This is a situation that arises in many contexts. People want something--a benefit, a title, a privilege--and they are told they cannot have it. Exclusion always brings pain.
If you don't believe me, then ask Sen. John Cornyn (R-TX), ranking Republican on the Senate Judiciary Committee. Elena Kagan's testimony Wednesday that she had done her best to make the military welcome, within the confines of Harvard's anti-discrimination policy, for him made her sin worse, not better.
"The sole result and impact" of the policy, Cornyn said, "was to stigmatize the United States military on campus. ... If the policy had no impact on recruiting at Harvard Law School, then what was the purpose if not to stigmatize the military?"
Witnesses at hearings on Thursday who opposed Kagan's nomination agreed. Capt. Flagg Youngblood, who helped lobby for the Solomon Amendment requiring universities to give equal access to students, told the committee to "imagine Dean Kagan owned a lunch counter and she said to the military, 'Sure, you're welcome here, do you mind coming in through the back?'" Peter B. Hegseth, an Iraq veteran and executive director of Vets for Freedom, said she had "treated military recruiters like second-class citizens." Tom Moe, a retired Air Force Colonel, used precisely the same words: she "treated military recruiters as second-class citizens." Sen. Jeff Sessions, ranking Republican on the committee, agreed. "Do you feel that that policy sent a message of some kind to veterans and the recruiters?" he asked.
Republicans' anti-Kagan legal witnesses made almost no attempt to challenge her legal credentials or question her testimony on legal issues. In any case, they were severely outgunned by the pro-Kagan legal witnesses--including a former Bush head of the Office of Legal Counsel, Jack Goldsmith, and a former Bush solicitor general, Gregory Garre.
The military-recruiting dispute is so far the single potentially serious reason that Republicans have offered for opposing Kagan. But witnesses who actually were at Harvard report her as showing enormous solicitude both for veterans and for students who wanted to serve. So they have had to fall back on the contention that, because she showed moral disapproval of "don't ask, don't tell," Kagan's actions stigmatized the military and (in Sessions's words) "created an unhealthy atmosphere" for the military on campus.
She stigmatized, excluded, treated the military as less than equal.
She hurt their feelings.
In other words, we are back to the empathy standard. As Dahlia Lithwick has pointed out, conservative justices are now beginning to fashion a jurisprudence in which the courts must safeguard the tender feelings of those who wish to discriminate, because they may be criticized by those who disagree. Now the minority members of the Judiciary Committee are demanding that we feel their pain.