Sunday, 9/20/15

  1. Equality über alles
  2. 2nd-class 1st-amendment rights
  3. Complicity double standards
  4. Prediction ≠ Fact
  5. RIP, old GOP
  6. Should Church give State tax exemptions?
  7. Corporate U
  8. How I spent my weekend

1

I was delighted to find that David Bernstein, a known legal scholar, shares my concerns about anti-discrimination laws rolling over everything, including religious freedom.

Since he’s an academic, he said it better and at greater length than I, but he identifies the threat from leftish egalitarians:

Their agenda of elevating antidiscrimination concerns above all others poses an acute threat to civil liberties.

Some civil libertarians have attempted to finesse the issue by redefining civil liberties to include protection from the discriminatory behavior of private parties. Under this view, conflicts between freedom of expression and antidiscrimination laws could be construed as clashes between competing civil liberties. For purposes of this book, however, civil liberties retains its traditional definition, referring to constitutional rights protected by the First Amendment and related constitutional provisions.

[E]xpansion of antidiscrimination laws, in turn, reflects a shift in the primary justification for such laws from the practical, relatively limited goal of redressing harms visited upon previously oppressed groups, especially African Americans, to a moralistic agenda aimed at eliminating all forms of invidious discrimination. Such an extraordinarily ambitious goal cannot possibly be achieved—or even vigorously pursued—without grave consequences for civil liberties.

Once the racial caste system was largely dismantled, and newly organized groups—such as older Americans, gays, and the disabled—began to use civil rights terminology in expressing their demands for government intervention on their behalf, antidiscrimination activists shifted their rhetorical emphasis. They no longer focused on historical and economic arguments regarding the need to end racial discrimination in employment and places of public accommodation. Rather, they argued that discrimination—as expansively defined by organized interest groups—should be banned as a moral evil.

(Kindle edition at 63, 110, 115, 169, emphasis added) I can only hope that the SCOTUS justices who say moralizing is no basis for laws will be consistent by striking down antidiscrimination laws that are nothing but thinly-veiled (if veiled at all) moral crusades.

There are “normative and constitutional reasons why the clash between civil liberties and antidiscrimination laws should be resolved firmly in favor of civil liberties.” (Kindle edition at 209)

If judges routinely announced that the government’s compelling interest in eradicating violent crime trumped the enforcement of constitutional rights, civil libertarians—in common with other thoughtful Americans—would strongly protest. Yet few civil libertarians protested when courts allowed the government to eviscerate civil liberties to pursue its interest in eradicating discrimination.

(Kindle edition at 252)

2

[T]he question I would like to explore in this lecture: whether religious freedom is becoming a lesser right, one that can be easily overridden by other rights, claims, and interests. That question, I hardly need to say, is a question about the status of religious freedom in the culture as well as in the law.

It is hard to resist the conclusion that our liberal societies have been living for quite a while on inherited social capital — and that, like profligate heirs, we’ve been consuming our inheritance without bothering to replenish it.

(Mary Ann Glendon, writing 8 years later than Bernstein, but sharing similar concerns.)

3

Bruce Frohnen has signed onto a friend of the court brief supporting the Little Sisters of the Poor in their resistance to complicity in what they consider sin:

The legal arguments involved are rooted in conflicting laws, constitutional provisions and forms of reasoning. Confusion and arbitrary “principles” are sadly common to most cases concerning religious rights in this era, ruled as it is by the false doctrine of a “wall of separation between church and state” (a doctrine found nowhere in our constitution) and occasional attempts by Congress to rein in the legal profession’s headlong drive to banish religion from the public square. To simplify, lower courts have refused to consider the sisters’ claims that they are being forced to violate their religious beliefs because they see no “burden” being attached to the exercise of religion. Why not? Because the Obama Administration has arranged for dissenting religious organizations to register that dissent, then fill out a form authorizing distribution of the subsidized contraceptives and/or abortifacients.

The Obama Administration’s theory is that this end run results in distribution of the contraceptives separately from the sisters, thereby eliminating any claim that they are suffering a burden on their free exercise of religion. But that is not how the process actually works. The sisters must hire a third-party administrator, who will review claims for health care expenses and see that contraceptives and abortifacients are distributed through the sisters’ own health care plan. And here we have the crux of the issue, for courts seem incapable of understanding a very basic facet of Catholic (and, indeed, most moral and religious) thinking, namely that one is implicated in the actions of oneself and of those to whom one gives one’s support …

In our age of financial divestment programs, whereby pension plans and the like are lobbied to cut ties with various nations and companies deemed to engage in immoral conduct, it stretches credulity for Obama Administration supporters to claim that this reasoning is false or even obscure.

The friend of the court brief analogizes to the current situation through two hypothetical situations. First, suppose the government were to require that nuns personally distribute contraceptives and abortifacients to their employees. They would be compensated for their time and any expenses, and would even be allowed to express their personal objections to use of the drugs. But they would be forced to take the actions enabling conduct they find morally, religiously objectionable. In such a case, it would be clear that this overpowering of the conscience and will of the nuns would be constitutionally objectionable. What would we make, then, of a different case? Suppose now that the nuns are not forced to act, but rather forced to allow government officials to enter their religious facilities and use their medicine carts to distribute those same drugs. Again, the nuns would be reimbursed for any costs and would be allowed to express their opposition to contraception and abortion (provided, of course, such objections were not found to interfere with the distribution).

This second scenario is, in essence, what Obamacare demands. The property, the facilities and the personnel of the Little Sisters of the Poor are being commandeered for a purpose they find objectionable.

This is a more understandable basis for religious objection than the widely-reported idea that mere written registering of dissent is all that’s required of the Little Sisters and other conscientious objectors.

Those who cannot fathom such scruples, like Appellate court Judge Richard Posner, may wax incredulous that the “mere” fact of having one’s property used to further acts one’s faith definitively declares immoral is a true burden. Judge Posner came quite close to calling the sisters liars for pointing out the distinction, quite clear in Catholic moral thought, between there being a law on the books allowing for contraceptives and abortifacients to be distributed freely and having one’s own health care plan commandeered for the purpose.

Posner has always been a bully, but he has become insufferable in his economic reductionism over the years. I’m so glad nobody ever took the bait and put him on SCOTUS just because he’s so smart. Smart people can be quite evil.

Anyway, note that point that Social Justice Warriors feel sullied if their pension plans own stock in a company that does something immoral, but somehow can’t see why the Little Sisters should feel sullied by deeper and more immediate complicity.

4

I like Russell Moore. I hope he’s right (while fearing he’s wrong). But I stopped reading when I hit “they can’t change the fact that the Evangelical cave-in on sexual ethics is just not going to happen.”

This is prediction, not “fact.”

5

The old GOP, the Republican Eastern Establishment — The Elders — is dead. The options today are Donald Trump or the formidable Texan, Austin-born and reared Carly Fiorina.

(Bernie Quigley at The Hill)

6

[I]t is a mistake to equate “not taxing” with “subsidizing,” even if in some sense the effect is the same. Governments do not refrain from taxing religious institutions merely because it is politically convenient or socially acceptable to support them. They do and should continue to refrain from taxing churches because their power over them is limited, because “church” and “state” are distinct and because religious freedom is fundamentally important.

(Richard Garnett)

7

The link to this article was, apparently, focused on it’s critique of liberal Shibboleths. So I was surprised to find this opening paragraph:

Here at Purdue University, where I recently completed my Ph.D. in English, we have a little garden on the far west side of our enormous campus, where students and their families and professors and nearby residents tend to tomatoes and sunflowers. It’s one of my favorite places here. Overgrown and seemingly unmanaged, this western fringe of campus is perhaps the only place left at the university that is not meticulously landscaped and stage-managed for tour groups and the website. There’s nothing specific to Purdue in this aesthetic conformity. Over the past two decades, financial crises notwithstanding, the American university writ large has undergone a radical physical expansion and renovation, bringing more and more campuses into line with grand architectural visions. That’s precisely why I love the garden: It’s one of the last little wild places left at Purdue. Naturally, it’s slated for demolition.

(Fredrik deBoer) There’s a lot here besides lament for a garden plot.

I wish that committed student activists would recognize that the administrators who run their universities, no matter how convenient a recipient of their appeals, are not their friends. I want these bright, passionate students to remember that the best legacy of student activism lies in shaking up administrators, not in making appeals to them. At its worst, this tendency results in something like collusion between activists and administrators.

As a result, our campuses are becoming simultaneously too safe and too dangerous, with every safe academic space balanced by a space of socially desirable danger out of activists’ reach. Our students emerge from classrooms that, we complain, have been sanitized to the point of ridiculousness, and then spend their evenings in Greek houses and dorms that are in a state of perpetual alcoholic fugue. (And let us not be so naïve as to doubt that universities quietly cultivate their reputations as party havens, knowing how essential such a reputation can be to attracting potential students.) At Purdue, I watched what I said as an instructor, for fear of having to show up to answer a complaint in some dean’s office, but I couldn’t ride my bicycle past the fraternity houses on Slayter Hill on a Saturday afternoon without being accosted with homophobic slurs. That’s the future I fear the most: that the educational function of the university will become sanitized and smoothed over, while the spaces that have always resisted fair treatment of difference will continue to do so. It is as if the left is grasping more tightly the few spaces it can control — classrooms, publishing, academic conferences — out of frustration toward all the places it cannot.

The title is Why We Should Fear University, Inc.: Against the corporate taming of the American college. Hope you can get through the paywall.

8

Considering how much I’m on the internet, I’m surprised this hasn’t happened before.

I re-Tweeted a re-Tweet suggesting that if President Obama doesn’t clean up the list of folks invited to greet Pope Francis (a list that currently includes a drag queen and whatever menagerie s/he chooses to invite, plus Gay divorcée Episcopal Bishop Gene Robinson), the Pope should bypass the White House and go straight to the people who actually will be glad to see him and won’t insult him.

I got a response from someone who said that the original tweeter works for a racist hate group.

Instead of simply noting (or even ignoring) the non sequitur and asking what the troll thought of the Presidential insult, I foolishly asked for proof of the charge. [Long, self-indulgent narrative deleted.] It ended when McCarthyite Social Justice Warrior #2 (they tag-teamed me) SHOUTED expletives at me. Lesson learned.

May all my afflictions in the coming troubles be so light, and so easily blocked, as Twitter Trolls.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.