I’m not going to give in to the temptation to repeat myself, at least not extensively. Instead, I’m going to assume that you’ve not only read but recall what I’ve had to say (it hasn’t been so long ago, after all!) here, here, and here about the inexplicable inconsistency of those who (well, a little repetition never hurt anyone)
believe that preference given to religion produces strife but that preferences given on the basis of race or ethnicity do not. Or perhaps why they believe that religious strife is bad and should be avoided while racial strife isn’t bad and should be encouraged. [From the middle “here” linked above.]
That echoes what I had written earlier (the first “here” link):
Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear “the risk” of “potential” divisiveness in what they see as religious preferences but not the actual divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference….
One of those of like mind off the bench (so far), a leading light of the liberal professoriat, is Prof. Jack Balkin of the Yale Law School and Balkinization, who has just praised Justice O’Connor’s apparent acceptance of his theory of “equal citizenship.” Quoting Justice Oliver Wendell Holmes, Jr., Balkin observes that our Constitution was “made for people of fundamentally differing views.” In Justice O’Connor’s opinion (as in his own), Balkin writes, “the key question” is
not whose values were right. It was how to preserve a deeper value in our constitutional tradition: equal citizenship. In a democracy, people may fight in the public square about the values government should uphold. But government must always treat its citizens as equal participants; it cannot favor one set over another because of their religious beliefs.
….
Many people viewed Justice O’Connor as a fact- sensitive compromiser who lacked deep convictions. Her views on religion belie this reputation. She operated from a deep, powerful, and consistent principle: the principle of equal citizenship. It was simply a principle that others did not fully recognize or honor.
Indeed. And among those who do not fully recognize or honor that principle, it seems to me, is everyone who believes that government can ” favor one set [of people] over another because of their” race or ethnicity.
That group, unfortunately, includes both Justice O’Connor and Professor Balkin, who, like Justice Breyer and friends, never explain why the Constitituiton bars religious favoritism but allows racial favoritism.
One possible explanation for this inconsistency, might be that, in order to maximize conflict and improve the prospects for dictatorship, the opposing sides must have on uniforms that they cannot slip out of. Religion is a uniform that can be taken off, and religious ideas can be restated in a conciliatory way. These features are very inconvenient, if one’s objective is to foment an intensifying intercommunal conflict, and such as would allow for despotism in countries which have, so far, been the most recalcitrant to official discretion. There is a winnowing for ever more impassioned power seeking as one moves closer towards the top of the political hierarchy. Federal judges are not the least susceptible, but commonly among the most enthusiastic, for the power which would allow fantasy theories to be enacted.