The Age of Intolerance: Its Consequences for America and the World

By MARCI HAMILTON

Thursday, Dec. 28, 2006

By nature, I am a big-picture thinker, and this time of year, of course, encourages such intellectual forays. But it is not just the end of the year that prompts me, today, to ponder the larger vista, but also the recent, decisive shift in Congress from Republican to Democratic control. There is little question that, in Election 2006, Americans were sending a message: They want to change the course of this country (though the numbers cannot justify claims by the Dems of a "mandate"), and I believe that message has much to do with working toward the end of our age of intolerance.

As one looks back over the legal-political universe of recent years, there is one persistent theme: intolerance. There has been a push from various forces to expand the potential for intolerance, and it has not just been national, but also international.

International Intolerance: The Jihadist Terrorist Front

The obvious global movement of intolerance is the jihadist terrorist front, including Al Qaeda. This loosely affiliated set of ideological fanatics is tied together by an intense intolerance - one that mandates rejection of every religion but a narrow, radical variant on Islamicism; of women's rights; of individual independence of thought; of constitutional democracy; and of children's rights - including even the right of young people not to be martyred for their parents' faith. As with all movements marked by extreme intolerance, this bigoted movement does not define itself by its harsh narrow-mindedness. Its venomous leaders, instead, point to a higher divine mandate to eradicate the world of what, they say, stands in the way of religious purity. The deeply negative and ugly aspects of the movement are sublimated by the message, which purports to locate the movement's own deadly choices in an otherworldly authority that cannot be questioned.

Before moving to the topic of national intolerance, it bears noting that the jihadis have taken intolerance to a historic level. I believe Osama bin Laden will be judged alongside the most memorable tyrants in history, like Adolf Hitler, Joseph Stalin, and Idi Amin. He will inhabit the category of those whose intolerance has taken them to the point of needing to annihilate the "enemies" of their utopia.

National Intolerance: Political/Legal Discourse

By contrast with the jihadists, our national record of intolerance may look tepid, but bin Laden cannot, of course, be the baseline for measuring intolerance in the United States. Here, the baseline is a constitutional democracy that has - miraculously at times - pried open the door for a series of groups who were previously treated as property or worse: slaves became citizens; women moved from being the property of their fathers and husbands to being autonomous, voting individuals; the disabled emerged from the shadow of intense, invidious discrimination to gain a strong statute establishing accessibility and antidiscrimination rights; and, today, especially in the wake of the clergy abuse scandal, we are seeing the emergence of a civil rights movement for children (as I discussed in detail in a prior column). Of course, the Framers did not put into place by conscious thought the particulars of such a widely liberating ethos, but with the Constitution and the Bill of Rights, they did intentionally construct a framework that fostered liberation from tyrants.

This era, sadly, has not been marked by liberation, but rather by a tone of disapproving intolerance. While the majority of Americans, if the many polls are accurate, have not shared these values, the public discourse has been awash in intolerance. For example, women's rights, including the right to choose how to deal with a pregnancy, even when caused by rape or incest, have been under attack.

Meanwhile, the Bush Administration's faith-based initiative has expanded the availability of federal funds to religious organizations, for social work serving local communities. Religious organizations had previously asked for the right to discriminate in hiring, so that they could hire, for positions having nothing to do with religious practice, only those who are fellow believers. Despite the Republican makeup of the Congress at the time, the Administration was unsuccessful in pushing through legislation to give such organizations this right. Regardless, the Bush Administration instituted its own regulations that effectively permit just the kind of discrimination Congress refused to allow.

This move results in intolerance at two levels. First, organizations supposedly serving the larger community's social service needs are capable of discriminating against fully-qualified individuals to deliver those services on the basis of religious belief. As a consequence, the pool of applicants becomes more shallow. The failure to be concerned about this reduction in the best talent available is a form of intolerance, or at least insensitivity, for those who are suffering and are the beneficiaries of the social service programs, and one should never forget that those who qualify for government social services are typically those most in need. Moreover, those applicants who, though best-qualified, are not hired for secular jobs merely because of their religious belief, might as well be living in a theocracy when they learn that their superior qualifications are being rejected because of their religious beliefs.

Second, and this is even more pernicious, thanks to the Bush Administration's regulations, the social service goal is fully transformed into a religious mission, and those needing the services are more likely to be subject to a message of intolerance for any belief other than the faith of the service-delivery organization, whether that message is transmitted through religious symbols throughout the space, or by more direct references to belief as part of the treatment. In some cases, it has meant that a client must withstand a gauntlet of proselytization in order to receive desperately-needed social services like alcohol or drug rehabilitation or employment assistance.

(As a side note, readers should not confuse the faith-based initiative with the entirely separate regime within which religiously affiliated organizations can obtain government money for social services on the condition of certain practices, including keeping the government's money segregated from money to be used for religious purposes. The best example is Catholic Charities, which typically takes over 80% of its funding from the government.)

Finally, while there is a long history in the United States of intolerance for homosexuality, the gay marriage debate spurred by the Goodridge decision in Massachusetts has added public heat to the disapprobation. In the past, this intolerance was spurred in no small part by religious organizations and groups, such as the Roman Catholic Church, evangelical groups, and groups of Orthodox Jews. Now, however, Goodridge has led some states to quickly institute constitutional amendment campaigns to be certain that gay couples cannot be married in any traditional way. In all but Arizona, these so-called marriage amendments, which were in fact anti-homosexuality amendments (who else was threatening marital privileges?), passed with ease.

Intolerance in the General Culture

Wherever one stands on abortion or homosexuality, it cannot be gainsaid that the loudest voices on these issues have been those taking an intolerant approach to both. It has been the dominant tone of the age. But these so-called "hot button issues" do not end the discussion -- an attitude of righteous disapproval has seeped farther into the cultural well. Indeed, I would say it has poisoned many of our interactions. "Road rage" is a product of it, as is the practice of saying in emails that which you would never say to someone's face, and just general, widespread incivility. Everyone seems to have developed a "right" to say whatever current, unexamined emotions dictate, which is rank intolerance for the needs of others. Self-control seems to have walked backstage in our national theater.

This "right" to speak without care for consequences to others has further invited a rash of hubris that is almost impossible to calibrate. The virtue of humility has become a relic of the past. There was a time when Republicans were the "white shoe" elements of the culture, but today, popular conservative commentators, who have made careers of criticizing the biased media, refer to themselves as "El Rushbo," or the "Great One." Moreover, unbounded arrogance is hardly limited to either party with authors such as Michael Moore and Ann Coulter making rudeness and lack of nuance a hallmark of their work.

The beauty of the American system, though, is that it works like a pendulum. We will tolerate only so much of anything, and then the pendulum swings back toward equilibrium and balance. One needs a larger historical lens to be able to assess precisely what the midterm elections meant, and will mean, but there does seem to be voter fatigue with the culture of intolerance.

This observation is buttressed by the currently high poll numbers for a truly moderate Presidential candidate like Rudy Giuliani (and the race to the middle for the politically savvy Hilary Clinton). On all of the most heated public issues, Giuliani takes the tolerant approach. At the same time, Arizona, at least, rejected an anti-gay marriage amendment and on the far right, intolerant individuals like Sen. Rick Santorum (R., PA) were defeated. The pendulum movement is there. Its next high swing is impossible to predict with great certainty, but perhaps in not so many years, I'll be writing a column on "The End of the United States' Age of Intolerance." Ending the intolerance of the jihadist movement is quite another matter.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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