Rauch Among the Mormons

[Cross-posted to By Common Consent]

Jonathan Rauch’s Cross Purposes: Christianity's Broken Bargain with Democracy, the latest book by the longtime policy journalist and public thinker, argues three things:

--first, that throughout American history Christian churches have played an essential role in enabling our liberal democracy to properly function;

--second, that America’s Christian churches (mostly, though not exclusively, Protestant ones) have of late abandoned this role, and by so doing have contributed to the breakdown of liberal and democratic rules and norms in American life;

--and third, that the Church of Jesus Christ of Latter-day Saints has continued to model exactly the sort of role which historically American Christian churches had once played, and that therefore, the more the rest of American Christianity can learn from and perhaps even emulate the Mormons–very specifically, the room which he believes LDS doctrines and practices make for a pluralistic civic theology–the healthier America’s democratic culture and institutions will be. 

Given the praise contained in that third point–and given the philosophically liberal presumptions which underlie it–it’s not surprising that Rauch and his book have received a positive, bordering on enthusiastic, reception among intellectually-inclined mainstream American Mormons, while a small philosophically (as opposed to merely politically) conservative minority have viewed Rauch’s arguments far more suspiciously. Who is right? Assessing that requires considering Rauch’s claims in somewhat more detail.

Rauch is well-known as an advocate of classical liberalism and political moderation; indeed, a large part of his reputation as a writer has been built on the fact that he is both an unapologetic atheist and a gay activist, yet neither reasons nor votes the way most Americans would stereotypically assume a gay atheist would. Throughout his career, Rauch has presented himself as a consummate pragmatist, always asking careful questions and eschewing any kind of controlling ideology. Of course, as with pragmatism generally, this kind of evidence-based, practical-minded worldview does tend to support a particular ideological position–namely, a classically liberal, utilitarian, and secular one, in the spirit of John Locke, Adam Smith, James Madison, Jeremy Bentham, and John Stuart Mill. Early in Cross Purposes, he describes his ideological preferences (though without calling them that) succinctly: “the modern tradition of freedom, toleration, minority rights, and the rule of law.” In support of such aims, he sees “three linked social systems” as essential: “liberal democracy to make political choices; market capitalism to make economic choices; and science and other forms of open critical exchange to make epistemic choices” (p. 12). He is and long has been a consistent defender of responsible, thoughtful, but nonetheless total individual choice, in matters of politics and economics and religion, unfettered by custom or community.

Still, he's no libertarian. He knows that there are things that he does not and perhaps cannot know, and thus needs reign in his drive for individual autonomy and trust at least to a certain degree in the slow, patient work of ideas and options through society and culture. It is that conservatism in his nature which has led him, a non-believer, to take seriously the historical role that Christianity has played in the development of the American democratic system that he prizes. In the book, he repents of his one-time intellectual over-reliance upon the separation of church and state when addressing social and political problems; he now views his youthful celebration of “apatheism”–the ideal of simply “not caring very much one way or another about religion”–as “superficial” (p. 5). Instead, he now believes “not just that secular liberalism and religious faith are instrumentally interdependent but that each is intrinsically reliant on the other to build a morally and epistemically complete and coherent account of the world” (p. 21).

In his view, since secularism and freedom of choice cannot fulfill the human need for belonging and meaning, and since the Christian religion cannot escape its inability to account for the physical laws and the moral horrors of the universe, what is necessary–and what he believes that “the United States has been generally good” at for most of its existence–is for both American Christianity and liberal democracy to do their part in holding up the walls of our civic home. Creating an environment wherein this balance can be maintained requires “that the Constitution be interpreted in a way which is consistent with the well-being of law-abiding faith communities, and that God’s work be interpreted in a way which is consistent with the well-being of democratic pluralism” (p. 33). The rule of liberalism in matters of politics and law must always accommodate religious exceptions, he affirms–but at the same time, the rule of Christian faith in society and culture must always give way to liberal protections and rights. This is a complicated balance, but it is one Rauch has confidence in, and one that he seeks to persuade his secular readers to be confident in as well.

Having laid his foundation, Rauch proceeds to build an argument that aligns with a good deal of other contemporary sociological research and political observation. First, that over the 20th century, mainline Protestant churches became less culturally distinct, losing their ability to mold their parishioners and implicitly direct them towards the virtuous role they had historically played in America’s civic order. And second, that Protestant churches which rejected the mainline’s compromise with secular liberalism gradually moved in an ever more partisan direction, adopting a paranoid and conspiratorial version of Christian teachings which Rauch refers to as “the Church of Fear.” This transformation led them to acquiesce to–and eventually triumphantly embrace–the vulgarity, immorality, and cruelty of Donald Trump’s paranoia and defensiveness as their perfect political avatar. And while I will not deny that my personal political judgments are a factor here, I would still insist that the passages where Rauch brings receipts, showing how thoroughly un-Christian it is to support Trump and the party he has built in his image, are really the best in the whole book. 

Rauch shows how evangelical (again, primarily Protestant) Christians have dismissed their previous insistence upon personal character in judging candidates, and in so doing ignored Trump’s criminality; how their gleeful identification with Trump as a cultural fighter has underscored how little faith they actually have in God’s providence; and how their embrace of what Rauch calls “sharp Christianity” has prevented them from articulating even a semblance of adherence to the Christian imperative to forgive and love, rather than fight and punish. It is, frankly, a damning indictment–and since he believes that those imperatives have been central to the develop of the civic culture within which American democracy developed, it is an indictment of Trump’s Christian supporters as un-American as well. All of which leads him to conclude:

[S]ecular liberalism and Christianity have separate purposes. They do not need to ally (and should not); but they do need to align, at least well enough so that democracy’s wheels don’t come off. . . . In that respect, we seculars are entitled to hold the church accountable to the democracy of which it is part. We are entitled to hold it accountable for the choices it makes. While the church’s relationship with God is its own business, secular Americans are justified in reminding our Christian friends that the Church of Fear is toxic for them and for us. We are not out of our lane to suggest that what Russell Moore calls 'confident Christianity'–one which 'constantly reminds us that this life is less important than the next [and] demonstrates something of what it means to forgive and serve one another'–needs repair for all our sakes. In short, we have standing to hope, perhaps even insist, that Christians get their act together (p. 89).

As I wrote at the beginning, Rauch believes American Mormonism provides a model of action that Christians could use a blueprint to repair themselves. But should we accept as accurate his overarching historical account of American civic pluralism? Should we accept as correct what he sees within the Church of Jesus Christ of Latter-day Saints as contributing to it? And if we do not accept one or both of these, does that mean the conservative critique of Rauch is correct? 

Let’s begin with what I assume to be the most obvious problem (at least for the likely readership of this essay; were I a Roman Catholic, Rauch’s Protestant-centric account of America’s civic culture would probably rankle even more). Any Mormon who is remotely familiar with our own history ought to be prompted to ask Rauch why his initial description of the American bargain between Christianity and democracy doesn't incorporate an explanation for the profoundly anti-pluralist attacks on Mormonism that defined its nineteenth-century development. After all, perhaps the single greatest argument that America’s liberal democracy was not, in fact, built within the liberal civic walls he describes was the official exclusion and persecution that violently drove the Church of Jesus Christ of Latter-day Saints out of the United States entirely. And this is not a parochial point; placing nineteenth-century anti-Mormonism alongside slavery and Know-Nothingism as clear signs that America’s Protestant Christian civic culture was heavily dependent upon racial, ethnic, religious, and gender exclusion is broadly accepted as a key component of any historically honest consideration of America’s civic identity.

Yet the only discussion of this defining example of religious oppression in American history which is present in Cross Purposes isn’t to be found Rauch’s description of the intellectual components of America’s liberal democratic culture, as it should be; rather, it appears as one of the motivating reasons why Mormons–on Rauch’s reading–are so supportive of that democratic culture: “the modern church’s...memory of persecution has bred sensitivity to the importance of religious freedom and pluralism” (p. 108). Contrary examples from Mormon history–like Brigham Young’s politically illiberal State of Deseret or the economically illiberal United Order of Enoch–receive no mention in the book. Joseph Smith’s Council of Fifty does get a mention, but even that rhetorical embrace of religious authoritarianism–however quickly abandoned–is instead presented entirely in terms a defense of freedom and religious choice, emphasizing how “Smith went so far as to...propose constitutional revisions requiring ‘the armies of the government’ to enforce ‘principles of liberty’ for all people, not just the Protestant majority” (p. 110). That Rauch passes over the complications of Smith’s not-always-coherent embrace of both religious authoritarianism and republican freedom, to say nothing of other explorations of very real authoritarian alternatives present throughout American history is, perhaps, predictable, but still unfortunate.

My point here is not to claim that LDS church members (like myself), or Americans generally, necessarily must have some secret, ambiguous authoritarianism historically buried in our belief system. (Not that the rise of Trump hasn’t led some historians of American religion to suggest exactly that.) Rather, it is to claim that Rauch’s understanding of America’s liberal democracy and its relationship to expressions of religious faith, both as a matter of history and a matter of theory, is simplistic, and it requires papering over many ideas and actions that cannot be neatly arranged into a straightforward argument against the terrible choices which Christian churches that have embraced Donald Trump’s person and agenda have made, however worthwhile such an argument may be. 

Rauch makes a good deal of the LDS doctrine of agency, and connects that doctrine (one which, under Rauch’s reading, stipulates that, as all of God’s children have the ability to make choices, the process of choice–if not necessarily the end result–must be respected and tolerated and negotiated with) to several passages in sermons and speeches of President Dallin H. Oaks: “Oaks argues for an alignment between God’s moral constitution and Madison’s political one. Speaking for the church, he sees patience, negotiation, and compromise...as social and spiritual ends unto themselves” (p. 96). Rauch’s discussion of Oaks’s ideas is thoughtful, and his connection of them to larger LDS perspectives on matters dear to Rauch’s heart (he describes the surprise passage of the “Utah Compromise” in 2015, which provided protection against housing and employment discrimination to Utah’s LGBTQ population, as “inspirational”–p. 100) is obviously sincere. But it is difficult to square his praise of Utah Governor Spencer Cox for apologizing to LGBTQ Utahns for his past offenses in 2016, with his silence regarding Cox’s vocal support for Donald Trump and opposition to the interests of trans individuals in 2024, or his quotation of polls from 2016 and 2020, showing comparatively low levels of support for Trump among LDS Republicans, while failing to note more recent polls which show that support for Trump increased among all Mormon demographics in 2024. To be sure, these snapshots are part of a complicated story. But a complicated story about LDS history and culture–one where our appreciation of personal agency and public spiritedness is deeply entwined with our own particular, prophet-idolizing Church of Fear–is not what Rauch wanted to tell. 

In some ways the critique of Rauch made by conservative–or “post-liberal”–Mormons is thus correct here. Ralph Hancock’s pointed challenge--“how can religion ‘align’ itself with liberalism...without at some level in or some way ‘supporting’ Rauch’s liberal (that is, atheistic and ‘scientific’) understanding of truth and of humanity?”–is a hard one for those desirous to accept Rauch’s conflation of being a good Mormon and being a good (that is, non-Trumpist) modern American to deal with, and his fierce dismissal of Rauch’s key theological claim about Mormonism–“his understanding of ‘agency’ is neither a remotely adequate phenomenology of human choice nor a serious rendering of LDS belief”–is undeniably true. Unfortunately, Hancock’s conservative rebuke of Rauch’s longed (and simplistic) for rapprochement between liberal principles and Christian churches in America is also, in it’s own way, superficial. Rauch’s summation of the message of Christianity as “Don’t be afraid. Imitate Jesus. Forgive each other,” is obviously incomplete, and designed to point out an easy alignment between Jesus and his hero James Madison. But it is a substantive message, nonetheless, one grounded in a deep conviction of and commitment to Jesus’s loving, sacrificial gift of grace. To claim, as Hancock does, that the characteristics of Christianity which Rauch correctly condemns many Christian churches for having abandoned in their partisan, paranoid embrace of Donald Trump--namely humility, forgiveness, and tolerance--are somehow actually insufficient to allow for a “substantial participation as Christians in public life” is pure nonsense (or at least, nonsensical assuming one accepts such giants of liberal Christianity from Dorothy Day to William Sloane Coffin to Fred Rogers to Eugene England as Christians, which I assume Hancock would, though perhaps only with large, grudging asterisks beside their names).

To be fair to Hancock, none of those Christian leaders had to explicitly confront what he considers to the primary challenge to maintaining a substantive Christian anthropology today: namely, gay marriage and other assorted LGBTQ issues. Rauch himself frequently underscores how difficult these concerns–or indeed, his own marriage to his gay partner–are for certain Christian believers, which is again what brings him back to the LDS church, and how he believes its chastening failure in the fight against same-sex marriage made it re-dedicate itself to its supposed inner liberalism: “After its Proposition 8 debacle in 2008, the Church of Jesus Christ of Latter-day Saints has foregrounded those elements of its faith which harmonize with America’s constitutional order” (p.120). Rauch believes, in short, that even Mormonism’s illiberal elements (which he does not theologically explore) point in the direction of a Christianity at peace with pluralism and negotiation. The LDS church changed regarding plural marriage and the priesthood ban on Blacks, after all, and yet it remains a substantive, in no sense “thin” church. So why shouldn’t the rest of Christianity follow its example, and make its way through a culture supportive of gay rights respectfully too? And it is this prospect which most horrifies conservative critics of Rauch’s vision of Mormonism–in Hancock’s words, the fear that “LDS church members have been insufficiently appreciative of the positive cultural and evangelical effects of the church’s alliance with Roman Catholics and others” in opposing gay marriage; the fear that the institutional church, in its drive to “participate in the fashioning of legislative compromises” over LGBTQ issues, will not fully attend to the “trade-offs of these compromises and their long-term effects”; and the fear that Mormons will take a little too seriously the idea of “peacemaking,” which comes “perilously close to endorsing not only the fundamental dignity of all God’s children, but even the ideological self-understanding of those with whom we find that we must compromise.” These are the sorts of terrors that will keep those who find the substance of their Christian faith mostly fully defined by few passages from Paul’s Letter to the Romans and a few pages from Spencer W. Kimball’s The Miracle of Forgiveness awake at night, that’s for certain.

Surprisingly to me, I find myself thinking that President Oaks’s words provide a better guide to the complexities of maintaining a binding Christian faith in the midst of a world of individual choice, as well as a better guide to the doctrinal imperatives behind such supposedly banal principles as showing respect to and non-violent acceptance of those whom one disagrees with, than do either Rauch or his critics. Rauch celebrates Oaks’s comments from the University of Virginia in 2021, “Going Forward with Religious Freedom and Non-Discrimination,” but that speech leaves aside explicit consideration of LGBTQ issues, mentioning them only in passing, preferring to avoid any explicit reference to doctrines or ideas, and instead endorsing the view of a colleague that practical, informal, non-rule-based trade-offs often work well in addressing questions about compromise where “abstract principles sometimes cannot.” Hancock describes Oaks’s General Conference sermon “Balancing Truth and Tolerance” as a “classic address,” highlighting its martial language “We are cast as combatants in the war between truth and error. There is no middle ground.” However, he seems to fail to fully appreciate the sermon’s very next sentence: “We must stand up for truth, even while we practice tolerance and respect for beliefs and ideas different from our own and for the people who hold them” (italics added). The post-liberal rejection of Rauch’s version of Mormonism appears to insist upon a supposed distinction between respect and tolerance, between people and the beliefs they hold--Hancock in fact goes so far as to state that it simply isn’t possible for religious believers to function honestly in an environment of democratic compromise while holding to a doctrinal understanding that their opponents are “profoundly and disastrously wrong.” Yet that admittedly hard, deeply Christian thing is pretty much exactly what Oaks is calling the Mormon faithful to do. 

Rauch is too much of a secular liberal, too committed to open inquiry, to automatically assume that any one view is “profoundly and disastrously wrong.” In contrast to the paranoia of the post-liberals, Rauch’s view of Christianity–even that Christianity which he believes has been horribly twisted into an advocacy for authoritarianism–is neither dismissive nor domineering; on the contrary, he holds up the minority position, what he calls the “exilic mindset,” as something profoundly honorable (p. 135). Like Oaks, Rauch understands the virtue of those see the world in accordance with a different truth than he. (In his General Conference address, Oaks insisted that, even when believing Mormons enjoy a majority position in a community, “they should always be sensitive to the views of the minority,” something that those members of the LDS church who have become convinced that they, and their conservative Christian allies, stand alone, defending Western Civilization, against the woke and LGBTQ hordes, perhaps ought to be reminded of.) So while Rauch’s articulation of that virtue is far from philosophically complete, he has nonetheless perceived something about kindness and respect, compromise and forgiveness, something that too many Christians in America have forgotten. If this gay atheist has found a way to use Mormonism–or at least one small, perhaps insufficiently developed part of it–to call those Christians (including some members of our own tribe) back to those principles, we owe him our thanks, and ought to listen to him as well.

On Substance and Signaling, in Trumpland, Topeka, and Beyond

[This is an extensively rewritten version of an essay I wrote for Kansas newspapers last Sunday.]

In a recent substack post, my old friend Damon Linker made an obvious, but still important, observation:

One thing I think I and many others got wrong during the first Trump administration was to spend far too much time allowing ourselves to be triggered by things the president was saying—in his social media feed, at rallies, and in press conferences….[T]here’s a reason why journalists…began to joke about the importance of taking Trump seriously but not literally. That’s because he frequently communicated in a very different way than presidents usually have, often speaking from anger and in an off-the-cuff and ill-informed way. In many cases, his primary goal was to trigger the libs rather than clarify what his administration would be doing in the near future. That made his comments a distraction from what his administration was actually doing or aspiring to do.

Trump is, in many ways, a unique case (though it seems likely that such won’t be the case in the future, unfortunately). Generally speaking, our democratic political culture, in terms of how the public and the mass media internalize and reflect the ways in which representatives--both those in office and those hoping to be elected to such--seek votes and articulate priorities, has organically come to recognize that some statements from politicians are “mere” signaling, whereas others are “actually” substantive.

I put those qualifiers in quotation marks because, among the many other democratic ills which Trump’s influence on our political culture over the past decade has introduced, the recognition of even basic value distinctions like those—specifically, the idea that signaling a position to one’s political allies is, well, just that: a matter of positioning, rather than a matter of substantively working towards an actual, achievable solution--is harder than ever. Still, the assumption that some statements made by politicians need to be taken literally, even if they aren’t serious ideas, remains a hard concept to many voters to accept without resistance, because it runs directly against our inherited experience, going back through the whole history of America’s struggles to make mass democracy work, regarding what responsible government even means.

This may seem like I’m dressing up a mundane reality of democratic politics into something more weighty than it deserves to be. Because all politicians lie, right? So who cares that the lies of Trump, and an unfortunately large number of those who have followed his example, seem categorically different? Elected representatives spending their time on meaningless bills or resolutions that show their support for causes promoted by major interest groups or another donors, rather than getting down to the business of building actually substantive legislation—isn’t that just to be expected?

Maybe. But still, I care in particular about these sorts of lies, because they help to make the distinctions upon which much of the public’s ability to connect to their own elected representatives depend upon even harder, necessitating both 1) changes in the way the media does its work, such as Damon describes in his above-linked post, and 2) even more work on the part of those who the substance of legislation affects more directly.

As an example, consider the ongoing arguments over medical support for individuals who identify as transgender, since these debates are particularly rife with serious concerns that are based on matters that are not, in fact, literally true. To put it another way, these are our elected leaders taking actions that some might justify as “merely” signaling serious intent, even though there is little or no literal substance “actually” behind their intentions.

Kansas Senate President Ty Masterson recently affirmed that, with the Republican legislative majority even stronger after the 2024 elections, the leadership will bring back the push to ban, among other types of gender-affirming care, transgender surgeries sought by those Kansans who are under 18 years old. The last effort to do so ended with a veto from Governor Laura Kelly and a veto-override attempt which failed by only two votes. It’s reasonable, now that they have additional votes on their side, that the Republicans would try again. Why? Because the significance of the signal doing so would send, a signal of their “seriousness” about the threat of young people being pushed into receiving surgeries when they’re too young to know whether it’s what is best for them, hasn’t changed.

Of course, the literal reality of the situation, the actual substance of the subject of the proposed legislation, hasn’t changed either. (Note: I recognize that there are other gender-affirming concerns tied up with this, regarding the availability of puberty blockers and other medications to minors, but since Masterson himself led with the extreme issue of transitional surgeries, I’m comfortable treating that as a separate issue.)

I know many legislators, and I sympathize with how difficult their job can be, particularly those on the state and municipal level. On the one hand, they are closer to their constituents, and can more directly hear and respond to many diverse local appeals. But on the other hand, their funding, the parties which structure most of their ability to reach out to voters (and thus both do good work as well as protect their jobs), so profoundly entwined with America’s nationalized media environment, and with major interest groups and organizations that usually care little for specific local budget or policy matters, and instead are focused on creating signals that serve primarily to rile up or placate key donors and constituencies across the country. I can understand a politician coming to the reasonable conclusion that have to play the signaling game, if only to make sure they have the opportunity to also focus on the difficult, substantive matters that may actually affect those whom they represent most.

Now that’s not to say that there aren’t members of the Republican super-majority in Topeka who, for a variety of reasons, may well be sincerely concerned—maybe even horrified—by the prospect of someone under the age of 18 receiving gender modification surgery, and see banning such as a necessary action in the name of public health or morality. I’m sure more than a few fit that description. But most of them, I suspect, are actually well-read enough to recognize that they are crusading symbolically against an almost non-existent concern.

Here is where the literal substance of the matter gets serious. There’s no definitive evidence of any Kansas medical center ever performing complete gender transition surgery on a minor, and nationally the numbers for such surgeries, according to data reported by the American Medical Association, are incredibly low: out of all gender-affirming surgeries in the United States in recent years, perhaps 2 out of every 100,000 were performed on a person between the ages of 15 and 17, and 1 out of 1,000,000 were performed on a person between the ages of 13 and 15. Beneath that age, the number is zero. So, as I wrote, an almost non-existent concern.

(Another note, for the record: after an earlier version of this piece was published in Kansas newspapers, I was contacted by a concerned individual who insisted that my information was wrong; that gender re-assignment surgeries have in fact been performed on Kansans under the age of 18. The data which this individual relied upon had been collected by Do No Harm, an organization devoted to “protecting health care from the disastrous consequences of identity politics.” Their reported information on Kansas lists a total 22 “surgery patients”(though their breakdown of hospitals actually record a total of 25; I’m unsure why three are excluded); they obtained that information by looking at insurance records, focusing on claims that involved procedure codes which are used for “confirmed surgical gender transition procedures,” though they allow that those procedure codes could have been used for “surgeries related to intersex conditions” or “congenital conditions or other non-gender transition-related reasons.” I appreciate the additional information, but 1) since I don’t see any breakdown in the ages of the minors who supposedly received these surgeries, unlike the information from the AMA, and 2) since there is apparently no way to effectively distinguish between corrective and elective surgeries among these numbers, to say nothing of there being to no way to capture the individual complexities and differences present in any of these instances, and 3) since a total number of 22, or even 25, surgeries performed in a state with a total of nearly 706,000 people under the age of 18, is a number so much smaller than even the national number, that I can’t see how sticking with my judgment of this proposal being an act of signaling in regards to an essentially non-existent phenomenon can be faulted.)   

To return to my main point: when Senator Masterson says that the Republican super-majority are going to do something, we need to take him seriously. There’s a serious message they (the Republican leadership, certainly, and presumably at least some other members of the caucus) want to send regarding the disapproval the Republican majority feels toward “transgender ideology,” and connecting it to the issue of minors receiving gender-affirming surgery is a major part of the signal they intend to send. But is there an actual, literal, substantive basis for them spending time on sending this message? The answer there is, on my review of the data, no.

This pattern—when the data and the message don’t match--holds for many other issues as well. The number of transgender athletes seeking to play sports competitively in the category of their chosen gender is tiny, yet everyone seems to have a story about some transgender woman with an unfair advantage at their daughter’s high school. It’s the same for illegal immigrants, who are far more law-abiding than the rest of the population, yet every story about an undocumented resident who commits a crime will be shared over and over and over again.

On a certain level, one must simply accept this as a political reality, one that the type of lies and misinformation which our President-elect has specialized in, is only making more complicated. It is true that most people, lacking both the time and inclination to become experts regarding any given matter, depend upon—and make decisions upon—the conveying of key signals, whether involving law or morality or anything else. This is something that interest groups have long known and made use of—and which too many politicians have come to rely upon in preference to the unglamorous, necessary work of finding substantive compromises on actual, literal concerns. As for those who do have expert information on what is literally happening—often because they actually are one of the people being symbolically discussed (a person with sexual dysphoria, perhaps, or a Dreamer, or more)—the battle to call attention to the actual data, and introduce substantive arguments to push back against the signally, is never-ending. But also necessary, all the same, and never more so than today.

What the Constitution Says About Parents, Public Schools, and Students' Gender, and What it Doesn't (Yet)

[An expanded version of a piece which appeared in the Wichita Eagle and elsewhere on February 27, 2024.]

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler--arguably the best-known journalist in Wichita, Kansas’s largest city-- picked a fight with Kansas’s Attorney General Kris Kobach--arguably the best-known politician in the whole state--over essentially this exact problem, and Kobach--who, despite his protestations, has never been retiring when it comes to defending his beliefs--picked back. Both of them drag multiple ancillary issues into their argument, but let’s focus on the legal heart of their dispute, and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies which allegedly require teachers of students who identify as trans or non-binary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents' right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights. (In response, two school districts publicly changed their policies, while four others continued to defend them.)

With the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: while a bill was proposed in the Kansas legislature last year that would have extended parental rights in this exact context, it lacked the support to make it out of committee, and as a result, these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: what is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century (and most of which rested upon substantive definitions of "privacy" as central to personal "liberty," a claim which Dodd v. Jackson Women's Health Organization, the anti-Roe v. Wade decision, may have unintentionally (?) declared invalid, interestingly enough) have established that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns, and privacy. Moreover, other cases insist that parents have to demonstrate a harm which “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies which had been locally and legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point—a 2022 federal district court decision which forbade Geary County’s USD 475 from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’s Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

So ultimately, what is being fought about is unsettled law. I suspect that Kobach, ultimately, will end up being found correct, or at least mostly correct, in his interpretation by the Supreme Court--partly because of the contemporary dominance socially conservative justices enjoy on the Court, but also partly because some of these policies can be legitimately interpreted as requiring public school teachers to purposefully hide information from or even lie to parents, and the case law supporting parental rights, stretching back long before the current make-up of the Supreme Court, will make that possibility very difficult to uphold. But in any case, for now Kobach's his letter reflects broad cultural assumptions rather than controlling constitutional principles. So round one, I think, has goes to Lefler.

Songs of '83 Special: "Puttin' on the Ritz"

Before I call this year to an end, just one more hit. My obvious and unstated foundation throughout this whole year is that I love the popular music of 1983. Maybe not as much as the swampy mix of hard rock and country and punk and more that to this day kick around in my memories of 1978...but still, the stuff that came over the airwaves the year I turned 15-years-old, the stuff which carried with it (as I only slowly learned later) the results of years of club experimentation and technological change and urban evolution? I think it was mostly brilliant, and I'm entirely happy to defend it all. Or, well, nearly all of it. Some of it wasn't that good. And some of it, though clever enough in its time, in retrospect is kind of creepy. And thus we come, on this last day of the year, to the long-promised, skipped-over, third German-language artist who hit it big on American radio in 1983: Taco, with his funky, synth-pop version of the Irving Berlin composition and the Fred Astaire classic, "Puttin' on the Ritz."

Why'd I skip over this song, which was cut in 1982 and become a one-hit wonder on American radio 40 years ago back in June? Because, as anyone who remembers knows, and as anyone who is patient enough to search through the internet can easily find out, the makers of the original video thought that a clever way to connect with a musical world that was, at the time, more than 50 years in the past (and today is nearly a century gone), was to feature tap dancers in blackface. It's not racist; it's ironic! It's a snappy, winking, faux-controversial homage! It's "European"! Yeah, no thanks. I suppose one could argue that, in his way, Taco's recording and video unintentionally serves as a synecdoche for the huge mess of multi-racial, gender-bending, cosmopolitan, and technological trends and controversies which 1983 pop radio encapsulated...but I'm not going to attempt that myself. Instead, I will sign off from this wonderful year-long exercise by thanking all 14 of you for following along, and share with you Taco performing his hit (appropriately lip-synched!) on a German New Year's Eve television special, 40 years ago tonight, complete with immensely bored showgirls. Enjoy everyone, and keep on listening!

Songs of '83: "Jingle Bell Rock"

Merry Christmas, everyone! Guess who released a special single for the Christmas season 40 years ago? Daryl Hall and John Oates! And guess what radio juggernaut, simply because they didn't quite fit into my narrative and didn't release an album in 1983 (though a couple of singles off 1982's H2O, their single biggest selling album of all time, were released during the year), have I not mentioned thus far in this year-long series? The same! So today, as a gift to you, I make up for that elision, twice over: enjoy the Daryl-on-vocals version of their cover of the Christmas classic, and the John-on-vocals version as well.

Songs of '83: "Joanna"

It would be a lie to claim that, as a White teen-age Mormon in Spokane, Washington in 1983, my ear glued to the radio, I was somehow also deeply familiar with R&B and soul. I wasn't. But American radio in 1983 wasn't yet quite as programmed and balkanized as it would later become; racial divides were many and, in retrospect, pretty obvious, but nonetheless, for every radio programmer concerned about how the Blackness of post-disco artists would play outside of the big cities, there was a Michael Jackson, a Prince, a Donna Summer, or a Lionel Richie to prove them wrong. So the fact is, I did know a little--enough to have insisted on monopolizing the television set for three hours one evening to watch the entirety of Motown Returns to the Apollo, among other things. One of those other things being Kool & the Gang, a great R&B group who were, by the early 1980s, coming to the end of the second wave of radio popularity in their, by then, 20-year-old history. "Joanna" wasn't their biggest hit ever--the ubiquitous "Celebration" holds that title--but it just might be their finest ballad, and I loved it.

Songs of '83: "99 Luftballons"

Of the three pop hits by German-language artists that American radio-listeners heard in 1983, Nena's "99 Luftballons" is, without doubt, the greatest, both in terms of chart success and overall musicality. Peter Schilling's "Major Tom" was clever and the source of a decent amount of nostalgia, and the one German-language hit yet to be revealed has its own--more controversial--nostalgic whimsy about it as well. But "99 Luftballons"? That's a solid (if synth-heavy) rock and roll tune, one of the essential tracks of Neue Deutsche Welle, the label created by Dutch and German music promoters in the late 1970s and early 1980s to talk about--well, pretty much what I've been talking about all year: namely, the post-punk and post-disco club sounds that knocked around Europe and slowly made their way on to pop radio, only in this case, the West German Cold War zeitgeist was pretty essential as well.

"99 Luftballons" is unusual for a European song picked up by American markets, in that it by-passed the UK entirely; Nena--which is the stage name of their lead singer as well as the name of the band--didn't release the song there until 1984, after it had gotten huge airplay across Europe and Japan. American and English promoters wanted an English version of the song, and that was released as part of whole album built around the hit song, but different band members (including Nena herself) never liked the not-especially-clever translation which they sang. Far better was the original German version from March 1983, which by December had been grabbed and played by enough big-city radio stations across the USA that Epic picked it up and officially released it stateside, 40 years ago this week. It shot up the charts, eventually reading #2 on the Billboard charts by early 1984--around the time British radio listeners heard the English-language version for the first time. A strange journey for a savagely bitter--but also weirdly romantic--song about American military generals accidentally destroying the world in a nuclear war after being freaked out by some balloons floating over the Berlin Wall (the line "Hielten sich für Captain Kirk"--"They all thought they were Captain Kirk" is, of course, the best bit of the whole song). But regardless: it rocks.

 And thirty-five years on, at least, back in 2018, it still did:

Songs of '83: "Karma Chameleon"

Culture Club, with their lead singer Boy George, were already a thoroughly familiar presence on American radio by this point of 1983. Their debut album, 1982's Kissing to Be Clever, managed to land four Top Ten hit on the Billboard charts during 1983 ("Do You Really Want to Hurt Me," "Time," "I'll Tumble 4 Ya," and "Church of the Poison Mind"). Boy George's ostentatious--and for the time, comparatively outrageous--androgyny made Culture Club the poster children, and a target, for every parent and pundit who insisted upon Making Their Views Known about this dangerous "new wave" of music escaping the clubs and poisoning American middle and high schools everywhere. (Years later, in his book The Closing of the American Mind, Allan Bloom negatively compared George's androgynous impact on popular culture to Mick Jagger's, suggesting that the former wouldn't last; given that the down-to-three-permanent-members Rolling Stones just released a new album, I suppose you could argue he was right?) 

One of the weird things about all this, in retrospect, is that Culture Club were a pretty conventional pop band, all things considered. Their reliance upon synths and other technological club beats was fairly minimal, and while they soaked up the New Romantic and post-glam rock vibe of acts like late 1970s David Bowie, they also loved American R&B and country music--they even had guitars, for heaven's sake (take that, Human League)! "Karma Chameleon," the lead single of their second album, Colour by Numbers, a goofy little tune about--appropriately enough--changeableness and adaptation, ended up being their single biggest hit in both the UK and America. 40 years ago today, it premiered on the Billboard charts--and this time, there was no Michael Jackson or The Police standing in its way, preventing from going all the way to Number One.

Songs of '83: "The Politics of Dancing"

I'm so happy this song made my list; it's one my favorite, perhaps my very favorite, ridiculous and awesome New Wave tune. The London band Re-Flex didn't have a very long life; they had some intriguing interactions early on with Thomas Dolby, Level 42, and other artists and bands that navigated the new world of 1980s pop better than they did, but hey, not every musical outfit is destined for greatness. One-hit-wonderness, though, which they achieved with this single that entered the Billboard charts 40 years ago today and went on to be a Top Twenty hit? And, of course, had a wonderful video that mixes roller-skating with a Cold War spy thriller? That's not a bad fate at all, says I.