quoting Mark Levin); Family Research Council, “Religious Freedom Should Not Be Held Hostage to Big Business, Family Research Council Urges Veto” (April 2, 2015, press release); Tim Cook, “Pro-discrimination ‘Religious Freedom’ Laws Are Dangerous,” Washington Post (March 29, 2015); Ben Kepes, “Salesforce.com Makes a Stand Against Bigotry,” Forbes.com (March 26, 2015); Jon Healey, “The Backlash against the Backlash against Indiana’s New Religious Freedom Law,” Los Angeles Times (April 2, 2015, describing the threats and boycotts against Memories Pizza after the owners said in response to a local television reporter’s question that they would not cater a gay wedding).
- North Carolina Constitution art. XIV, § 6; David Zucchino, “Marriage Amendment Vote Puts National Focus on North Carolina,” Los Angeles Times (May 5, 2012). Not everyone agreed about the potential effects of the amendment. See E. Gregory Wallace, “The Sky Didn’t Fall: The Meaning and Legal Effects of the North Carolina Marriage Amendment,” 22 American University Journal of Gender Social Policy and Law 1 (2013), in which Wallace argued against “predictions of dire consequences that have yet to occur—and likely never will.” In 2014, a federal district court ruled North Carolina’s ban on same-sex marriage unconstitutional in General Synod of the United Church of Christ v. Resinger, 12 F.Supp.3d 790 (W.D. N.C. 2014).
- Greg Garrison, “Amendment Banning ‘Foreign Law’ in Alabama Courts Passes; Will Be Added to Alabama Constitution,” AL.com (November 4, 2014); Paul Horwitz, “Amendment One Is Useless, Costly, and Wrong,” AL.com (October 30, 2014); Liz Farmer, “Alabama Joins Wave of States Banning Foreign Laws,” Governing.com (November 4, 2014).
- Michael Paulson, “Colleges and Evangelicals Collide on Bias Policy,” New York Times (June 10, 2014), A1.
- West Virginia State Board of Education v. Barnette, 319 U. S. 624, 641–42 (1943).
- Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).
- NAACP v. Alabama, 357 U.S. 449 (1958).
- Roberts, 609.
- The Supreme Court recently mentioned the right of intimate association in Obergefell v. Hodges, 135 S. Ct. 1039 (2015). Obergefell incorrectly characterized an earlier case, Lawrence v. Texas, 539 U.S. 558 (2004), as relying on intimate association. Lawrence overruled Bowers v. Hardwick, 478 U.S. 186 (1986). Bowers had drawn two dissents, one from Justice John Paul Stevens that emphasized substantive due process, and one from Justice Harry Blackmun that drew upon intimate association. Lawrence relied on Stevens’s dissent and never mentioned intimate association.
- Roberts, 609; Christian Legal Society.
- Alan Yang, “Sister City,” Parks and Recreation (NBC television program), season 2, episode 5, directed by Michael Schur, aired October 15, 2009.
- See 26 U.S.C. § 170(c) (2006), authorizing deductions; 26 U.S.C. § 501(c)(3) (2006), specifying which tax-exempt organizations are eligible to receive deductions.
- Charles Taylor, “Conditions of an Unforced Consensus on Human Rights,” in Dilemmas and Connections (Cambridge, MA: Belknap Press, 2011), 105.
- Bernard Williams, “Toleration: An Impossible Virtue?” in Toleration: An Elusive Virtue, ed. David Heyd (Princeton, NJ: Princeton University Press, 1996), 18.
- Edward Langerak, Civil Disagreement: Personal Integrity in a Pluralistic Society (Washington, DC: Georgetown University Press, 2014), 78.
- Lesslie Newbigin, Proper Confidence: Faith, Doubt, and Certainty in Christian Discipleship (Grand Rapids, MI: Eerdmans, 1995), 102.
- Portions of this narrative draw from a video dialogue between Kevin Palau and Sam Adams. See “Redeemer City to City,” Portland Case Study: Kevin Palau and Sam Adams, available at https://vimeo.com/66596545.
- Dan Harris, “Evangelicals Team with Portland’s Gay Mayor for Charity,” ABC News online, December 25, 2011; http://abcnews.go.com/US/evangelicals-team-portlands-gay-mayor-charity/story?id=15218876.
- Samuel G. Freedman, “Help from Evangelicals (without Evangelizing) Meets the Needs of an Oregon Public School,” New York Times, August 9, 2013.
- “Redeemer City to City.”
- Hill v. Colorado, 530 U.S. 703 (2000).
- Ibid., 765 (Kennedy, J., dissenting).
- McCullen v. Coakley, 134 S. Ct. 2518 (2014).
- Mass. Gen. Laws ch. 266, § 120E½(b).
- Laurence Tribe, quoted in “Colloquium, Professor Michael W. McConnell’s Response,” 28 Pepperdine Law Review 747, 750 (2001).
- McCullen, Brief Amicus Curiae of the American Federation of Labor and Congress of Industrial Organizations, in Support of Petitioner Eleanor McCullen, 1; http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-1168_pet_amcu_aflcio.authcheckdam.pdf. Accessed July 20, 2015.
- McCullen, Brief Amicus Curiae of the National Hispanic Christian Leadership Conference et al., in Support of Petitioner Eleanor McCullen; http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-1168_pet_amcu_nhclc-etal.authcheckdam.pdf. Accessed July 20, 2015.
- Laurence H. Tribe, “The Supreme Court Was Right to Allow Anti-Abortion Protests,” New York Times, June 26, 2014.
- Anne Blythe and John Frank, “Wearing Pink, Opponents of Abortion Restrictions Join ‘Moral Monday’ Effort,” News and Observer (Raleigh, NC), July 8, 2013 (noting that “Janet Colm, president and CEO of Planned Parenthood of Central North Carolina, was among the more than 60 arrested”); Anne Blythe, “Judge’s Ruling to Dismiss ‘Moral Monday’ Cases Could Have Sweeping Effect,” Charlotte Observer, August 4, 2014.
- Larry Flynt, “My Friend, Jerry Falwell,” Los Angeles Times (May 20, 2007).
Reprinted from The Hedgehog Review 17.3 (Fall 2015). This essay may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission. Please contact The Hedgehog Review for further details.