Brendan Eich & Chauncy Childs

    1. Why I’m not telling you what I think
    2. de Tocqueville is way cooler than Nostradamus
    3. WWSTD (What Would Sun Tzu Do)?
    4. Let’s all hector Howard Schultz now
    5. Justice versus Fairness
    6. Elane Photography doesn’t live to fight another day


Rod Dreher has been chronicling a gay rights witch hunt against, Chauncy Childs, a Mormon organic farmer who had the temerity both to express traditional views of marriage in social media and to try to open a new organic grocery in southeast Portland, Oregon. The latest installment (as of this writing) even includes footage of the witch trial (which just might be inauthentic).

This in the wake of the Brendan Eich ouster from Mozilla really is chilling. The formerly persecuted are becoming the persecutors. There are now secondary boycotts of people who merely came to the defense of Chauncy Childs’ freedom to do non-discriminatory business despite her views on marriage.

I’m nearing retirement. My clients are old enough to hold predominately conservative views. I have little personal stake in not “saying what I think.”

Yet twice I’ve relented and pulled draft blogs on this powderkeg issue in the last week, because others associated with me in some way could get hammered for not breaking with me (and breaking with me would bring its own bad economic consequences to them).

The question that begs for an answer is “what will it take to satisfy these people?” (Pardon the “Othering.”) How many times have we been assured that “all we want is X,” only to have that turn to X+1, ad infinitum? I’ve lost count, but the percentage seems to be 100. (Oops. My “ad infinitum” may have answered my own question by Freudian slip.)

I have an opinion on that topic, but I’m afraid you’re going to have to figure it out on your own.


Shortly after I wrote the first item, I encountered Mark T. Mitchell at Front Porch Republic offering what strikes me as prophetic extrapolations from de Tocqueville. First, he gives a couple of block quotes from current events, including Mozilla’s statement, that suggest equality must trample free speech. Then he comments, with the de Tocqueville quotes embedded:

The key concept in both quotes is “equality.” Equality is the chief political and social value of our time. It is the conceptual lens by which most people see the moral and political world. If you don’t believe me consider the difficulty of championing hierarchy. Or running on the “I love aristocracy” platform. These would be seen by most as indicators of a serious social pathology. Our love of equality is not new or surprising; although, the extent and degree may be. Writing in the 1830’s, Alexis de Tocqueville noted that a great revolution was taking place. This revolution consisted of a seismic shift from social structures characterized by hierarchy (aristocracy) to social conditions characterized above all else by equality. Two observations from Tocqueville help bring our current situation into focus. First, he writes: “When inequality is the common law of a society, the strongest inequalities do not strike the eye; when everything is nearly on a level, the least of them wound it. That is why the desire for equality always becomes more insatiable as equality is greater.” Second: “I think that democratic peoples have a natural taste for freedom; left to themselves they seek it, they love it, and they will see themselves parted from it only with sorrow. But for equality they have an ardent, insatiable, eternal, invincible passion; they want equality in freedom, and, if they cannot get it, they still want it in slavery. They will tolerate poverty, enslavement, barbarism, but they will not tolerate aristocracy.”

“Hate speech” laws in Europe, enforced in ways that imply a right not to be offended even if you’re hypersensitive, may be connected to that, but I resist any explanation that suggests our having been surpassed in equality madness by the Europeans. If de Tocqueville is right, we may need a very resolute Supreme Court to defend free speech over the egalitarian dogma.

(And my own skepticism about Citizens United and it’s spiritual kin could be a form of “equality trumps free speech” unless the premise that political money is political speech is flawed.)


In a pluralistic society, we need to learn how to communicate with the people whose beliefs we abhor, even if only for pragmatic reasons, to avoid the kind of confusion that led to tragedy at Waco. When antagonists refuse to engage the logic behind views that they find repugnant opportunities for engagement are limited on both sides.

In The Art of War, Sun Tzu warned military commanders, ”When you surround the enemy always allow them an escape route. They must see that there is an alternative to death.” Demanding public self-criticism, or conversions-expressed-as-apologies doesn’t leave a way for enemies to coexist or retreat. By treating apologies as trivial concessions and objections as irrelevant, those ascendant may find that they turn their enemies into David Koreshes and Thomas Mores.

(Leah Libresco, Mozilla and The Art of Culture War)


 Imagine a public campaign, which has in fact been championed by the National Organization for Marriage, to “Dump Starbucks” because of its stand in favor of gay marriage. But instead of the flop the anti-Starbucks campaign has been, suppose that the Board decided to fire CEO Howard Schultz as a way to appease opponents. Would Lambda Legal observe that this was simply “marketplace forces at work, influenced by the marketplace of ideas”? Would the Human Rights Campaign laud the new “authentic leadership” produced when “market forces took over”? We know the answers. There was no neo-Hayekian outburst when marketplace forces went to work in support of Chick-Fil-A, which refused to recant its corporate donations to anti-gay causes. There was no celebration of Adam Smith when Phil Robertson was promptly restored to his place in A&E’s Duck Dynasty despite his remarks lumping together “homosexuals, drunks, and terrorists.”

(Dale Carpenter at the Volokh Conspiracy) I briefly considered dumping Starbucks, but then thought better of it as, apparently, did most others who heard of the notion.


My son, you live in an age and a country where the adolescent cry of “that’s not fair” has been adopted by adults and enshrined as the central virtue of democracy. Such people seem to think that justice and fairness are synonymous. They are not. The spoiled child who demands that he and all his siblings get exactly the same size slice of pie seeks fairness; the mature and virtuous adult who wants to see all people treated in a proper and fitting manner seeks justice.

(Louis Markos, Advice to My Son 26: Justice versus Fairness)


I report with some sadness that the Supreme Court has declined to take the Elane Photography case from New Mexico. I’m pretty sure I predicted that Elane would win. I’m not so sure I confidently predicted that the court would take the case.

This case did a grave injustice, compelling artistic expression (well, fining refusal of insincere artistic expression) and from what I could tell was the ideal case to take up the issue. The New Mexico Court’s reasoning was brutally frank and chilling: you give up your free expression rights when you open a business, in essence. I believe they were dead wrong. Maybe SCOTUS is waiting for a decision that isn’t such self-parody.

Jordan Lawrence is technically correct, though:

It is important to note that the Supreme Court did not “uphold” the repressive decision of the New Mexico Supreme Court but merely decided not to hear the case. We don’t know why, but this is not an affirmance of the lower court opinion. The high court’s decision today sets no legal precedent. There are other cases now in the pipeline and probably more to follow that will likely reach the Supreme Court. We had strong amicus support in this case from Professor Eugene Volokh of UCLA and from the Cato Institute, which means the important First Amendment issues in this case will likely come before the Supreme Court again.

Today’s actions by the Supreme Court may unfortunately embolden some to expand their efforts to punish and humiliate publicly those who believe marriage is defined only as one man and one woman. The zealous followers of this ascendant orthodoxy supporting same-sex marriage are falling into the same error that many have stumbled into before them—when you gain power somewhere, punish the “heretics” and hound them to the outskirts of society.

No, that’s not prophetic. The statement was issued Monday, methinks.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.