Monday, 5/12/14

    1. Religious freedom in Oregon and elsewhere
    2. Botched execution a feature, not a bug?
    3. Is a painful death evil?
    4. Well, if the NSA says it, that settles it!
    5. Carry me back …
    6. Venerable animosity


A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions…. 

(Press Release from Oregon “Friends of Religious Freedom”) To the substance of that claim in a moment.

The backstory on the press release is that Friends of Religious Freedom in Oregon was pushing a conscience ballot initiative “designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements.” (Howard Friedman’s characterization) But while a Congressman can call his Bill “The Sunshine, Lollipops, Rainbows and Everything That’s Wonderful Act of 2014,” the title of a ballot initiative gets screened by someone, frequently hostile, and the tasty morsel the Oregon Attorney General devised, and the Court approved over objection, was “‘Religious belief’ exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, ‘arrangements’.” Apparently, two scare quotes were to be in the referendum title.

Friends of Religious Freedom (and every English teacher in the cosmos?) thought that title a bit of a muddle and pulled the measure in favor of a lawsuit “on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths. The legal teams are in place and we are confident that Oregon’s religious discrimination laws will be ruled unconstitutional.”

I would be confident, too, were I sure this case would reach the United States Supreme Court, which has remained admirably vigilant about coerced expression.

But there seems to be a homosexual distortion factor at work, akin to yesteryear’s abortion distortion factor:

As Justice O’Connor described it, “no legal rule or doctrine is safe from ad hoc nullification by this [c]ourt when an occasion for its application arises in a case involving state regulation of abortion.” …

There is now another legal goblin on the block: the homosexual distortion factor. The Supreme Court has again and again shown that its obsession with affirming “the dignity and status” of homosexual and lesbian unions will trump law and logic.

First, in Romer v. Evans, the court insisted that it knew the proponents of a state constitutional amendment barring special legal protection based on sexual orientation could only be motivated by “animosity” toward persons with homosexual inclinations, and that this required the court to strike down the state amendment. It was inconceivable to the court that there might be any legitimate reason to treat sexual proclivities different from, say, race.

Next, in Lawrence v. Texas, the court held that what had historically been regarded as a criminal felony—sodomy—was actually a constitutional right essential to “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Any defendants who invoke this passage to justify their failure to heed even relatively new laws, e.g., regarding the wearing of seat belts or helmets, or insider stock trading, much less a host of more traditional crimes like fraud or robbery, are likely to be laughed out of court).

Then, in Christian Legal Society v. Martinez, the court used its fixation with homosexuality to trump the First Amendment. The court held that the right of a student religious group to require that its officers and members believe in the religion in question (as if it were somehow invidious to only let Catholics be priests or Jews be rabbis?) and adhere to its moral standards for sexual conduct (as if groups cannot set standards for behavior as a matter of institutional integrity?) must fall in the face of a state university’s requirement that groups not “discriminate” on the basis of religion or, crucially, sexual orientation.

The court’s decision this past spring in US v. Windsor only confirms this sorry trend. The decision is so incoherent as to be inexplicable other than as an expression of an obsession with the notion that homosexual and lesbian lifestyles must be affirmed.

(Walter Weber writing at

Expressive conduct like playing piano or violin ought to be categorically free from anti-discrimination laws. You shouldn’t even need to say so in the law, because expressive conduct is not the sort of “public accommodation” (or housing, education, employment) to which anti-discrimination laws apply (I trust you were aware that no law prohibits your “discrimination” in choice of friends, right?).

An advocacy organization stated (and I don’t know that they’re wrong) that in not one case has there been a complaint of any vendor refusing to sell commercial goods to same-sex couples. Conversely, if declining to provide pure services like piano and violin playing is “subject to government penalties and civil actions” in Oregon, that would surprise me.

Where the rubber meets the road is personal expressive services that get reified in tangible things like photos or floral arrangements.  Florists and photographers have already felt the homosexual distortion factor via anti-discrimination laws.  In that case, I think the expressive conduct should exempt the photographer and flower arranger from anti-discrimination laws, but the contrary case is not utterly implausible.


Our local newspaper posed a “Rapid Response” question about whether Oklahoma’s recent botched execution caused the responder to change their views of capital punishment in any way.

I was surprised by the vehemence of the “no” answers and by the degree to which responders in Indiana knew details of the offense for which the Oklahoman was executed (he reportedly buried someone alive). I got the feeling that for some, the convict’s suffering from the botched job was a feature, not a bug.

I didn’t answer the question, but my answer would have been “no” as well. I was against the death penalty before and I’m against it still because we convict – sometimes I’d even say “frame for conviction” – innocent people. If you don’t believe me, especially you conservatives, what, pray tell, exempts prosecutors from the grandstanding and corruption of other elected officials?

For those who are truly guilty, I wish dread of the  Judgment Seat of Christ, not dread of a botched execution, but a botched job makes me no more opposed than I was before.


Except for sin nothing in this life, even death itself, is really evil, even if it causes suffering. The company of the saints brought bodily sufferings upon themselves. The martyrs made the violent death which others inflicted on them into something magnificent, a source of life, glory and the eternal heavenly kingdom, because they exploited it in a good way that pleased God. That is why, when Christ had abolished death by His resurrection, He still let it remain for His followers, along with this life’s other misfortunes, so that Christians should be exercised by these means for the sake of truth both in their lives and beliefs, and be made ready through the new covenant for the coming new age which will never grow old.

(St. Gregory Palamas, “On Redemption”, H/T Fr. Andew Stephen Damick)


NSA investigators now know that Snowden’s tactics included breaking into two dozen compartments using forged or stolen passwords.  Once there, Snowden loosed an automated “spider” with instructions to scrape the compartments for particular information.  In most cases, US officials have said, the data Snowden took was overwhelmingly of military and intelligence value to our adversaries and had little or nothing to do with privacy or whistleblowing.

So says Stewart Baker of the Volokh Conspiracy, citing Edward Jay Epstein at the Wall Street Journal.

I hope that nobody is so cynical that they find nothing dubious about what Snowden did. I also hope that nobody is so credulous as to find unimpeachable what “NSA investigators now know” – the delayed story of the very spooks on whom Snowden blew this whistle (whatever else he did, didn’t do, or is being framed for).


 I have come pretty much to believe in staying in one place, but these daily photos from last week-and-a-half (from Orthodox lawyer and gentleman farmer John S. Bell), plus Joel Salatin and Polyface Farm, Blue Ridge Parkway, Richmond, Williamsburg and other features, make Virginia pretty enticing.


Wikihow had suggestions, step-by-step, for stopping a wedding. First Things went them one better and suggested, er, post-wedding marriage cures, including preventing consummation. But I’m sure that venerable requirement “could only be motivated by animosity toward persons with homosexual inclinations” and would be unconstitutional.

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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.