Courts

The Loss Of Civility

It is no coincidence that the same figures who seek to enact gratuitously cruel policies or deny fundamental liberties are always the ones opining about a loss of 'civility.'

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(Photo by Chip Somodevilla/Getty Images)

In his farewell address to the United States Senate before becoming the United States Attorney General, Jefferson Beauregard Sessions expressed a hope for increased respect and civility in the future. Unfortunately, as Attorney General, Sessions would practice the very opposite of his preachings by unilaterally imposing one of the most gratuitously cruel policies in modern memory. In fact, Sessions has long taken actions/positions that are anything but civil or respectful to his fellow human beings.

As Attorney General of Alabama, Sessions tried to ban LGBTQ advocates from speaking at a public university, only to later claim in a room full of prescreened attendees with prescreened questions that “freedom of thought and speech on the American campus are under attack.” As Radley Balko has shown, gross hypocrisy and outright bigotry have long been common elements throughout Sessions’s entire career:

When states or local officials are accused of violating the rights of minorities and other marginalized groups — blacks, Latinos, the LGBTQ community — Sessions has opposed federal intervention, citing states’ rights. When state and local officials want to opt out of federal policies many believe to be oppressive or discriminatory against those groups — immigration enforcement, marijuana legalization, asset forfeiture — Sessions cites the supremacy of federal law. There is only one consistent principle in play here: bigotry.

Despite the clear inference of bigotry, some senators, even those who often sharply disagreed with Sessions on matters of policy, nevertheless expressed great offense at the accusation that Sessions was a racist. According to Balko, the disconnect is largely attributable to the country-club mentality within the Senate where despite all evidence, “[p]olite senators simply didn’t make such accusations of other senators.” In this environment, civility transforms from an admirable value to a tool to prevent uncomfortable but also necessary discussions about the behavior and contradictory positions of those in government.

With that context in mind, let’s examine the latest lamentation over the lack of civility in society made by Supreme Court Justice Neil Gorsuch. By most metrics, I, a civil liberty nerd, should love Justice Gorsuch. After all, the man has authored some astoundingly refreshing opinions for which I am undoubtedly grateful. Moreover, in the case before the Supreme Court that I took part in, Justice Gorsuch’s concurrence followed the arguments in our brief almost verbatim (yet he still chose to join the side ruling against us by expressing what I would call a naive hope that lower courts would apply the majority’s decision “commonsensically,” whatever that means).  Neither does any evidence even remotely suggest that Justice Gorsuch possess the same racial or ethnic biases as someone like Jeff Sessions. However, the reason I do not much care for Justice Gorsuch and find his recent call for civility rather appalling, is because the man is an obvious theocrat who seeks to enforce compelled support of religion, civility and anti-establishment liberty be damned.

I have repeatedly broken down how inconsistent Justice Gorsuch’s opinions are on the topic of First Amendment religious liberty and how his views in this area blatantly contradict all original plain meaning and intent to prohibit government support of religion. That Justice Gorsuch constantly touts himself in his new book as an “originalist” who stands against efforts to redefine the Constitution only increases his hypocritical and dare I say uncivil approach to religious freedom. So, when the justice says things like “[t]o be worthy of our freedoms, we all have to adopt certain civic habits that enable others to enjoy them too,” I can’t roll my eyes hard enough at the audacity.

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I expect that many of Justice Gorsuch’s supporters would bristle at my claim that he is a theocrat, if they even cared to listen. I also expect that even the ones that would respond nonetheless would attempt to explain why the justice has displayed such clear animosity to extending free conscience liberties to non-religious citizens and anti-establishment liberty in general. Rather it is likely that my criticism will be met with some grandiose defense of how “civil” the justice is in public and in private circles to citizens from all walks of life or simply tout his prestige and point to my lack of it. Social civility and prestige, however, are not legitimate excuses for the justice’s gross lack of respect for the free conscience rights of non-believers. In fact, I can make a strong case that the loss of civility, at least how Justice Gorsuch views it, is a good thing.

Calling out the evils of segregation or protesting the government’s lies about the Vietnam War were once widely considered to be uncivil. Homosexuality, divorce, and not believing in Christianity were also considered uncivil in the not-too distant past and even in many circles today. If Martin Luther King had listened to the hypocritical calls for him to act more “civil” in his fight for civil rights, the country would be a very different and much worse place. The bottom line is I would respect these calls for civility much more if the people making them practiced the same principles they condescendingly claim those who disagree with them lack.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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