Harvard Law Prof. Says Liberals Should Treat Christian Conservatives Like Nazis

Citizen of Malchin shouts slogans and carry a poster reading "Get Nazis out" in prtoest against supporters of the ultra right-wing German National Democratic Party (NPD) during their election campaign rally in the eastern German town of Malchin September 5. About a hundred people took part in the rally to campaign for the upcoming Mecklenburg-Vorpommern state elections and the German general elections in September. | (Photo: Rueters/Fabrizio Bensch)

A Harvard law professor suggests that conservative and religious objectors to same-sex marriage need to be treated like Nazis were treated following World War II.

Professor Mark Tushnet, a constitutional law scholar and the William Nelson Cromwell Professor of Law at Harvard Law School in Massachusetts, wrote in a recent blog post that liberals should begin abandoning what he calls "defensive-crouch liberalism" and push forward previously rejected items on the liberal agenda now that Democrats seem to be in control of federal appeals courts and district courts, and poised to take a majority in the Supreme Court.

Tushnet added that liberals don't need to worry anymore about conservatives, who previously had the ability to overturn lower court rulings with a majority on the Supreme Court, now that Justice Antonin Scalia's passing has split the Supreme Court.

Tushnet believes that liberals should be planning to take advantage of the situation by compiling a list of court cases that should be overturned to push through a liberal judicial system.

"What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up," Tushnet writes. "Thinking about what that doctrine should look like is important — more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open. "

Tushnet goes on to argue that the "culture wars are over," and that "they lost" and "we won."

"[T]hey had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own," Tushnet writes, stating that it is was only after the Supreme Court's ruling on gay marriage last June that conservatives started pushing for legal protections for their beliefs. "For liberals, the question now is how to deal with the losers in the culture wars. That's mostly a question of tactics. My own judgment is that taking a hard line ("You lost, live with it") is better than trying to accommodate the losers, who — remember — defended, and are defending, positions that liberals regard as having no normative pull at all."

"Trying to be nice to the losers didn't work well after the Civil War, nor after Brown [v. Board of Education]," Tushnet added. "And taking a hard line seemed to work reasonably well in Germany and Japan after [World War II]."

Tushnet points out that LGBT activists have already taken the "hard-line approach" that he is referring to and accuses "liberal academics" of being too tolerant and open to accommodation of opposing points of view.

"When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights," Tushnet writes. "But the war's over, and we won."

As there has recently been a push in American society to try quiet and punish people who hold conservative points of view, Tushnet's op-ed drew the attention of a number of conservatives legal analysts, including Heritage Foundation senior fellow and author Ryan Anderson.

While Tushnet claims that it was conservatives who are responsible for the culture wars and conservatives who fought for scorched-earth policy, Anderson disagrees. He points out that it has primarily been the liberals who have used the court systems to reshape public policy through the years.

"Since when have liberals been defensive? The scorched earth policy has been theirs. They've been the aggressors — they've been offensive. Conservatives have been defensive," Anderson wrote in an op-ed published by The Daily Signal. "It seems hard to envision how conservatives could have declared a unilateral cease fire when they weren't the ones firing in the first place. Liberals aggressively sought in the courts an unlimited abortion license, a redefinition of marriage, and now for transgender bathroom policies throughout the nation. Liberals haven't been bashful to use the courts to reshape social policy when they couldn't win at the polls."

Anderson also detests Tushnet's assertion that conservatives and religious objectors need to be treated with the same hostility that Nazis were treated with in post-World War II Germany.

"Ah, yes, if the 'losers' of the American 'culture wars' are the functional equivalent of racists and Nazis, then Tushnet's argument works wonderfully," Anderson wrote. "But if Orthodox Jews, Roman Catholics, Evangelical Christians, Latter-day Saints, faithful Muslims, and other Americans who believe that marriage is the union of a man and woman are decent members of society, maybe Tushnet should reconsider his hostility."

Anderson added that Tushent's mindset is a perfect example of modern day "illiberal liberalism."

"But protecting the rights of a minority — his "losers" — in the wake of such change is an important feature of America's tradition of tolerance in the midst of pluralism," Anderson argues. "It's what real liberalism requires."

Follow Samuel Smith on Twitter: @IamSamSmith

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