Wednesday 11/16/16

  1. Decadence on parade
  2. No Protestants on SCOTUS
  3. Do try this at your office
  4. Fun with sex

1

I don’t know that Stephen K. Bannon is an anti-Semite, but it is clear that he is not a good man, and having a man of his character and temperament sitting at the right hand of the President of the United States is not a sign of the Republic’s vigor. One senses that we will soon be longing for the golden years of Haldeman, Ehrlichman, and Colson.

The accession of men like Donald Trump and Steve Bannon to the heights of political power are an unmistakable sign of decadence. It’s not that Trump is the first bad man to hold that office. For example, we did not know how decadent John F. Kennedy truly was, but had we known, he never would have been elected. (The Camelot mythology obscures, not enlightens.) The point about Trump is that we all know who he is and what he is, and yet we still chose him. Nobody can be shocked that he has elevated Steve Bannon in his White House: that’s who Trump is. He told us this about himself. He hid nothing.

And yet, when I read the collective gasp of the Establishment, in Washington and elsewhere, I realize that they have little idea of their own decadence, and how it led to Trump. Do you people really not see your own fault here? Do you not grasp how you collaborated in this ruin? … [Details follow]

(Rod Dreher)

2

[T]he absence of Evangelicals might make a difference to the [U.S. Supreme] Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.

The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context). And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.

(Mark Movesian, No Protestants on the Bench)

3

The Presidential election cycle is way, way, way too long and distracting:

The bulk of our attention flows to the presidential race. And because there is so much attention there, the process attracts candidates who are merely seeking attention for themselves and not high office. In fact, that may be why the primaries feel more and more like reality television, and produced a reality TV president. Each debate is a new episode, and the political press waits for the latest news about which contestant is eliminated.
Because our mode of engaging with politics feels tribal, and because the process takes two years, many people experience it as a crushing psychological and social blow to be on the losing side. Citizens who identify with the losing presidential candidate feel like they are no longer a part of their country. They experience the transfer of the executive branch from one party to the other as a regime change that threatens them …
The presidential election increases our sense that all issues are national issues. Even people who say they are addicted to politics often have no idea what is happening in their state or county government.
Ask the 10 people around you at work about Donald Trump’s conversation with Billy Bush. All 10 will have an opinion.
Now ask those same 10 people who represents their district in their state’s lower chamber. You’d be lucky if a single one knows the name.

(Michael Brendan Dougherty)

4

You probably thought Title VII’s ban on discrimination “because of sex” was intended to protect women (and in the rare case, men) from discrimination because they were women (or men), didn’t you?

Fool! Rube! Vulgarian! You have no sense whatever at how such language can be refined, generalized, and extended to cover salutary and progressive ends Congress never imagined:

That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.

U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, , (WD PA, Nov. 4, 2016) — emphasis added.

“Sex,” something fairly specific (that is, a term with a high level of specificity, low level of generality) gets distilled/elevated to a “view of what it means to be a man or a woman” (that is, a term with a low level of specificity, high level of generality), and at that amorphous high level of generality is “exactly the evil Title VII was designed to eradicate.”

I’ve commented on battling levels of generality in litigation before. A gay rights case is likelier to win, for instance, if instead of asking “does the constitution protect acts of homosexual sodomy from criminal prosecution?” one asks something like “do the emanations of the penumbra of the 5th and 14th amendment, which created zones of privacy, protect consenting adults in their intimate love choices?”

What a heart-wrenchingly winsome issue statement! Of course! Of course! Love wins!

Isn’t that fun?

* * * * *

“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.