RUTHFULLY YOURS

Seeking to prohibit every kind of “discrimination,” activists in and out of government threaten the free practice of, among other faiths, Judaism.

Not so long ago, doubts about the ability of Jews to live and practice Judaism freely in the United States would have been dismissed as positively paranoid: relics of a bygone era when American Jews could be turned away from restaurants and country clubs, when restrictive covenants might prevent their purchase of real estate or prejudicial quotas limit their access to universities and corporate offices.

None of that has been the case for a half-century or more. And yet recent developments in American political culture have raised legitimate concerns on a variety of fronts. To put the matter in its starkest form: the return of anti-Semitism, by now a thoroughly documented phenomenon in Europe and elsewhere around the world, is making itself felt, in historically unfamiliar ways, in the land of the free.

Statistics tell part of the tale. In 2014, the latest period for which figures have been released by the FBI, Jews were the objects of fully 57 percent of hate crimes against American religious groups, far outstripping the figure for American Muslims (14 percent) and Catholics (6 percent). True, the total number of such incidents is still blessedly low; but what gives serious pause is the radical disproportion.

The rise and spread of anti-Israel agitation, particularly on the nation’s campuses, is the most common case. Such agitation, expressed in the form of defamatory graffiti, “Israel Apartheid” demonstrations, and the verbal or physical abuse of pro-Israel students, feeds into and is increasingly indistinguishable from outright anti-Semitism. Even the most zealously “progressive” young Jews are targeted as accomplices-by-definition with the alleged crimes of Zionism. As one student who has fallen afoul of his campus’s orthodoxies has lamented, “because I am Jewish, I cannot be an activist who supports Black Lives Matter or the LGBTQ community. . . . [A]mong my peers, Jews are oppressors and murderers.” Such is the progressive doctrine of “intersectionality,” according to which all approved causes are interconnected and must be mutually supported, no exceptions and no tradeoffs allowed.

Lately, this brand of wholesale anti-Semitic vilification under the guise of anti-Zionism has leapt beyond the precincts of the academy to infiltrate American political discourse, becoming vocally evident on both the political left and the political right and insidiously infecting this year’s presidential campaign and party maneuverings. For an analysis of the campus assault’s underlying mechanisms and wider effects, Ruth Wisse’s Mosaic essay, “Anti-Semitism Goes to School,” is unsurpassed. So far, the trend shows no sign of abating.

But there is another danger, equally grave though as yet less open and less remarked upon. It is connected with longer-term shifts in Americans’ fundamental understanding of themselves and of their liberty, and consequently with the laws that embody and reflect that understanding: in particular, the laws enshrining America’s commitment to religious liberty and, relatedly, liberty of association or, as the Constitution has it, assembly. Coming to the fore over issues of personal identity, most saliently in relation to the gay-rights movement, same-sex marriage, and transgender rights, it has resulted in a legal battle in which the radioactive charge of “discrimination,” borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.

What to make of the furor touched off by the speech at the Democratic National Convention of Khizr Khan? Khan spoke about his son, an American war hero, Army Captain Humayun Khan, a Muslim, who gave his life 12 years ago in Iraq to save his soldiers from a suicide bomber.

But Khan, the grieving father, did not stop there. In a windup to endorsing Hillary Clinton as “the healer,” waving a copy of the American Constitution, Khan attacked Donald Trump, asking if he has even read the U.S. Constitution, and saying “You have sacrificed nothing and no one.”
Trump then attacked Khan, implying that his wife, Ghazala Khan, had remained mute onstage because she was a Muslim woman. Ghazala Khan has now written an op-ed in the Washington Post, grieving for her son and attacking Trump: “Ghazala Khan: Trump criticized my silence. He knows nothing about true sacrifice.” Khizr Khan has just appeared on NBC TV’s “Meet the Press” to denounce Trump as “a candidate without a moral compass.”

By all means, let’s debate these matters. But in an election contest with plenty to deplore on both sides, what’s sauce for the gander should also be sauce for the goose. If we are going to talk about candidates without a moral compass, what about Hillary Clinton?

In finding a way through this minefield — in honoring war heroes and respecting their families, while navigating the sinkholes of this presidential race — I’d say Seth Lipsky’s New York Sun gets it exactly right, in an editorial headlined “Gold Star Hypocrisy.”

The Sun begins, quite rightly:

It was a magnificent thing for Secretary Clinton and the Democratic Party to honor the heroism of, in Captain Humayun Khan, a Muslim-American who gave his life for his comrades and country. It was a reminder at a time when America is under attack by an enemy who claims to be acting in the name of Islam that there are millions of loyal Americans who adhere to the Muslim faith. Captain Khan’s heroism is impossible to alloy.

The Sun goes on to express shock that Khizr Khan “used his son’s sacrifice on the field of battle for political purposes,” but underscores that we must respect Khan and his wife: “his and his wife’s grief is unimaginable. They are Gold Star parents, and all Americans will rise in their presence.”

Then the Sun asks, and answers, an important question:

Where was Hillary Clinton at the hour Captain Khan stepped forward in the face of our common foe? She, after all, had cast one of the votes that sent him to war (a majority of Democratic senators did so). Yet as it became clear that the fight would be tougher than she had imagined, Mrs. Clinton had begun to retreat. Though she claimed to Larry King of CNN that she didn’t regret her vote to give the president war authority, she started to cavil.

From August 4 through 9, 2016, the American Bar Association (“ABA”) will hold its annual meeting in San Francisco. Among the scheduled events is the business meeting of the House of Delegates, the ABA’s governing body. The Delegates will consider a number of policy recommendations presented as reports from its standing committees. One of these proposals comes from the ABA’s Standing Committee on Ethics and Professional Responsibility and, if adopted, would undermine many of the rights of lawyers, including the historic and absolute right of each lawyer to decide whom he will choose to represent.

The proposal would add a new, vague, and expansive list of prohibitions to Rule 8.4 in the ABA’s Model Rules of Professional Conduct governing “Misconduct.” The purpose of the “Misconduct” rule is supposedly to achieve the objective of “Maintaining the Integrity of the Profession,” but this new proposal is all about social engineering, having nothing at all to do with ethics.

The proposal would create a “new Rule 8.4(g) that would make it professional misconduct for a lawyer to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” High sounding words indeed — but words that, if adopted by state bar associations, would empower those who run state bar associations — largely establishment lawyers — to selectively discipline and even disbar individual lawyers whose values are traditional rather than progressive.

In justification for creating new favored classes, the proposed Comment blithely asserts: “Conduct that violates paragraph (g) undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal.” Remarkably, the Committee found only one of the 11 itemized preferred classes — “socioeconomic” — to be even worth debating. As for the other 10 categories, the Committee simply presumed that no one could possibly object, for they are supposedly based on the “fundamental principle” of equality.

But it has long been recognized that the equality principle that applies to race does not apply to other types of classifications, even including sex. If there can be men’s and women’s basketball, volleyball, and track teams, why can there not be law firms which limit their practice to only wives or only husbands in family law matters? Why should such firms be outlawed because they make a distinction between clients on the basis of their “marital status”? What about a person’s “sexual orientation”? Or their “gender identity”? Neither of these latter two terms is objectively determinable or even objectively observable. Rather, they are completely subjective, dependent solely on a person’s self-perception. Surely lawyers — of all people — ought to know better than to concoct such a vague and standardless rule.

The U.S. Supreme Court has just ruled again that even race distinctions are not a per se violation of the equality principle when used by numerous colleges and universities in recruitment of faculty and students. If a law firm cannot be denied the right to adopt a discriminatory hiring policy to achieve a desired diversity of the 11 categories within a particular law firm, as the ABA rule allows, why should another law firm be denied the right to adopt a hiring policy to achieve a desired unity within its law firm? Must all law firms look alike? What is wrong with diversity among firms? And why should a law firm with an international practice be barred from seeking to expand by hiring lawyers of a certain national origin or ethnicity to enhance its ability to better serve clients of similar origin or ethnicity?

Religion, likewise, is wholly unlike race. Statutes accommodating religious conscience abound at both the state and federal level. Law schools with an overtly religious mission, including the hiring, faculty, and admission of students, enjoy ABA accreditation. Nationwide, lawyers and law firms hold themselves out to the public as Christians, letting the community know that they are dedicated to practicing law in accordance with ethical rules of their personal faith. Why should such law firms be barred from hiring lawyers which share the same religious convictions? Indeed, the Holy Scriptures counsel believers not to become “unequally yoked” with nonbelievers. 2 Corinthians 6:14. Are Christian lawyers to be barred by ethics rules from obeying Biblical statutes? Why should lawyers not be free to hire and fire staff on the basis of fidelity to their shared moral code? In truth, doesn’t everyone make distinctions based upon their personal moral code? Why should a lawyer be penalized if he candidly advises potential clients what that code is? Would not prospective clients be better served by such candor and transparency?