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From California: Another Front in the Culture Wars Print E-mail
By Hadley Arkes   
Tuesday, 27 September 2011

From California again we get a glimpse of the future – or the future that a political class is consciously seeking to prepare for us in reshaping the culture. During the summer the legislature enacted, and Governor Jerry Brown signed into law, SB48, as an amendment to “the Education Code, relating to instruction.” That Code had already made ample provision to instruct the children of California in the contributions made by all racial and ethnic groups supplying votes for politicians. But there was an appreciation also for the contributors who were “entrepreneurs” and labor unions, and whose stories deserved to be told. With SB48 the legislature took a further step by adding:  “Pacific Islanders, European Americans, lesbian, gay, bisexual, and transgender Americans.”  

The schools were directed to give only favorable accounts of these groups in telling the story. But on the other side, teachers and administrators were enjoined not to offer any instruction or “sponsor any activity that reflects adversely upon persons on the basis of race or ethnicity, gender, religion, disability, nationality, sexual orientation.” There is not the least doubt about the intention to enforce this law. Nor is there much doubt about the main target of the law. SB48 bars “any sectarian or denominational doctrine or propaganda contrary to law.”

For religious teaching, read:  any teaching offering a claim to truth rivaling the moral teaching in the law. That alternative moral teaching will be regarded as merely beliefs of a “denominational” character or a version of “propaganda.”

Make no mistake, Fr. Schall was quite right in his recent column: We are in the midst of a culture war. And a chief purpose of that war is to make it untenable to teach Catholic doctrine in public settings, or for Catholic institutions, in their work, to respect that teaching. But we would fall into a gentle mistake if we assumed that we are facing mainly the force of “relativism,” or that the appeal now is to the rights of parents to provide for the moral shaping of their children.  

Yes, in part, to both. The force of relativism was felt first in teaching the wrongness of casting moral judgments, including judgments on the “styles” of sexuality. But there is nothing relativistic about the law in California. There is no willingness to tolerate the views of those who bear moral reservations about the homosexual life. The people who brought forth this law would draw on the “logic of morals” as Aquinas had it, and as it will ever be: they would commend and even require what is “right,” and they would condemn and forbid what they regard as “wrong.”


        California leads the way.

Lincoln had all of this long ago: “If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.” He could conceivably grant then the authority to bar the abolitionist literature from the mails – if slavery were right. And if it were wrong to cast adverse moral judgments on the homosexual life, the understandings supporting those judgments could indeed be driven out of the schools. 

The classic cases on the rights of parents and education were Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In Meyer, the Supreme Court struck down a statute that forbade the teaching of any language but English to students in grammar school. In Pierce, a statute in Oregon barred students from attending private schools between the ages of eight and sixteen. Justice McReynolds insisted that there was no “power in the state to standardize” children in this way, and that “the child is not the mere creature of the state.”

But people tend to forget that McReynolds insisted at the same time that the State had a legitimate authority to regulate all schools, public and private, to insure, for example, that teachers are of “good moral character and patriotic disposition,” and that “certain studies plainly essential to good citizenship must be taught.” And so, the people governing the schools of Massachusetts point out that same-sex marriage is now part of the law: Students should come then to understand and absorb the moral understandings contained in the law.

The state has, after all, the rightful authority to insure that any firm or association under the laws is formed on legitimate terms for legitimate ends. It will not give a license to Fagin’s school for pickpockets, and it will not even license certain marriages. Anyone who takes education seriously will have to be attentive to moral education, including the moral ends of a “technical” education. (“For what purpose are you designing those trains:  to speed people to their legitimate work – or to gas chambers?”)

This question will not be solved then simply by unfurling the banner of the “rights of parents” and private schools. The legislature of California has already noted that the new law would apply to “any aspect of the operation of alternative and charter schools.” If Catholic schools continue to teach doctrines now regarded as subversive, parents will not find a path of escape by moving into the enclave of Catholic schools. 

The question then is not mainly about the rights of parents and schools. The question finally is whether there will be freedom to hold back from the moral teaching being planted in the law:  Will it still be legitimate in this country to call into moral question the homosexual life?


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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Comments (10)Add Comment
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written by Grump, September 27, 2011
Hadley, now that the military has caved on DADT and the LGBT lifestyle is gaining "acceptance," (see polling data showing half of Americans favor so-called 'gay marriage'), the battle will go on but the war is lost. Sadly, using moral arguments are futile in a nation that has long since lost its moral compass and where political correctness reigns.
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written by Cristiano, September 27, 2011
This is a clear example of what a real lack of tolerance is about. Lack of tolerance is the transformation of uncomfortable acceptance of disagreement into outlawing a disagreement. It is also interesting to see how a state is trying to establish a specific religion by calling "denominations" specific undesired parts of such a religion. It looks like that if the reasonable belief of a religion do not match the unreasonable beliefs of a state then it is mere propaganda. Choosing to be stupid by rejecting the principle of non-contradiction is just another dictatorial manner to try to have it your own way, and it will raise more than one eyebrow even among supports of your own goals.
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written by Manfred, September 27, 2011
Seton Hall University used to refer to itself as New Jersey's Catholic University. In September, 2010 it instituted a Politics of Gay Marriage course and that course was renewed this year. As you are well aware, Dr. Arkes, this Culture War has been going on for decades and many Catholics, both religious and lay, have made many substantial contributions to the pro-degenerate side. The discussion should have ended years ago but action has been required for years and all people do is WRITE about it.
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written by Ryan Bilodeau, September 27, 2011
This discussion played out at a recent GOP debate during which Senator Santorum correctly pointed out to Gov. Perry that amidst the red meat discussion of "states rights," we are leaving behind parents rights. We would do well to remember this.
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written by Achilles, September 27, 2011
THis is unbelievably devastating. This issue about all the contributions of groups seperated by ethnic accident is already a gross perversion of history, the issue of homosexual contributions is insane. It boggles the mind to consider that anyone who could call themselves "Catholic" could consent to such madness. This is at the expense of civilization.
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written by Hadley Arkes, September 27, 2011
I'm not sure that I understand "Manfred," but I was one of the architects of the Defense of Marriage Act, and as I recall, I led the testimony on the bill in the hearings before the House Judiciary Committee. I've done then more than WRITE, but then writing is what people like Fr. Schall and the writers for the Catholic Thing do. That is work that also persuades and summons people, and we've had reason to think that it is no mean work.
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written by M., September 28, 2011
“there is no such thing as “liberalism,” if this means a sphere of reason or action that escapes the particularism and exclusivity of tradition. And there is also no such thing as “the secular” since traditions of rationality are distinguished by the particular way they grapple with matters of ultimate concern—all traditions are ultimately religious.” A nonconfessional state is not logically possible, in the one real order of history."

"If believing theists of diverse traditions do not think, speak, and act DISTINCTIVELY as Catholics, Protestants, Jews, Muslims —bringing their intellectual, moral, and liturgical traditions wherever they go in imitation of Socrates, whom Catherine Pickstock calls a “walking liturgy,” then we stand no chance at converting the “liberal traditionalists” of the culture of death, who have no qualms about communicating to themselves and others exclusively [confident?] in their religious parlance of tolerance and diversity, and inviting all into their liturgical practices of abortion, same-sex marriage, and euthanasia. Indeed, they see themselves as the “true believers,” the only ones truly defending “life,” with us as the heretics, obsessed only with death and control.

How can these deluded devotees have any hope of ever renouncing their enslaving tradition unless they are made aware of its enslaving character? And how can they become aware unless they have some palpable experience of an alternative? The tradition they inhabit deprives them of the existential conditions required to see moral truths, let alone religious ones."

Kozinski 'The Good, the Right and Theology.
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written by Paul from China, September 28, 2011
I have been living and working in Communist China for the last twelve years. Here, children are considered property of the State and children of the Party. Indoctrination and brainwashing are routinely practiced starting in kindergarten. The State decides for everyone what is right and what is wrong. Dissenters are punished and those who don't "fit in" are marginalized and set aside. The USA is slowly but surely moving in that direction. How scary, how tragic. What are you going to do about it?
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written by Michael Paterson-Seymour, September 28, 2011
The contradiction at the heart of liberalism lies in its simultaneous assertion of popular sovereignty and universal human rights. In the brief interlude between the absolutist state of the Ancien Régime and modern mass politics, this was achieved by the separation of the public sphere of state activity and the private sphere of civil society. The state provided a legally codified order within which social customs, economic competition, religious beliefs, and so on, could be pursued without interference.

But, when the social consensus on which the distinction rested breaks down, liberalism has no way of defining or defending the boundaries of this sphere; everything becomes potentially political.

Rousseau saw this very well. “Each man alienates, I admit, by the social compact, only such part of his powers, goods and liberty as it is important for the community to control; but it must also be granted that the Sovereign is sole judge of what is important,” for “ if the individuals retained certain rights, as there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all; the state of nature would thus continue, and the association would necessarily become inoperative or tyrannical.”
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written by senex, September 28, 2011
SB 48 in California reflects the march from ordered liberty to license to tyranny. How did we get to this point?

In my opinion, it has been the disjuncture of truth from reality begun in the Renaissance, peaking in the Idealism of Descartes and Kant with a dose of empirical materialism that separated knowledge and morality from reality. The mix of Kantian idealism and empirical materialism led to the many –isms of the 19th century, epitomized, for this purpose, in Kierkegaard’s existentialist comment that every person has the freedom (read ‘license’) to decide “a truth that is true for me’.

This was step one of the march from rational ordered liberty of Greek and Scholastic philosophy based on objective reality and man’s ability to discover that reality and to direct his exercise of freedom for the common good within the bounds of justice to unprincipled personal moral decision making. But with license also came disorder. It caused a political and moral vacuum that threatened order. To fill this vacuum the Nietzschean will to power stepped in where politicians, the ones with power, decide what freedoms people will have or don’t have. SB 48 is just such an expression of Nietzschean power in action.

How different California’s approach is from that of Pope Benedict in his address last week to the German parliament, in expressing ‘some thoughts on the foundations of a free state of law. … What should ultimately matter for a politician …must be striving for justice…. To serve right and to fight against the dominion of wrong is and remains the fundamental task of the politician….’

Will SB 48 provoke another lawsuit of “People v. California’ to reclaim fundamental justice, freedom of thought and expression, and limits on political will to power? I don’t know; but I am concerned that the trend will spread over the country. Professor Arkes is to be commended for his effort to make us aware of the issues SB 48 presents.

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