A Case for Empathy

Back in 2007, Barack Obama said that if he got the chance to make a Supreme Court appointment, one of his criteria for a justice would be a capacity for "empathy." Conservatives were predictably outraged. But last week, we got to see what it looks like when a justice is unable to view the world from another's perspective. While Salazar v. Buono may not be too important in the grand scheme of things, one particular exchange during oral arguments ought to make conservatives give some thought to the quality of empathy. Because in the years to come, they're going to learn more about it, whether they want to or not.

The case concerned a dispute over a large cross erected by the Veterans of Foreign Wars to honor those killed in war. Trouble was, they erected it on federal government land in the Mojave National Preserve. Similar to cases involving other religious displays, the question was whether the government can sponsor what is effectively an endorsement of one particular religion. But apparently, Justice Antonin Scalia didn't see it that way.

In fact, he seemed positively gobsmacked that American Civil Liberties Union attorney Peter Eliasberg would argue that a giant cross is a -- get this -- a Christian symbol. This argument -- that religious symbols and statements aren't really religious at all -- has, weirdly, become the position of religious people trying to increase the government's endorsement of religion. We see it all the time in defense of posting the Ten Commandments in government buildings, that the Commandments are just the basis of laws and good living and not really anything religious (because who could find religious content in "I am the Lord thy God, thou shalt have no other gods before me"?).

Scalia apparently thinks that the cross is some kind of universal symbol of death, not a Christian one. "The cross doesn't honor non-Christians who fought in the war?" he asked the ACLU lawyer incredulously. Eliasberg explained that "a cross is the predominant symbol of Christianity," to which Scalia shot back, "It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?"

Eliasberg replied, "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew." This was greeted with laughter in the courtroom, which no doubt made Scalia's blood boil.

It might be easy to read this and conclude that Scalia is some kind of idiot. But that isn't the case -- Scalia is universally acknowledged as brilliant, even by those who find his legal views repellent. What the interaction shows is that Scalia suffers from a kind of blindness common to those in the dominant group, whether by virtue of race, religion, gender, or anything else. It means knowing that your culture is the culture, your symbols ought to be accepted by everybody, and your preferences and needs should simply be the default position for all. It's the reason Scalia can't understand why Jews or Muslims or Hindus might not feel that a cross honors them. It's the reason Sen. John Kyl recently scoffed at a proposal to require insurers to cover maternity costs, saying, "I don't need maternity care" (to which Sen. Debbie Stabenow replied, "I think your mom probably did"). It's what racial, ethnic, gender, or religious privilege is all about.

We tend to avoid discussions about these kinds of privilege, because it is in the interests of those on top to believe that everyone is equal once legal forms of discrimination are removed. In practice, of course, it's much more complicated than that. Though the phrase comes from Alexis de Tocqueville, warnings about the "tyranny of the majority" have been around since Plato. The key factor, however, isn't so much numbers but power. Women narrowly outnumber men, yet many health insurance policies don't cover birth control even though it took about eight seconds for every insurer to make sure Viagra was covered once the 20th century's greatest miracle hit the market back in 1998.

It was just one of a million examples of privilege in operation, though some manage to see it only when they believe their side is getting the short end of the stick. The same folks who complained loudly that Sonia Sotomayor didn't deserve to get into Princeton because of her mediocre test scores (though she lapped just about all of her classmates once she got there) never found it troubling that a weak student named George W. Bush got into Yale. Sure, when the admissions office got Bush's application, his father (Yale class of '48) was a congressman, and his grandfather (Yale class of '17), the former senator, was on the university's Board of Trustees. But what did that have to do with anything?

As cemented as many of the privileges of power are, numbers do matter, and folks like Scalia and Kyl might want to start looking over their shoulder. America's demographics are rapidly changing, and in nearly every way to the numerical detriment of our dominant groups. Last year, the Census projected that whites will become a minority of the American population in 2042. It's already happened in some places -- in 2005, Texas joined Hawaii, California, and New Mexico to become the fourth majority-minority state (plus the District of Columbia). And as of 2008, the white population was less than 60 percent in six other states (Nevada, Maryland, Georgia, Arizona, Mississippi, and New York).

When it comes to religion, the dominant group may be able to hold off a while longer. We're some time away from Christians becoming a minority, but their proportion of the population is slowly declining nevertheless. According to the American Religious Identification Survey, 76 percent of Americans identified as Christians in 2008, down from 86 percent in 1990. Meanwhile, those who declare no religion have risen to 15 percent of the population. With each passing year, the idea that a cross could represent all Americans will grow more and more ridiculous.

Something tells me those who share Scalia's perspective would feel a little differently about questions like the one raised by the Mojave case if they were outnumbered. For example, healthy majorities of the public have always supported prayer in public schools. But imagine that your typical advocate of school prayer happened to move to, say, Dearborn, Michigan, home of the densest concentration of Muslims in the country (according to the 2000 census, 30 percent of Dearborn residents were of Arab descent; the number is probably higher by now). Then imagine that at the local public elementary school, parents suggested starting each day with a passage from the Koran read over the P.A. system. Our defender of classroom prayer would probably discover a newfound affection for the separation of church and state.

Coming to that realization before you become a minority yourself requires an ability to put yourself in someone else's shoes. It's seldom an easy thing to do. But some people who never thought they'd have to do so will get the chance before long.

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