Clearest of all is Justice Antonin Scalia’s concurrence in the judgment, joined by Justice Clarence Thomas. “It has come to this,” Scalia begins portentously. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”
The most quoted part of Sotomayor’s opinion is this: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This is a rejoinder to Chief Justice John Roberts’s assertion, in Parents Involved v. Seattle School Dist. No. 1 (2007), that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Roberts in turn rebutted Sotomayor in a separate concurrence to today’s decision, which we’re leaving out of our ranking by clarity.)
Robert’s statement was trivially true, which means that Sotomayor’s defies logic. Her argument amounts to an assertion that a ban on racial discrimination is a form of racial discrimination–that everyone is equal, but some are more equal than others. Also Orwellian is her claim that she wants “to speak openly and candidly on the subject of race.” Such an assertion is almost always disingenuous. After all, the way to speak openly and candidly is to speak openly and candidly. Declaring one’s intention to do so is at best superfluous throat clearing.
And while Sotomayor may be open, she isn’t candid. She presents a potted history of race in America in which there is a straight line from Jim Crow segregation through literacy tests to the Michigan amendment, which “involves this last chapter of discrimination”–even though it bans discrimination, and even though Sotomayor acknowledges that its substance is perfectly constitutional.
(James Taranto, editorializing on Tuesday’s SCOTUS decision about a Michigan ban on racial preferenced in university admissions)
David Bernstein, of the Volokh Conspiracy blog (which of course means he’s also a darned good law professor somewhere) blogged of the Elane Photography case:
The Supreme Court declined to hear the Elane Photography case, so we won’t find out for a while whether the Court will recognize a First Amendment right not to photograph gay weddings. Meanwhile, I think there was potentially a more basic problem with the New Mexico Supreme Court’s ruling against the photographer, which is its holding that refusing to photograph a gay wedding based on moral objections to such marriages constitutes, as a legal matter, discrimination against gays. This was an issue of New Mexico law, and therefore not reviewable by the Supreme Court, but I think other courts would do well to draw a different line.
The New Mexico Supreme Court argued “that when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.”
So let’s tease this out for a moment with what strikes me as analogous example. Imagine a photographer, who instead of being a conservative Christian, is a whole-earth hippie type. He tries to run his business consistent with his moral views. Among those views is his belief that circumcision is a violation of a child’s human rights. He has Jewish clients, but when one of them asked him to photograph his son’s brit milah (circumcision) ceremony, the photographer declined, stating that he won’t photograph circumcision celebrations.
And so it went. This is very standard law school pedagogy. And I agree with Bernstein that in neither case would “conduct that is inextricably linked to” a protected class be protected. I also think that if discriminating again conduct so linked did discriminate against the protected class, a privilege against compelled expression (in this case, artistic photographic approbation of conduct to photographer disapproves) would be trump.
Still, it was interesting that some commenters on the blog insisted the the photographer in the case was discriminating against gays as gays because … well, I can’t paraphrase tortured logic or commenters or of New Mexico Supreme Court.
In our day, the issue is not Christology [as in the days of the proto-heretic Arius]. We’re not so sophisticated in our heresies. The issue is sex. We’re encouraged to pretend that the child-making act is not essentially ordered to child-making. We must pretend that it’s only the friction of erogenous flesh. We must pretend that a man can be made into a woman by a saw and a trowel, and a woman into a man by pinning the tail on the donkey, or by just thinking it is so.
… Priapus is a stupid and stupefying idol.
(Anthony Esolen) This is a rousing call to resistance if not to arms for Christians increasingly besieged by those who cannot bear the witness of sane people to the prevailing insanity. Historic analogies included. I do recommend it. (H/T Mike Bennett on Facebook)
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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)