Taking Offense

Avedon linked to this post at Digby's blog, responding to a dissent by Supreme Court Justice Antonin Scalia about establishments of religion.  (Justice Clarence Thomas joined the dissent.)  The quotation from Scalia reads:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

"tristero," the blogger, properly points out that offense is not the issue.

Obviously, the issue is not that the display of religion is offensive but that the establishment of any religion by a government is extremely dangerous (see the Middle East) and that the government sanctioned display of a specific religion strongly implies establishment.

Unfortunately tristero continues with some childish personal slams against Scalia, which may well be justified but are beside the point.  Does he, or anyone, seriously want to claim that taste in music is relevant to a judge's competence as a judge?  After all, Scalia has a law degree from Harvard Law School and was an editor of the school review, just like another great Constitutional scholar we all know, so how can anyone doubt his qualifications or his authority?

Aside from Scalia's actual arguments, that is.  As tristero says, the issue is not one of personal offense or taste but the First Amendment, which forbids the government to establish any religion.  The Establishment Clause is not easy to interpret, like so much of the Constitution and the Bill of Rights, so it's legitimate to debate whether a given practice constitutes an establishment of religion.  In the case of prayers and invocations before government functions, I think it's obvious that they violate the Establishment Clause, as did James Madison, but they've been doing so ever since the first US Congress commenced, and that camel long ago made itself at home in the tent.  I'm all in favor of kicking it out, but I know it won't be easy.

What concerns me is that Scalia isn't the only one who makes this mistake.  (I'll try to write more about this later; the rest of his dissent seems to be similarly wrongheaded.)  I recall a suit, in the 1990s I think, by a group of people to prevent an official prayer at Indiana University commencements.  The petitioners claimed that the prayer was offensive and therefore shouldn't be part of the ceremony.  But offense is not a legal reason not to include the prayer.  (I wonder how much of a role offense played in Elmbrook School District v. John Doe, the case Scalia was writing about.  Topic for further research, and soon.)  It may well be an ethical reason, or one of courtesy, but as a legal reason, not at all.  It's alarming that liberals are as confused about the First Amendment as conservatives are.

The Buck Stops Here

I wrote "I find this offensive" as a comment on my friend's repost of this meme on Facebook today.  Not just because she herself posts lots of material that is offensive to various people -- it goes without saying that what is meant here is "Speak without offending me; if I offend you, you deserve it for not sharing my opinions."  Not just because being offended is one of the inevitable consequences of freedom of expression.  Not just because I think it is important to offend many people, nor do I break when I'm offended.

But the other principles here strike me as no less wrongheaded.  Pretending, for example, is an essential part of human life, from childhood to adulthood.  We pretend by imitating what we imagine adults do; we try on various selves and possibilities; and among the harder forms is trying to put ourselves in others' shoes -- which ironically enough, is another platitude beloved in these memes.  Or one might pretend to be a sane, rational, healthy person and try to become that person by practice -- another popular meme.  I suppose the meme-maker had some more specific and limited sense of "pretending" in mind, but I don't know what it was.

"Love without depending" is tricky.  Children, of course, depend on others simply to survive.  It's an unfortunate fact that many people can't be depended on, as we find when we become adults, but we still find people we can and do depend on . For many people (especially, I suspect, women) the dependable ones are friends.  Still, letting others -- and by extension, ourselves -- off the hook for keeping their word and their commitments is not a good way to live.  Here again, a reasonable caution is universalized until it becomes a counsel of fear.  To say nothing of blaming the victim: you broke your promise to me, therefore I was at fault for believing you.

"Listen without defending" is another exhortation that has limited value but shouldn't be universalized to every situation.  The other day I was seated in a restaurant next to a table where two heterosexuals were having their lunch.  The butch one was haranguing his femme for various failings; she was mostly weeping, but quietly.  This is a pattern I've seen too often over the years.  One complaint he kept repeating was that she insisted he should accept her as she is, which for some reason offended him greatly.  I only eavesdropped intermittently, but it was hard to ignore them altogether.  It is important to be able to listen to another person, but not to make yourself into a passive vessel with no needs of your own.  Especially when someone is criticizing you, it's necessary to be able to evaluate the criticism, and defend yourself if necessary.  A few years ago I realized that under attack I first apologize, then realize that I've done nothing to apologize for, and go on the offensive against the criticism.  I suppose that's not such a bad approach, but I'd fallen into it without thinking about it, too ready to assume that I was in the wrong.

One of the really hard parts of becoming an adult, I think, is that you have to learn the necessity of judgment.  You have to learn that no principle or rule fits every situation, and that you have to decide for yourself whether a given rule fits a given situation.  And the decision is yours -- one (but only one, and not universal) of the functions of religion is to enable the believer to pass the buck of moral responsibility upstairs to the higher power.  But this meme is just wrongheaded all the way.