The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.)Professor Tushnet doesn't bother to put in links. I found the Wikipedia entry for "culture wars," and it traced the term to "Culture Wars: The Struggle to Define America" by the sociologist James Davison Hunter. That was published in 1991, 5 years before Scalia, in Romer, wrote of the "Kulturkampf" ("culture war").
Does the war metaphor matter? Is there some idea that whoever called it a "war" first is — after the war ends — properly treated like a conquered enemy?
And they 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. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). 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. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. 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. But the war’s over, and we won.Tushnet is getting flak for that Germany-and-Japan reference:
Well, that certainly provoked people (or rather, one parenthetical comment did). Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).Again, Tushnet won't provide links, but I can understand not wanting to boost the websites that are hating on you. But hate begets hate, and leaning into the war metaphor has consequences. I remember blogging — the day after the Court decided Obergefell — that it was a time for love and saying "Better get on the love train, people, before it's too late!... You can stand there on the platform and stomp your feet as it leaves without you, but now would be a good time to get on board and show some love." I know some religious people can't do that, but politicians had a chance and a choice to make, and those who chose to keep fighting have provoked the winning side to ask how do they get hold of their victory and to wonder how they would have been treated if they had lost.
And by the way, it seems to me that after what Germany and Japan did in WWII, the way we treated them was extraordinarily benevolent.
ANYWAY: Tushnet declines to say what he means by "hard line" other than that it "will vary with the circumstances" and that he opposes the kind of "religious liberty" laws that I think, ironically, Justice Scalia himself would have opposed.