I’m old enough to remember the days when all right-thinking people demanded that Kim Davis, a Christian county clerk in Kentucky who opposed same-sex marriage, either issue gay marriage licenses as the Supreme Court required as a result of its Obergefell decision, or resign. I was one of those people. Though I agreed with Davis that the decision was morally wrong, I also believed — and do believe — that as a matter of rule of law, she was obligated to resign from her position if she could not in good conscience enforce the law of the land. And I wrote about it several times in this space — for example, in this piece, saying that as a staunch defender of religious liberty, “Free Kim Davis” (she was jailed because she refused either to resign or obey the law) this is not a hill for our side to die on. Back then, in 2015, polls should that three out of four Americans believed that a public official should either obey the law, or resign.

That was then. Now that the shoe is on the other foot, Alphonso Davis, head of the big LGBT lobby Human Rights Campaign, has taken to the op-ed page of The New York Times to proclaim that we don’t need no stinkin’ lawful public officials:

Davis writes, in part:

Far from state legislative outliers, these new laws are the latest in a series of unprecedented legislative assaults aimed at trans people that have swept state houses this year, officially making 2021 the worst year for anti-L.G.B.T.Q. legislation in recent history. With more than 20 new laws so far, the number is more than double what we saw in the last three years combined.

L.G.B.T.Q. Americans — and particularly transgender and nonbinary people — are not simply living in a state of emergency, we are living in many states of imminent danger. The usual calls to action aren’t enough against these threats; we are now firmly in the territory of needing those in positions of authority to actively defy these laws — especially those enforcement agencies and leaders tasked with implementing the unconstitutional and un-American assaults on the civil rights of millions of L.G.B.T.Q. people.

This is the same revolting moral blackmail that LGBT activists constantly use: give us what we want or you will have blood on your hands, bigots! The idea that if state and local officials don’t disobey laws meant to keep biological males out of women’s athletic competitions, the boys-who-think-they-are-girls will hurt themselves, is absurd. But who stands up to this kind of cheap blackmail? More:

Active resistance is needed from administrators within the education system who are tasked with enforcing discriminatory trans sports bans, which isolate and prevent trans students from playing sports on teams consistent with their gender identity. These laws — already enacted this year in Arkansas, Alabama, Tennessee, Mississippi, Montana and West Virginia, and executive orders signed in South Dakota — effectively exclude trans youth from sports activities, which takes a devastating toll on the social, physical and emotional health of trans students and further isolates them from their peers.

Democratically enacted laws mean nothing to Alphonso David and activists like him. The only people in the world who matter are LGBT people. Everybody else needs to shut up and give them what they demand.

In this insanely privileged rant, we hear the voice of the radicalized employees of major newspapers and publishing houses, who believe they have the right to refuse to work with people and material that offends their sensibility. These people — and those who answer Alphonso David’s call — would rather tear the entire system down than not get what they want right this very second. 

This is a clarifying moment. LGBT activists like David are no more respectful of democracy and the rule of law than Kim Davis was. The difference is that Davis stood virtually alone, and was despised by the elites. By contrast, the Human Rights Campaign grossed $48 million in the last available reporting period (2019), and its president was paid $570,000. These are the one percent. They don’t care what they have to do to your rights to get what they want.

And as much as I hate to say it, these shrieky little Stalinists might succeed. In a recent Substack newsletter, Richard Hanania observes that for all their anti-woke bluster, Republican politicians actually don’t have any idea what to do to fight it.

He makes a detailed case that wokeness emerged out of decades of federal government activism using civil rights law. If conservatives and conservative politicians want to actually do something to fight it instead of just whine about how unfair it all is, Hanania has a suggestion:

Low tax people have the Norquist pledge, and the Second Amendment crowd fights background checks, etc.

Yet the anti-woke seem unaware that the things they care about have much to do with policy. They treat every cultural outrage as an isolated event, as just another instance of elites deciding to be “woke,” without such decisions being connected to anything government has ever done.

Getting rid of disparate impact and narrowly defining what “hostile work environment” means or even eliminating the concept entirely will not change the culture overnight. Things have already gone too far, and it took about half a century to go from the color blind ideals most Americans thought they were signing up for with the Civil Rights Act to a world of “birthing parents” and “white fragility.”

Constantine converted to Christianity, which helped spread the religion across the Roman Empire. Yet the reign of Julian the Pagan couldn’t undo Christianization; just because government helped create or spread a cultural phenomenon does not mean that government can likewise rewind the tape to an earlier point in history. Dobbin points out that when the Reagan administration tried to roll back civil rights enforcement, the business community fought back, as many large corporations had come to be staffed by true believers.

The hope would be that, just as the original creation of concepts like “disparate impact” and “AAPI” had eventual consequences few would have imagined at the time, reversing past policies could likewise shape the culture in the long term.

The punchline of all this is that an anti-wokeness agenda would involve, at the very least,

1) Eliminating disparate impact, making the law require evidence of intentional discrimination.

2) Getting rid of the concept of hostile work environment, or defining it in extremely narrow and explicit terms, making sure that it does not restrict political or religious speech.

3) Repealing the executive orders that created and expanded affirmative action among government contractors and the federal workforce.

One reason to be optimistic is that much of this work can be done without having to pass laws, which is almost impossible to do on controversial issues in the current environment, but through the executive branch and the courts. Republican administrations have tried similar things in the past, though usually without making anti-wokeness a real priority.

In Reagan’s second term, repealing affirmative action requirements for contractors was apparently on the table, but the administration backed down in the face of congressional resistance (see also this). More recently, a Washington Post story reporting that the Trump Administration was thinking about undoing disparate impact was dated January 5, 2021 (yes, “January 5, 2021” as in the day before January 6, 2021). Politics is about priorities, and the Trump administration clearly cared little about this issue, despite the president’s voters being animated by concerns about PC.

More:

In other policy areas over which it had control, the Trump administration largely delivered for its supporters: tougher sanctions on Iran to please the war hawks, lower refugee caps for immigration restrictionists, and undoing Obama era gun regulations.

Yet the disparate impact issue was not even being considered until weeks before Trump left office. The Executive Order banning critical race theory training, similarly coming late in the administration, was only signed because Chris Rufo got on Tucker. Conservatives celebrated, without any of them seeming to notice that Trump could’ve literally signed an EO at any time in his presidency to end affirmative action within the federal government and among all government contractors, not just the most absurd form of “anti-racism training” that exists (ironically, during the 2016 primaries Jeb! bragged about ending affirmative action by EO while governor of Florida, though he was hated by the most strident anti-wokes in his party).

Taking apart disparate impact and repealing affirmative action executive orders should be litmus tests for Republican presidential candidates in the same way taxes and abortion are.

Why hasn’t this happened already? Probably because the payoff to fighting wokeness is more long term. People seek immediate gratification; you can change the tax rate or how many immigrants you let in immediately, while it’s hard to convince people to have a political fight today in the hopes of having an uncertain effect on culture years or even decades down the line. Moreover, it’s hard work to go to war with an entrenched bureaucracy that has the media completely on its side, especially if you haven’t explained to your voters why doing so is necessary. Nonetheless, I’m convinced there is no short-cut to changing the culture.

Read the whole thing. Seriously — it’s important. If our side doesn’t start fighting this stuff hard, we will get soft totalitarianism. We will get these pink police staters like Alphonso David demanding that their minions throughout administrative bureaucracies defy the law to enforce their priorities. These people do not give a rat’s rear end about respecting law or the rights of anybody who gets in their way. They are who they are. But what about us conservatives? Why do we sit back willing to accept performative (but essentially toothless) anti-wokeness from Trump, and nothing at all from other conservative lawmakers? Meanwhile, those who hate us, and who are well-funded by woke capitalist corporations (take a look at the Who’s Who of HRC’s corporate donors), and can take to the op-ed page of The New York Times and call for mass defiance of the law, out of contempt for us, their fellow Americans, who do not share their views.

I am living right now in a country, Hungary, whose conservative leader has openly said he wants to make Hungary an illiberal democracy. I will be returning at summer’s end to a country that is actually becoming an illiberal left-wing democracy. And the Republican Party doesn’t care. Neither do tens of millions of Republican voters who want Trump back, because he made them feel good, even as the shock troops of wokeness consolidated power within institutions.

UPDATE: I’ve been thinking about this overnight. Looked at from a sympathetic direction, Alphonso David is asking his followers in political and administrative positions to live not by lies — that is, to refuse to cooperate with what he believes is a grave injustice. Six years ago, I wrote that I believed that Kim Davis should also not live by lies — but that she should resign if she believed so strongly in not cooperating with evil. Even though I agreed with Davis morally, I knew that we couldn’t have a viable democracy if people reserved to themselves the right to pick and choose which laws to observe.

We see now with Alphonso David’s exhortation that at least some leaders on the Left are the same as Kim Davis. What the president of the Human Rights Campaign has done is call for an insurrection against democracy, on behalf of transgendered people. There will be no corporate blowback for HRC from this, because wokeness has captured the elites.

And truth to tell, I believe in the principle of civil disobedience. I think the Civil Rights protesters of the 1960s were right to do what they did to protest segregation. I believe Augustine was right to say that an unjust law is no law at all. If I believe that, then, on what grounds do I tell Alphonso David that he is wrong because he draws the line in a different place than I do?

Well, he is wrong because he draws the line in a different place than I do. The 1960s Civil Rights protesters, by their civil, nonviolent disobedience, stood against laws that denied the basic humanity of black Americans. A civil order that treats some people who live under it as second class, solely because of their race, is a corrupt civil order whose foundations come into question. Their civil disobedience magnified the crisis that was already present, and brought to the surface the deep contradiction of the American order. As a consequence, in law we resolved that contradiction.

The question here is this: do laws forbidding biological males who identify as females from playing on female sports teams fundamentally call into question the American system? Do laws forbidding physicians and parents from permanently altering the bodies of minors with hormones and surgeries, and altering their minds through therapies designed to convince them that their bodies are lying to them, and that they are of the opposite sex — are those laws so contrary to the American order that they must be defied in the name of a higher moral order?

If I’m honest, then hell yes, I would encourage physicians, medical personnel, school administrators, and others to defy laws that mandate cooperating with the evil of the Trans-Industrial Complex. I believe that we are dealing with something so fundamentally wrong, and so destructive of civilization, that one ought to refuse to comply with laws requiring submission to its ideology. As wrong as I think same-sex marriage is, transgenderism, which obliterates the sex binary, is in a whole different category. In that sense, I am no different from Alphonso David, except that I’m on the other side.

The truth is, the center cannot hold. Law has to be anchored in shared belief of a transcendent order, whether authored by divinity or existing in some ideal realm. Alphonso David and his side believe that the right of male athletes to compete against women, while posing as women, and the right of children to take hormones, bind their breasts, and tuck their penises, is so sacred that it is worth risking the American democratic order to force into reality. I do not. In fact, seeing the radicalism of the pro-trans side has made me, I realized clearly this morning, has inclined me to take up Alphonso-ism, but from the other side.

Like I said, the center is not going to hold. I remember back in the 1990s, when a massive controversy arose on the Right over a First Things symposium positing the end of democracy. From the lead essay of that symposium:

The proposition examined in the following articles is this: The government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of “things of their knowledge.” Not that judges necessarily claim greater knowledge; they simply claim, and exercise, the power to decide. The citizens of this democratic republic are deemed to lack the competence for self-government. The Supreme Court itself—notably in the Casey decision of 1992-has raised the alarm about the legitimacy of law in the present regime. Its proposed solution is that citizens should defer to the decisions of the Court. Our authors do not consent to that solution. The twelfth Chief Justice of the Supreme Court, Harlan Fiske Stone (1872-1946), expressed his anxiety: “While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint.” The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy.

As important as democracy is, the symposium addresses another question still more sobering. Law, as it is presently made by the judiciary, has declared its independence from morality. Indeed, as explained below, morality—especially traditional morality, and most especially morality associated with religion—has been declared legally suspect and a threat to the public order. Among the most elementary principles of Western Civilization is the truth that laws which violate the moral law are null and void and must in conscience be disobeyed. In the past and at present, this principle has been invoked, on both the right and the left, by those who are frequently viewed as extremists. It was, however, the principle invoked by the founders of this nation. It was the principle invoked by the antislavery movement and, more recently, by Martin Luther King, Jr. It is the principle invoked today by, among many others, Pope John Paul II.

In this connection, Professor Robert George of Princeton explores the significance of the encyclical Evangelium Vitae (The Gospel of Life). Addressing laws made also by our courts, the Pope declares, “Laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience. . . . Indeed such laws undermine the very nature of authority and result in shameful abuse.” We would only add to Professor George’s brilliant analysis that the footnotes to that section of Evangelium Vitae refer to the 1937 encyclical of Pius XI, Mit Brennender Sorge (With Burning Concern) and other papal statements condemning the crimes of Nazi Germany. America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be happening here.

As I recall, I ended up back then sharing the view that as long as we retain the right to change the system using legal democratic means, then we should continue to uphold the regime, and work patiently within it for that change. What would the alternative be?

Well, here we are twenty-five years later, and the power of the regime — not only the state, but corporations, schools, and the institutions of civil society — is even greater, and even more radical. I have no doubt at all but that this regime is eventually going to deploy technology, via a social credit system, to demonize dissent, command conformity, and crush Christians and any other refuseniks. The head of a $48 million organization, Human Rights Campaign, which depends heavily on donations from major corporations, would not have published what he did in The New York Times if he had the slightest doubt about whether or not his corporate patrons would abandon him. I think he has probably judged them accurately. The fix is in.

Let’s not fool ourselves, though — we on the Right, I mean. As Christopher Caldwell wrote in his devastating book last year, to get at the devil of racial segregation — and he asserts without reservation that it was indeed a devil — we cut down principles in constitutional law that protected Americans from progressives running amok. Caldwell:

Just half a decade into the civil rights revolution, America had something it had never had at the federal level, something the overwhelming majority of its citizens would never have approved: an explicit system of racial preference. Plainly the civil rights acts had wrought a change in the country’s constitutional culture. The innovations of the 1960s had given progressives control over the most important levers of government, control that would endure for as long as the public was afraid of being called racist.

Not just excluded and exploited Southern blacks but all aggrieved minorities now sought to press their claims under this new model of progressive governance. The civil rights model of executive orders, litigation, and court-ordered redress eventually became the basis for resolving every question pitting a newly emergent idea of fairness against old traditions: the persistence of different roles for men and women, the moral standing of homosexuality, the welcome that is due to immigrants, the consideration befitting wheelchair-bound people. Civil rights gradually turned into a license for government to do what the Constitution would not previously have permitted. It moved beyond the context of Jim Crow laws almost immediately, winning what its apostles saw as liberation after liberation.

The civil rights movement was a template. The new system for overthrowing the traditions that hindered black people became the model for overthrowing every tradition in American life, starting with the roles of men and women.

Here’s the core of his argument:

The goal of the civil rights laws, at least as they were understood by a sentimental public, was to short-circuit the sham democracies of the American South, to bring them into conformity with the Constitution. But it turned out to be harder than anticipated to distinguish between the South’s democracy and everybody else’s. If the spirit of the law was to humiliate Southern bigots, the letter of the law put the entire country—all its institutions— under the threat of lawsuits and prosecutions for discrimination.

Not just in law, but in culture too. More:

In the quarter-century after Reagan, conservatives lost every battle against the substance of political correctness. … Political correctness was not a joke after all. It was the most comprehensive ideological capture of institutional power in the history of the United States.

… This language of “-bashing” and “-phobia” and “bigotry” and “lies” was new. No longer was the irreconcilability of individuals’ and society’s sexual priorities a tragedy or a disagreement. Recast in the categories of civil rights law, it was a crime, a crime that was being committed against a whole class of people. The customs and traditions in the name of which it was being committed were mere alibis.

… Once social issues could be cast as battles over civil rights, Republicans would lose 100 percent of the time. The agenda of “diversity” advanced when its proponents won elections and when they lost them. Voters had not yet figured that out. As soon as they did, the old style of democratic politics would be dead.

He’s talking about Trump’s emergence. Trump failed. Can we produce someone who can succeed? More to the point, can anyone succeed against this evil without overturning the democratic constitutional order?

Alasdair MacIntyre’s words from forty years ago were prophetic:

It is always dangerous to draw too precise parallels between one historical period and another; and among the most misleading of such parallels are those which have been drawn between our own age in Europe and North America and the epoch in which the Roman empire declined into the Dark Ages.  Nonetheless certain parallels there are.  A crucial turning point in that earlier history occurred when men and women of good will turned aside from the task of shoring up the Roman imperium and ceased to identify the continuation of civility and moral community with the maintenance of that imperium.  What they set themselves to achieve instead–often not recognizing fully what they were doing–was the construction of new forms of community within which the moral life could be sustained so that both morality and civility might survive the coming ages of barbarism and darkness.  If my account of our moral condition, we ought also to conclude that for some time now we too have reached that turning point.  What matters at this stage is the construction of local forms of community within which civility and the intellectual and moral life can be sustained through the new dark ages which are already upon us.  And if the tradition of the virtues was able to survive the horrors of the last dark ages, we are not entirely without grounds for hope.  This time, however, the barbarians are not waiting beyond the frontiers; they have already been governing us for quite some time.  And it is our lack of consciousness of this that constitutes part of our predicament.  We are waiting not for a Godot, but for another–doubtless very different–St. Benedict.