Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion

Preface1Imposing Order: Law and the Origins of the Social Issues Agenda1The Promise of Order and the Power of Expression2Law, Expression, and the Status of Groups82Law and Status Politics in the Theater State16The Social Issues and the Symbols of Government16The Social Issues and the Nationalization of "Factions"20The Social Issues, the Congress, and the President243"Family Values": Policing the Gender Line31A Deferred Prologue: The Anxieties of Manhood and the Expression of Power31Religion, Sex, and Politics37Women as Unreason40Pornography and Law as Images of Power43Maternal Images: Abortion and the Expression of Women's Status50The "Family," the Gender Line, and the Expression of Gay Identity574Representations of Race67Images of Disorder68Formal Racial Neutrality in the Politics and Law of Counterrevolution74The Primacy of Private Discrimination in Racial Subordination77Government, Expression, and the Social Meanings of Race: Labeling and Silencing85Government, Expression, and the Social Meanings of Race: The Languages of Liberation and of Hate90Enacting the Narratives of Inclusion1035Race, Gender, and Political Stagecraft: Two Revivals from Recent Seasons112The Manliness of War112The Morality of the Poor1366The Cross and the Flag147The Politics of Religion and the Symbols of Government147"Capture the Flag" as a Political Game160Symbols of Authority and Power1657The Constitution of a Community of Equal Citizens171Judicial Review and the Politics of Exclusion173The Enduring Principle of Equal Citizenship187Living with Pluralization and Its Discontents202Notes213Index309

\ Gayle BinionIn LAW'S EXPRESSION, LAW'S PROMISE, Professor Karst further develops his commitment to an inclusive citizenry which he so eloquently explored in BELONGING TO AMERICA (1989). In his more recent effort, however, the focus is directly on the American political system and institutions and the ways in which law figures prominently in the social agenda of the counterrevolutionary right. Karst addresses the major aspects of this conservative movement and analyzes the ways in which law as (legislative and administrative) public policy has been put to the service of its goals, and law as the product of judicial review has (at least on significant occasions) served as a brake on its successes. It is not surprising that in the last sentence of the book, Karst reminds us that in the early days of American nation-building, John Marshall was as significant a player as was James Madison. Taking encouragement from the Casey and Weisman decisions in 1992, the book ends graphically on a note of optimism about the ability of the judiciary to maintain our sense of nationhood, transcending the regional and the sociologically parochial, to be the "glue" that is antidotal to the social "solvents" of racism, sexism, homophobia, and religious exclusion. It is simultaneously apparent that the developments of the past year (since, I would assume, Karst's manuscript went to press) may well offer new challenges for his faith. The electoral victory of the Republicans, espousing in their "contract with America," inter alia, a revival of school prayer, as well as their more recent plan to kill the congressional caucuses for black, Hispanic and women's issues have reopened issues that in Karst's view had been reasonably resolved by the judiciary. In developing his thesis, Karst draws conceptually on Clifford Geertz's notion of the "theater state." He shows how the easy manipulation of symbols has especially well served the radical right in contemporary American politics. Beneath the shallow negative symbols of Willie Horton, welfare mothers, feminists, gays and lesbians, lies a very profound message about recapturing the stewardship of society for straight, white, conservative Christian males. But Karst takes this analysis of "the agenda" in a very precise direction, to wit, that underlying much, if not all, of the movement's goals is a profound male sexual insecurity. The perceived lasciviousness of black males, women and homosexuals provides the connecting thread to rationalize what it calls "family values," to condemn affirmative action, outlaw abortion, minimize the significance and authority of women in the marketplace, and to exclude gays and lesbians from the military. As Karst deftly demonstrates, each of these agenda items not only reflects on male sexual insecurity with its attendant fear of humiliation and disempowerment, but as well Page 163 follows: fits within the themes of power hierarchy and exclusivity of citizenship. Karst's commitment to equality and civic inclusion, and his focus on understanding the sociopolitical processes that label, exclude and silence, situate his work squarely within the dialogues of contemporary feminist jurisprudence. Like Martha Minow's MAKING ALL THE DIFFERENCE, Karst's study is very valuable for those of us interested not only in women's experience, per se, but also in its implications for the breadth of the social circle. Picking up on the title theme of the book, to wit, law's "expressive" power, Karst borrows a phrase from Prohibition: "the wets have their drink and the drys their law." Social movements gain much strength from their symbolic policy achievements, whether or not the policies are actually successfully enforced. The counterrevolutionary right is no exception and policies on access to military service provide the prime example of this phenomenon. As per Karst's argument from male sexual insecurity, no institution provides more opportunity for the proving and reaffirming of manhood, and nowhere is it, consequently, more critical for the agenda of the right to restrict blacks, all women and gay men. Historically, blacks were excluded, later segregated in the military. Women have been minimized and marginalized and gay men and lesbians formally barred from service. But this has been largely symbolic and, as Karst argues, fundamentally hypocritical. Despite policy, whenever the military's combat needs have so dictated, women have been put in harm's way and the significant presence of gays and lesbians in its ranks simply overlooked. The serious problem that Karst identifies in this state of affairs is that the policies of exclusion and marginalization within the military reinforce the unequal citizenship of disempowered groups. Karst's latest book is a powerful, exceptionally well-researched and well-written analysis of the interplay between law and a ubiquitous contemporary social movement. He easily interweaves empirical data with jurisprudential concerns and succeeds in proudly recapturing the spirit of the civil rights faith of the 1960s. But if there is an aspect of its prescriptions with which other civil rights advocates may be inclined to take issue, it is with respect to the religious dimension. While Karst has effectively responded to the challenges posed by the counterrevolutionary right with respect to race and sex (the latter including both gender and sexuality), his application of the inclusionary citizenry thesis to religion is somewhat more problematic. He suggests, rightly, that the inclusion principle must necessarily be extended to the religious right as a group and then sets about finding some avenues for demonstrating a public respect for their concerns. But status (gay, black, female or lesbian) and faith are very different phenomena. In his attempt to be inclusionary, empathetic and conciliatory on this score, Karst suggests that within public education the Equal Access Act, "moments of silence," and situating faith vis-a-vis science could be understood as constitutionally appropriate and sensitive to the religious right. But Karst's analysis of these policy initiatives raises a question about the utility of "inclusion" in this context. Will the religious right be satisfied with middle ground resolutions (in any greater numbers than feminists are satisfied with Page 164 follows: myriad restrictions on abortion)? To lessen the sense of exclusion felt by the religious right Karst suggests, very appropriately, that science teachers could discuss the fact that many devoutly religious people do not accept evolution because of their faith. But as Karst acknowledges, the argument one regularly reads with respect to school board debates on creationism versus evolution is that the advocates of the former believe that empirical evidence of their "theory" is as sound as that marshaled by the exponents of evolution "theory." The thoughtful discussion of the matter advocated by Karst, a discussion which probably already takes place with great frequency in answer to students' questions about this tension between religion and science, would be unlikely to be seen as the discussion to which the religious right believes its views are entitled. Similarly, his endorsement of a "moment of silence" policy rests on a belief that this should be sufficient to incorporate those who do wish to pray while safeguarding against the stigmatization of non-adherents. While Karst is very clear that a "moment of silence" would pass constitutional muster only if not tied to an expectation of prayer, one wonders if it is possible for it to not be so tied? Why else would people be asked to be silent in such a context? Is "reflection" other than a secularized reference to prayer? Perhaps these questions, however, might never need to be asked as the legislative record supporting "silence" may always be rife with its religious purposes. The example from Georgia during the past year is instructive on this point. The bill to mandate a moment of silence was amended in the legislature to make it clear that the purpose was prayer, thereby increasing the likelihood of its ultimate constitutional rejection. Perhaps, contrary to Karst's attempt at inclusion, it is more respectful of the religious right to acknowledge that people who want prayer, want prayer, not silence. These observations are more caution than criticism, reflecting what was suggested at the outset. Karst's liberal faith in reason, equality and inclusion has been and will continue to be challenged by the agenda of the counterrevolutionary right, whose essence he has so well captured in his book. REFERENCES Karst, Kenneth L., 1989. BELONGING TO AMERICA. New Haven: Yale University Press. Minow, Martha, 1990. MAKING ALL THE DIFFERENCE. Ithaca: Cornell University Press. LEE V. WEISMAN, 505 U.S. (1992) PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY 120 L. Ed., 2d 674 (1992)\ \