Two mensch and a meschess

  1. Keep that natural light shining
  2. Douglas Laycock is a mensch
  3. Russell Moore is a mensch

1

She is blunter than I in her word choices, but Lydia McGrew and I agree on the arc of her story, at least as I shall summarize it in excerpts:

There is a common thread that runs through all of the insanity I have mentioned here, and it is this: The natural light is being systematically doused in the public mind … I’m going to speak candidly to my fellow Christians: There is a personal devil, and he hates the natural light. So he’s seeking to destroy it. He’s attacking it right now from many different angles. …

So here’s what I have left to say to do: Keep on speaking out about the natural law, and above all, keep on teaching it to your children. And teach it as the natural law. Speak of it (and be sure that you think of it) unabashedly as mere sanity and common sense. Don’t give in to the meme that says that your objections to sodomite “marriage” or to calling a man a woman are irrational or even narrowly religious. Even if you or your organization has to use some religious exemption or non-discrimination law as a legal loophole, remember that you are actually testifying to the natural light which is available to all men, which is the deliverance of reason. It is not some narrow, black-box religious fiat. Tell your confused Christian friends outright that they are flat wrong, loud and clear, when they say foolish things such as, “I don’t object to homosexual marriage, because we shouldn’t be trying to impose our Christian views in secular law.”

This is somewhat easier to see for abortion, because it’s killing a baby. So remember it there too: Your opposition to abortion is based on the natural light, not on a religious objection that no one else can be expected to understand.

We are entering a time of great darkness in our country. One of the greatest gifts you can give to anyone–your child, your friends, your congregation (if you are a pastor), someone you mentor–is the natural law. This doesn’t mean that you should downplay an understanding of the Bible in Christian contexts. But God intended for the natural light always to be there to work together with what he said in the Bible. And the Bible doesn’t say everything important that there is to say. When the natural light is extinguished, chaos follows. The left has an explicit war on with reality and hence with the natural law and the natural light. We therefore need to be witnesses to it, in season and out, even in the midst of our grief and discouragement, knowing that no darkness can last forever.

One of my Facebook friends, who works for a pro-life organization, quoted yesterday from one of the LOTR movies. While, as a Tolkien purist, I generally hesitate to quote the movies rather than the books, this quote is apropos:

It’s like in the great stories, Mr. Frodo. The ones that really mattered. Full of darkness and danger they were. And sometimes you didn’t want to know the end… because how could the end be happy? How could the world go back to the way it was when so much bad had happened? But in the end, it’s only a passing thing… this shadow. Even darkness must pass.

(Emphasis added)

2

With some justification, I consider myself a low-level expert in religious freedom law, but I’m a little rusty and I learned a few new facts, and better grasped some underlying principles, by listening to the June 22 Cato Daily Podcast. Summary (I’ll signal when I’m quoting Prof. Laycock instead of summarizing):

RFRA passed with bipartisan support, sponsored by Orrin Hatch and Ted Kennedy, signed enthusiastically by Bill Clinton. The 3 1/2 year delay after Employment Division v. Smith came from the right, including the Catholic bishops and some in the pro-life movement, who thought that it was an “Abortion Restoration Act” in disguise (as it was thought that reversal of Roe v. Wade was imminent).

The arguments in favor of RFRA were aimed at the right because that’s where the opposition was coming from. The arguments included such things as “the gay-rights movement is trying to force Catholic schools to hire gay teachers” and “pro-choice groups are trying to make Catholic hospitals perform abortions.” Both of those were true and they’re truer today. Nadine Strossen of the ACLU agreed in her testimony for RFRA that those things were happening.

The civil libertarian position is to protect the rights of both sides to the extent possible. The ACLU has gone entirely to one side. On the national level, religious freedom is still on their list of things they care about, but it’s at the very bottom; any other rights that ACLU values is valued more highly than religious freedom. Many local chapters of the civil liberties Union simply don’t care about religious freedom at all.

Let me break there to note that what follows was one of the most valuable parts of the podcast for me:

Religious minorities and sexual minorities make essentially parallel claims on society: they say that some aspects of human identity are so fundamental that they should be left to each individual free of all nonessential regulation.

Each of those identities is routinely manifested in conduct. Laycock says that it is “wholly unreasonable” to expect sexual minorities to remain celibate all their lives. (I disagree in ways too nuanced to go into; suffice for now that I’m an outlier and my position is a political and judicial loser for the foreseeable future.) It’s also unreasonable to ask anybody not to act consistently with their understanding of God’s will.

Similarly, each side is viewed as evil by a substantial part of the population.This is constitutionally significant. Religious conservatives may think that gays and lesbians are committed to lives of chaos and promiscuity. Gays and lesbians tend to think that religious people are hateful bigots. Each side is vulnerable to biased regulation in jurisdictions where the other side holds the high hand politically.

What would it look like to try to protect the liberties of both sides? Women are entitled to reproductive health care. Gays and lesbians are entitled to marriage and weddings and to live their lives. With the exception of small towns and rural areas with monopolies, conscientious objectors are not in a position to deny legitimate freedoms to gays and lesbians (as they can always select a different vendor). So for the most part, we can exempt the conscientious objector without inflicting any tangible harm. The market really will respond by choosing other providers.

So the real issue is “dignitary harm.” “We were insulted. We were offended.” Laycock:

They are insulted and offended and that is a real harm, and I don’t want to minimize it. But I want to note some important things about it.

It does not outweigh the harm of violating conscience. On the religious side, the conscientious objector who is forced to provide a medical treatment that he believes immoral or forced to assist with a religious ceremony that he believes violates God’s law disrupts his relationship with God …

I’m not the person to go into the theology of it. Viewed in purely secular terms, this is an emotional harm on both sides of the argument, but we can take it a step further than that.

The offended gay couple who has to find another wedding planner still gets to live their own lives by their own values. The regulated believer who is forced to close her wedding business in order avoid assisting with same-sex marriages does not get to live her own life by her own values. The harm of regulation on the religious side is greater than the simple dignitary or insult harm on the secular side.

And second, this kind of insult or offense has been held not to be a compelling government interest in the free speech context. Few things are better settled than the principle that government cannot censor speech because it is offensive …

By the same token, dignitary offense should not outweigh religious freedom.

In red states, and some purple states, there will be no bans on sexual orientation discrimination without religious freedom protection. That’s almost a majority of the states that don’t have protection from discrimination for sexual orientation by now. That’s why the gay-rights site is trying to avoid the legislative process by getting gay rights read into Titles VII and IX. Many on both sides would rather have no law than the law that contains an exemption they oppose. Both sides want to crush the other rather than compromise.

Cato is famously libertarian. If the 2016 Libertarian ticket thought like this on religious freedom, they’d have my vote in a heartbeat, but alas, Gary Johnson, faux Libertarian nominee for POTUS, disgustingly believes in coercing religious consciences.

Johnson has said that it should be illegal for Christian wedding vendors to decline to serve wedding ceremonies that conflict with their religious beliefs. He has also participated in scare-mongering about the threat of sharia law coming to America. He gave an interview in which he suggested America should, like France, ban the wearing of certain Muslim head-coverings, which he had to retract later.

Back to the Cato podcast:

On the bright side for religious freedom, there have been in ten years three unanimous Supreme Court decisions favoring religious freedom, some of them unexpectedly unanimous. “UDV”, Hosanna Tabor and Holt v. Hobbs an Arkansas prisoner beard case. Nobody who heard Hosanna Tabor argument expected 9-0, or even 6-3.

Two of those cases (UDV and Holt) had no interest that the left cares about on the side against religious freedom. So there is broad support for religious liberty so long as there is no countervailing interest that the left cares about. But if there is a countervailing interest that the left cares about, the religious freedom claim typically loses (at least in lower courts).

Take-aways for me:

  1. The ACLU now has a miss-to-hit ratio so high on religious liberty that I doubt we’ll ever be aligned again on a case that I care about. Don’t be fooled by them defending religious freedom in cases where one of the pet causes isn’t affected.
  2. Antonin Scalia’s Employment Division v. Smith opinion and the “work-arounds” that have succeeded for religious freedom advocates explain the absolutism of the cultural left: (a) any exception to a law threatens its “general application” in a way that will open up religious conscience exemptions, too; (b) new state RFRAs will all-but-automatically negate all the dignitary harm claims (which is what virtually all the cases alleging unlawful discrimination in the marketplace boil down to), just as free speech now trumps dignitary harm.
  3. Team Obama’s recent interpretation of Title VII probably was a sop to the gay rights legal strategists.
  4. Look for Team Obama to read leftish sexual orientation stuff into Title IX before leaving office, too.
  5. If true friends of religious freedom can pass a state RFRA, even straight up with language identical to the federal RFRA (i.e., no tweaks to address specifically attacks on religious freedom since Federal RFRA was passed), they should grab it.
  6. If true friends of religious freedom must pay for a state RFRA with concurrent addition of sexual orientation protections to their anti-discrimination laws, leaving any conflict between the two to the courts, that is probably a very prudent trade-off.
  7. I just don’t get where gays are coming from when they think their wounded dignity is a more grievous harm than gratuitously forcing someone (yes, even someone who had the temerity to hang out a shingle of some sort) to violate their conscience. A fortiori, I don’t get why judges buy it.
  8. Because Justice Scalia at his nadir demoted religious freedom, when plausible, a case probably is better framed as a free speech case, or a freedom from compelled expression case, than as a pure religious freedom case.

3

I seem vaguely to recall sometime disagreeing mildly with Russell Moore, or saying “there he goes being a baptist again,” but that would have been a rare exception. Generally, he’s an outstanding voice not just for Southern Baptists (his employer), but for thoughtful Evangelicals and even for conservative Catholics and Orthodox. This, for instance.

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“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.