Some excerpts:
“For conservatives the Commencements have become the occasion in which we sit, in courteous silence, as honors are bestowed on people we would be far from commending to the students or the public, to put the matter gently. To put it less gently we are asked to pay homage to people whose policies and teaching we would regard as morally destructive…When it comes to religion and prayers at public schools, the Supreme Court years ago conferred a virtual lever for students, and perhaps even faculty, to purge from the platform words and speakers they find repellent. One of the ironies of the season is that the recognition has not broken through that there may be a ‘right’ here that could be invoked by conservatives as well.”
“But as Justice Scalia pointed out in dissent in the Weisman case, the telling comparison, in coercing students, was marked by the cases in which the children of Jehovah’s Witnesses were compelled to salute to the American flag. In West Virginia School Board v. Barnette, there was real coercion: for failing to render the salute, the students could be expelled, and their parents put in jail for failing to have their children in school. And yet, with the Weisman case, ‘coercion’ could now be “psychological coercion”: a student could suffer embarrassment if she remained sitting or left the hall to avoid “complicity” in the prayer. She was ‘coerced’ if she were simply compelled by convention to stand or sit in silent acquiescence.”
“What Scalia had the wit to see was that the combining of these cases—Weisman and Barnette—produced a result that was devastating if anyone bothered to put the pieces together and recognize the weapon being forged now. For the ‘right’ articulated by the Court in the Barnette case was not confined to religion and prayers. Justice Robert Jackson framed the argument in a sweeping way: ‘If there is any fixed star in our constitutional constellation,’ wrote Jackson, ‘it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ The ‘right’ here was a right not to suffer the imposition of a “political orthodoxy,” not merely the imposition of a creed that runs counter to religious convictions. If we take these decisions seriously, conservative students need not have to sit in acquiescence at a public university as the institution confers honors on people who seek, say, to defend the ‘right’ to kill unborn children. The students might have a right now to purge from the program this imposition of a political orthodoxy they find deeply objectionable. The Court had fashioned one of those rare ‘rights,’ so exquisite that it extinguishes itself: The move to bar speakers from the podium is itself the imposition of a political orthodoxy, and those who oppose it would have ample grounds then for closing it down.”
UPDATE: Two responses to Prof. Arkes’s piece can be found here and here by Carl Scott and Peter Spiliakos respectively on National Review Online. Prof. Arkes responds to them here.