The Culture Wars Are Destroying Constitutional Rights

The following is an op-ed by David French in The New York Times: 

The Constitution of the United States, properly interpreted, provides a marvelous method for handling social conflict. It empowers an elected government to enact even contentious new rules while protecting the most fundamental human rights of dissenting citizens. Political defeat is never total defeat. Losers of a given election still possess their basic civil liberties, and the combination of the right to speak and the right to vote provides them concrete hope for their preferred political outcomes.

But if a government both enacts contentious policies and diminishes the civil liberties of its current ideological opponents, then it sharply increases the stakes of political conflict. It breaks the social compact by rendering political losers, in effect, second-class citizens. A culture war waged against the civil liberties of your political opponents inflicts a double injury on dissenters: They don’t merely lose a vote; they also lose a share of their freedom.

That’s exactly what’s happening now. The culture war is coming for American liberty — in red states and blue alike. The examples are legion. Let’s start with America’s progressive strongholds. On Wednesday, Gov. Gavin Newsom announced that the State of California would not renew a multimillion-dollar contract with Walgreens — not because Walgreens had failed to comply with its contractual obligations but rather because it had responded to Republican legal warnings and decided not to dispense an abortion pill in 21 red states. Newsom used his political power to punish a corporate position he opposed.

Weeks earlier, a federal judge blocked enforcement of a new California law intended to combat medical misinformation, because the state’s definition of the term was so vague that it couldn’t survive First Amendment scrutiny. This ruling came on the heels of multiple adverse rulings against California at the Supreme Court. In 2018 the court struck down a California rule that required pro-life pregnancy centers to publish information about free or low-cost abortions. During the pandemic, the court repeatedly rejectedCalifornia public health regulations that discriminated against religious worship. And in 2021 the court invalidated a mandatory donor disclosure law that violated court precedent that dates back to the civil rights era.

California is not alone in its efforts to suppress constitutionally protected rights. Late last month the Court of Appeals for the Second Circuit held that New York’s so-called Boss Bill, which prohibits employers from discriminating against employees on the basis of their “reproductive health decision making,” may violate the expressive associational rights of pro-life organizations that require employees not to have abortions and to refrain from extramarital sex.

But no, I’m not letting red America off the hook. The educational culture wars are inspiring a host of educational gag orders across states that purport to block advocacy of disfavored ideas about race and gender. Many of those statutes are aimed at K-12 education, where the government has considerable control over teacher speech. But others are aimed at speech in public universities and private corporations, where states have much less control. Indeed, a federal court has already blocked enforcement of Florida’s so-called Stop WOKE Act to the extent that it limits free expression on public campuses and in private boardrooms.

Florida is one of the hot spots of right-wing censorship and punitive government. It passed an unconstitutional law to control social media moderation in the state, and Gov. Ron DeSantis took direct action against Disney after the company objected to Florida House Bill 1557, which tightly regulated “classroom instruction” on “sexual orientation or gender identity.” If the right is going to condemn Newsom’s action against Walgreens, shouldn’t it also oppose DeSantis’s attack on Disney?

It’s a sign of the times that the list above — from the left and the right — is woefully incomplete. Careful observers will be able to point to any number of additional culture-war-motivated statutes, regulations and government actions that take aim at the Bill of Rights.

State attacks on civil liberties are even affecting our most valued relationships: the bonds between parent and child. In January, The Times reported on how public schools sometimes withhold from parents information about a child’s gender transition, even in the absence of any evidence of parental abuse. California has enacted a statute that grants the state broad authority to permit children to receive “gender-affirming health care” there, even potentially over the objection of a custodial parent.

For example, Section 7 of the law states that California courts won’t weigh as a factor against a petitioner seeking California court jurisdiction if the person took a child “from the person who has legal custody” in order to obtain “gender-affirming health care” and that care is limited by the law or policy of another state.

And because every culture war action against civil liberties has its mirror image on the other side, Gov. Greg Abbott of Texas issued a directive to the Texas Department of Family and Protective Services to investigate as “abuse” both surgical and pharmaceutical interventions for transgender children, regardless of the good faith and desires of the parents, children and caregivers involved.

To understand the gravity of the state interference with parental authority, it’s worth remembering the words of Chief Justice Warren Burger in the 1972 case Wisconsin v. Yoder, in which he wrote that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” To simply presume that parents are abusive because they may dissent from state consensus on transgender care is to violate this principle of American law.

In a nation as diverse as the United States, conflicts over values are inevitable, but our most basic civil liberties must remain inviolate. To govern otherwise both inflicts a grave injury on dissenting citizens and violates the letter and spirit of the Constitution itself. Our right to speak, much less to parent, should not be contingent on our ability to gain political control.

The much better course for our democracy is to uphold a legal corollary to the golden rule: Defend the rights of others that you would like to exercise yourself. It doesn’t end the culture war. We’ll still clash over contentious issues. But maintaining a bedrock defense of civil liberties lowers the stakes. Protecting individual freedom tells all Americans and all American families that the social compact holds and — win or lose on any given issue, regardless of how controversial — this country is still their home.