Excerpt
The Tyranny of Tolerance
Chapter 1
The Cloud Cuckooland of Radical Feminism
Differences [between men and women], including the products of social inequality, make unequal treatment not unequal at all.
—Catharine MacKinnon, “Reflections on Sex Equality Under Law,” Yale Law Journal, 1991
This most illiberal Court . . . has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law.
—Justice Antonin Scalia, dissenting, United States v. Virginia (1996)
Do you think judges should be able to write freely about the law? Do you think that judges should sound the alarm if radicalism threatens to hijack the legal system itself?
Do you think judges should be truly independent of any dominant legal elite?
I believe that judges can and must write freely about the law, and that they have a positive duty to resist political forces that try to take over the legal system. I believe that judicial independence actually means more than never having your salary cut—that it means speaking and writing about threats to that independence from any source.
I have taken an oath to support the Constitution of the United States. I cannot in good conscience sit idly by and watch the destruction of that Constitution by a judiciary that is no longer independent. Despite a tradition of silence by judges on such topics, I can no longer keep quiet about what I, as an insider, have seen happening in, and to, our courts. I may be accused of unethical conduct and threatened with professional discipline, as I was in the past. If that is a risk I must take, so be it. Others before me have taken much greater risks in defense of republican government.
I have witnessed liberal totalitarianism on many fronts as both a lawyer and a judge, but it is fair to say that I probably would not have written this book if I had not had my own, very direct run-in with the tyrants of tolerance. That unpleasant personal experience forced me to do some serious thinking about what is happening to American law, how it is happening, and who is making it happen. And finally it convinced me to write this book, and to accept whatever consequences came from publishing it.
That run-in occurred when I dared confront one of the most active elements of liberalism: the radical feminists.
“Manifesting Bias”
If Social Security is the “third rail” of American politics, then sex is the third rail of American law. Anyone who touches it, except in the manner approved by the tyrants of tolerance, is fried. In this realm, the tyranny of tolerance is best described as rule by the radical feminist cadre of liberalism. Like the rest of the illiberal liberals, femifascists display single-minded devotion to imposing their tyranny on the American people—and will viciously punish those who resist.
I learned this from painful experience.
In 1998, a case came before me in which a woman alleged that the male defendant, who apparently had been her employer, had inflicted emotional distress based on alleged sexual harassment. The defendant’s alleged harassment involved making sexual advances and touching the plaintiff (in a manner that stopped well short of actual sexual assault). The plaintiff had previously litigated a claim of employment discrimination based on the same course of conduct of the defendant, and lost. So now she was recasting the claims, in part to avoid the statute of limi- tations that now barred the employment claims.
I carefully researched the law of Missouri to see whether the plaintiff’s theories were defensible as a matter of law. As pleaded, they were not, I concluded. I had law clerks do independent research on the matter, and they confirmed my own view of Missouri law. At the time the case came before me, Missouri law on “sexual harassment” as infliction of emotional distress was sparse; it seemed the plaintiff wanted to import certain theories of federal employment law regarding “sexual harassment” into Missouri common law.
Having reached a conclusion based on impartial examination of the law, I wrote an opinion dismissing the woman’s claim of infliction of emotional distress, but giving the plaintiff an opportunity to revise her claim to meet what I thought were proper legal standards.
In that opinion, I felt obliged to sound an alarm about the threat that radical feminist sexual harassment theories pose to common sense and common law, especially because such views could easily lead to fictitious claims and vexatious suits. I was blunt in my criticism of radical feminist views of sexual harassment law. “The question before this Court,” I wrote, “is whether a wholesale extension of notions of ‘sexual harassment’ into tort law is warranted, without direction from the people through the [legislature]. The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor [feminist scholar] Catharine MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”
I concluded my opinion by observing the danger of imposing liability based solely on speech. “[T]he sexual harassment police,” I wrote, “seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace.” More specifically, I noted that it seems clear to everyone “except for the denizens of the cloud cuckooland of radical feminism” that no court had ever held a sexual advance to be actionable in and of itself.
Although I did not expect liberals to applaud my opinion, and I probably expected a certain amount of controversy, I was comfortable with the complete freedom judges have had historically to say what they thought about the law. When writing opinions, especially on issues where precedent is unclear or conflicting, judges have a unique opportunity to criticize the parties’ theories and to explain or instruct the public concerning the state of the law. I felt particularly comfortable because my dicta did not control my legal analysis of the main issue. I was doing nothing unusual—or so I thought. (My opinion is included as an appendix to this book, so you can see exactly what I wrote.)
Prepared for public criticism, I was unprepared for what actually happened. The opinion did not become the subject of open debate, but rather, I learned later, radical feminists began working behind the scenes within the St. Louis legal community to attack my integrity and accuse me of official misconduct for writing the opinion. (Never mind that, to this day, no competent lawyer has contended that I distorted the law in reaching the result that I reached.)
In Missouri, judges are subject to investigation and discipline through a body known as the Commission on Retirement, Removal, and Discipline. Unbeknownst to me, liberal Democratic governor Mel Carnahan had appointed virulent radical feminists (or “femifascists”) to that body, women who openly expressed contempt for men and pressured judicial nominating commissions charged with selecting judges to discriminate against men. The femifascists thus had an ideal forum in which to mount their secret attack.
Some months after filing my opinion in the harassment case, the Discipline Commission notified me that someone had filed a complaint alleging that my opinion showed “preconceived bias against women, female lawyers, or sexual harassment suits.” Under Missouri rules, I was not allowed to see the complaint itself or to know who filed it.
Although I can honestly say that I did not react to the complaint with the frenzied groveling of, say, Harvard president Larry Summers after he foolishly speculated about differences in scientific ability between men and women,1 I confess that I did beat a retreat of sorts. Perhaps it was weariness after two grueling years as chief judge of my circuit (elected unanimously, I might add, by a highly “diverse” court), perhaps it was fear or shock at the use of this weapon against me, but I simply wanted the matter put to rest. So in my response to the Commission, I acknowledged the polemics and promised that I would use more care in expressing myself in the future (self-censorship?). In the end, the Commission did nothing but send me a “reminder” to avoid language that “might” give rise to an “appearance” of bias in performing my official duties. (For the sake of full disclosure, I also include this correspondence in the appendix.)
In retrospect, I should have been prepared to sue the Discipline Commission to vindicate the absolute right of judges to express their views in their opinions. After all, don’t judges have the right and duty to “say what the law is”? If they can’t say what they think, what happens to judicial independence?
As horrifying as I find the prospect that the tyranny of tolerance can force judges to censor themselves (and conceivably even adjust their rulings) to avoid the liberal hammer, I can’t say I hadn’t been warned that this possibility existed. But such warnings made no sense to me given the freedom judges have long enjoyed to express their views on the law.
The warnings came from several lawyers shortly after I was elected chief judge of my circuit. These attorneys were aware that in 1992 I had written a scathing review of a report issued by the Missouri “gender and justice” commission, which was set up in the early 1990s to study Missouri courts and laws for sex bias and to recommend cures. Femifascists had successfully pressured state and federal courts around the country to create such commissions. The Missouri commission, like those of other federal and state jurisdictions, was under the thumb of radical feminists, and its report was replete with dubious conclusions based on thin or misleading data, all used to demand changes to discriminate in favor of women and against men. In addition to writing a critical review of the commission’s report, I presented to the Missouri Judicial Conference a resolution condemning it. My resolution was supported by half of the members of the conference executive council and a substantial number of Missouri judges, but it failed to win a majority vote of the conference.
When the resolution did not pass, I saw no point in continuing the battle, and I thought that was the end of the matter. Little did I know that, like dissenters in the Soviet Union, I was now marked for retaliation by the PC police.
The Femifascist Legal Assault
Although I evaded the sensitivity gulag, my run-in with the tyranny of tolerance made me realize how thoroughly liberals have remade Ameri- can law over the past several decades. If the femifascists and radical liberals can hijack the courts and intimidate judges into remaining silent in the face of subversion of the law, then what’s left of constitutional government? Worse, if these people actually control the judiciary, what happens to democracy?
It was entirely fitting that my direct encounter with the tyranny of tolerance involved that cadre of liberals known as femifascists. Liberals certainly do not confine their efforts to fighting for special treatment for women; as we will see throughout this book, their favored groups range from racial minorities to homosexuals to the disabled to criminals to terrorists. But the femifascists offer a revealing look at how liberals have seized power through the judiciary, allowing the law to be rewritten without regard to the democratic process. Both bench and bar have cravenly acquiesced to the femifascists and signed on to their radical agenda.
The femifascist confluence with liberalism has spawned a truly horrible jurisprudence. Concluding that the law should not treat men and women equally, but should treat women better than men to “compensate” women for centuries of oppression, radical feminists exclude men from any reproductive rights and attack traditional marriage, with its implied contractual rights of both men and women. (Indeed, femifascists do not disguise their hostility to the institution of marriage and to the role of women as mothers.)2
Perhaps the clearest example of how femifascists have used the law to replace the supposed oppressors with the oppressed is found in the legal treatment of “sexual harassment.” If sexual harassment was a means by which men kept women in a subordinate societal role (something that need not be conceded), it is clear at this point that sexual harassment law threatens to become a weapon by which the femifascists can ensure the oppression of men. The judiciary enacted this radical change.3
What we know today as sexual harassment law resulted largely from Title VII of the Civil Rights Act of 1964, which forbade discrimination on account of sex in terms and conditions of employment. Liberals pushed the courts to apply Title VII in a way Congress never contemplated. Building on principles developed to prevent employers from intimidating black employees into leaving their jobs, the courts expanded the notion of a “hostile and oppressive work environment” to so-called sexual harassment.4
The femifascists’ first step was to establish the basic principle that a female employee could suffer sex discrimination as a result of harassment on the job, even if she could not show any tangible job detriment, such as demotion or loss of pay. Another principle established was that the “harassment” could be “unwelcome” even if it involved voluntary, consensual sexual relations. Of course, once liability can be established without reference to any objective criteria such as loss of promotion or pay, the limits of liability are hard to come by. So the courts solemnly decreed that the harassment had to be “severe” and “pervasive.”5 And just to give employers an additional incentive to censor employee speech and to police contact between the sexes in the workplace, the courts held out the largely illusory prospect that the employer could evade liability if it had a specific policy proscribing sexual harassment backed up by a grievance remedy that encouraged victims to come forward.6 Finally, despite centuries of employment law to the contrary, the courts decided that an employer would be liable for words and acts of nonsupervisory employees acting outside the course and scope of employment. The Equal Employment Opportunity Commission (EEOC) has gone so far as to claim that employers can be held liable for the words of nonemployees!7
The femifascists gleefully embraced sexual harassment law,8 as it gave them the whip hand in enforcing standards for male behavior in the workplace. The courts’ creation of sexual harassment law prompted many employers to establish speech and conduct codes, ostensibly neutral, but primarily aimed at men. The new standards were also rapidly written into professional conduct codes for lawyers and judges. Every man was immediately placed at risk if he made any remark that was even claimed to be off-color, to a woman.9
In fact, the changes sparked tremendous pressure to take disciplinary actions aimed at men who “offended” women or merely made sexual remarks. In another case that came before me, the record showed that an employee had been disciplined for remarking “nice legs” to his boss’s wife; Judge Robert Bork relates the story of the male student accused of a “mini-rape”—whatever that is—for commenting about a female student’s appearance; arbitration rulings show that male employees have been disciplined merely for banter that included sexual remarks; writers on employment discrimination law emphasize discipline of any alleged harasser as the most effective step an employer can take when confronted with a sexual harassment complaint.10
The Supreme Court’s “pervasiveness” standard did not satisfy the femifascists. They demanded that the standard be revised so that challenged conduct be assessed by what was hostile or abusive in the eyes of a reasonable woman.11 That effort failed, but the radical feminists achieved other successes. Notably, many courts soon began to ignore the “pervasiveness” standard, or, as is often their way, to quote it and apply it in a manner that essentially ignored it. Thus, in one case, an employer was subjected to a trial because a female fire department lieutenant claimed that she was subjected to a male subordinate’s obscene tirade, even though the male subordinate was off duty at the time and not on the employer’s premises. The federal court of appeals found that the male firefighter’s comments were somehow attributable to the employer, who presumably should have fired the male for comments made in a public forum. The court said that the single incident was somehow “severe and pervasive.”12
One of the most significant aspects of sexual harassment law is that it never demands any actual objective harm to the claimant, whether financial or psychological. Before liberals engulfed the law, words alone had seldom been actionable, unless they were defamatory; at the very least, to prove infliction of emotional distress, one had to show substantial mental or emotional injury.13 Now, thanks to the femifascists’ tyranny of tolerance, words alone can bring serious consequences to the speaker, even if they result in no tangible harm to the listener. Heretofore, freedom of speech meant just that: freedom to speak, without fear of consequences. Now, employers and their employees have lost freedom of speech, and the federal courts joyfully enforce this new censorship.14
One recent case illustrates the idiocy of sexual harassment law. In 2001, the U.S. Supreme Court had to be bothered to weigh in on the case of Clark County School Dist. v. Breeden.15 In that case, a male employee had the effrontery to utter, in the presence of a female coworker, the sentence, “I hear making love to you is like making love to the Grand Canyon.” The man didn’t direct the remark at the female coworker; he simply read it aloud from a psychological evaluation report in a job applicant’s file. But then the male employee who read the remark had the unmitigated gall to look at the woman and say, “I don’t know what that means.” Whereupon another man present said he would explain it later, and they both dared to chuckle. This conduct led the woman to complain to her superiors. When they did not exact the obligatory pound of male flesh from the utterer, she filed suit, contending that she had been punished for complaining about this illegal behavior, and therefore her employer had violated Title VII by “retaliating” against her for complaining about her coworker’s supposedly illegal behavior.
The female employee’s claim of sexual harassment was so ridiculous that not even Justice Ruth Bader Ginsburg swallowed it. But somehow at least two judges of the federal court of appeals had bought into the claim. And that is my point: It is ludicrous that such a claim could even get in the courthouse door, let alone up to the United States Supreme Court. But that is exactly what the femifascists want. The claim in Breeden failed, but few employers are willing to fight the issue all the way to the Supreme Court.
Caving in to the Femifascists
Sexual harassment law is by no means the only weapon the femi- fascists use in the battle to impose their views on our government and society. As we have seen, I tried, and failed, to limit the damage done by another of the femifascists’ weapons: the gender and justice commission. These commissions, which state and federal courts created and populated with femifascist-friendly liberals in the late 1980s and 1990s, studied supposed “disparate treatment” of men and women in the law. Just as the Missouri commission did, gender and justice commissions around the country used the flimsiest of evidence to “prove” horrible discrimination against women in the justice system—from podiums in courtrooms that were too high for women lawyers (but is the difference in average height between men and women a “real” difference between the sexes, or just a construct?) to wrongheaded ideas about the presumption of innocence in “domestic violence” cases.16
Virtually every gender and justice commission demanded major changes in the way the courts and lawyers treated women, but not with a view to achieving equal treatment of the sexes. These commissions demanded quotas in judicial appointments, not with reference to the relative proportions of men and women lawyers (the qualified applicant pool), but with reference to the relative numbers of men and women in the general population. In Missouri and Iowa, for example, radical feminists insisted that at least 50 percent of appointments to the state judiciary be female.17 This arbitrary standard was plainly at variance with established law concerning employment discrimination,18 but in accord with the femifascist political agenda to supplant men with women decision makers at every opportunity.
For every ill perceived by the gender and justice commissions, they demanded special “training” of judges and lawyers. Such training was a thinly veiled effort to reeducate judges and lawyers to toe the femifascist line in every case, but especially in domestic violence, sexual assault, and similar cases. Judges were to “encourage” prosecutors to pursue rape cases to trial, regardless of the merits of the case—and regardless of the proper role of the judge as neutral arbiter in an adversary system. The issue of consent was to be eliminated from sexual assault cases, because, as radical feminist “scholars” such as Susan Estrich (Michael Dukakis’s campaign chief in 1988) could show, even when women say yes, their consent is merely the product of centuries of oppression.19 Neglecting no aspect of the process, the Missouri gender and justice commission even suggested that juries be ordered to elect women as foremen—er, forepersons.
The gender and justice commissions also demanded enactment of speech codes that required judges to become censors of lawyers and other judges.20 The powerful duumvirate of illiberal liberals and femifascists has compelled censorship of the language itself: every rule, statute, regulation, opinion, brief, or whatever must be “gender neutral.” The all-inclusive male pronoun must be banished from the language of the law—although everybody knows that the English language provides no ready substitute. In effect, they resurrected the old English rules of licensing speech.
More important, as my own case illustrates, a judge must never, ever criticize femifascist jurisprudence. My opinion in the sexual harassment case was attacked not for faulty legal analysis, but because my rhetoric was too polemical. Why? Were the femifascists afraid that my criticism might strike a responsive chord in the public, in the legal profession, in the courts? The complaint against me focused on my diction. Indeed, the notice of the complaint said so: “The complaint alleges that the language used in the order indicates a preconceived bias.”
Ultimately, what are we talking about? Ideas. And the femifascists, like the rest of illiberal liberals, will allow no ideas at odds with their doctrines.
Special Treatment
At its core, the femifascist agenda is based on hatred for men. Hatred is not too strong a word to apply to the most radical feminism. For example, Catharine MacKinnon, one of the foremost exponents of radical feminist legal doctrine, attacks the basic premise of the equal protec- tion clause, comparing it to Nazi legal doctrine. She also believes that white men are the root of all evil and injustice in America, and that the law must strip power from them to compensate women for their past oppression.21
In a rational legal order, the femifascists’ venomous hatred for men (particularly white men) would be condemned as vigorously as any other hatred based on race or sex. That it is not condemned, but rather exalted, exposes the hypocrisy of the liberal legal order. As in the realm of race discrimination, it does not follow that the sons are to be punished for the sins of the fathers; but to liberals, such replacement of oppressors follows as a matter of course. And this state of affairs will continue so long as liberals, including the femifascists, remain in control of the judiciary.
The liberal philosophy of judicial absolutism is made to order for the femifascists. They readily distort the law to achieve their ends of special treatment for (some) women at the expense of men and other women who do not subscribe to their agenda. To understand the truly discriminatory purpose of the femifascists’ agenda, consider that the ACLU and other liberal organizations have actually called for the drug laws to be enforced differently for women.22
The femifascists’ philosophy of enforcing special treatment for women creates some striking inconsistencies. They maintain that the differences between men and women are mere “constructs” and denounce laws that treat women differently, but their entire legal campaign is predicated on the idea of affording women special protections or compensations—different kinds of protections and compensations from what the law formerly provided, to be sure, but protections and compensations just the same.23
As a result of the femifascists’ legal efforts, the courts, too, have been inconsistent. The schizoid femifascist philosophy—which oscillates between demanding equality with men and demanding better treatment than men—leads the courts to do much backing and filling.
In 1882, the Supreme Court held that a state could legitimately restrict membership in the bar to men.24 The femifascists love to dwell on the concurring opinion of Justice Joseph P. Bradley, who declaimed about the proper roles of men and women as devised by the Creator. But the gravamen of the decision was simply that the judgment about who was suited to be lawyers should be made by the legislature. The decision did not write into the Constitution any requirement that lawyers be men.25 In this regard it is a far cry from what we see today from liberal judicial activists.
In 1908, in the case of Muller v. Oregon,26 the Supreme Court held that protective legislation designed to limit the working hours of women was constitutional. At the time, the decision was thought to be progressive. Indeed, the attorney who argued successfully for protecting women from long work hours, Louis Brandeis—later to become a Supreme Court justice—would probably be quite surprised to learn that his case is now just one more count in the indictment against the oppressive white male patriarchy. Here, again, the Court was not writing anything into the Constitution that required women to be limited in working hours or anything else. It quite simply—and quite properly—found that the Constitution did not forbid such protective legislation.
At this time, it is constitutional for Congress to exclude women from military draft registration (and presumably from combat),27 for legislatures to grant special tax exemptions to women but not men,28 for Congress to provide different standards for men and women in determining whether they are dependents of their spouses for purposes of computing Social Security benefits,29 and for federally assisted colleges to abolish men’s sports in order to provide additional athletic scholarships for women.30 It also is apparently constitutional to treat pregnancy differently from other physical conditions requiring medical treatment,31 although such differentiation in the employment context has been forbidden by the Pregnancy Discrimination Act, amending Title VII of the Civil Rights Act of 1964.
It is unconstitutional, however, to exclude women from historically all-male military schools,32 to exclude men from women’s colleges,33 to forbid the sale of 3.2 percent beer to men between the ages of eighteen and twenty-one but not to women,34 and to exclude women from juries by the use of what are called peremptory challenges (in which the litigants get to eliminate a prospective juror from sitting on a trial jury).35
In achieving its varying results, the Supreme Court simply created a special standard of assessing claims of denial of equal protection to women, calling it “intermediate scrutiny” or “exceedingly persuasive justification.” These phrases are nowhere to be found in the Constitution, but the courts adopted them so they could strike down legislative distinctions between the sexes with which they did not agree.36 In other words, when five justices want to show how “up-to-date and right-thinking” they are “in matters pertaining to the sexes” (as Justice Antonin Scalia once put it37), they simply strike down the law they disagree with. This is not constitutional law; it is social policy making in robes.
Justice Felix Frankfurter, by no means a hidebound conservative, expressed the traditional notion of how the courts should view laws distinguishing between the sexes:
The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes. . . . The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.38
Try telling that to Catharine MacKinnon or Ruth Bader Ginsburg! For them, shifting social standards, or creating new social standards, is what modern constitutional law is all about.
Again, the point is not that the legislation in question is right, or the best policy, but that the courts should not substitute their notions of social policy for those of the legislature, either as a result of liberal dominance or femifascist intimidation. In 1908, Louis Brandeis mustered the best “scientific” support he could find, to support protective legislation for women. In 2005, such “science” would be derided by Justice Ginsburg. Who decides what “science” should be followed? The courts, or the people’s representatives?
As Justice Scalia has written, “The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.” Referring specifically to claims of discrimination on the basis of sex, Scalia added, “Even while bemoaning the sorry, bygone days of ‘fixed notions’ concerning women’s education, the Court favors current notions so fixedly that it is willing to write them into the Constitution by application of custom-built ‘tests.’ This is not the interpretation of a Constitution, but the creation of one.”39
Forced Compliance
The liberal notions of sexual harassment and sex discrimination generally have little to do with law and everything to do with power. The courts exist to do liberal bidding, and if a state judge dares utter a contrary word, then remove him! My own case illustrates how much radical liberals, and especially the femifascist cadre, oppose a truly independent judiciary. That opposition leads them to make the meanest and most vicious attacks on highly qualified judicial nominees who do not subscribe to their view of the law and the judiciary. The equal rights amendment failed in the political process, but the femifascists know that a liberal judiciary can and will render the amendment unnecessary.
The orthodoxy of radical feminism should have no greater claim to monopoly in the marketplace of ideas, or in the language of the law, than any other political orthodoxy. The equal rights amendment failed precisely because there are, and always will be, significant differences between men and women. These warrant recognition in the law, if desired by a majority of the people (women are a majority) speaking through their elected representatives. The “tolerance” and “sensitivity” and “compensation” demanded by femifascist liberals is really tolerance with a brown shirt and the sensitivity of the reeducation gulag.
Of course, it is the duty of an independent judiciary to ensure that the law and the judiciary are not subverted in favor of special interests. So why aren’t the courts doing their job? Because the illiberal liberals have hijacked the judiciary to distort and pervert the Constitution in service of their agenda—and not just in matters of sex.
