Compelling Interests

  1. Compelling Interests
  2. Choreographing gay weddings
  3. Without FISA, the creeps have nowhere to hide
  4. Earth First!
  5. The Power of Engaging the Other
  6. Is anti-semitism really escalating?
  7. Dating Season for the Boobies
  8. Driven to distraction by mindfulness


I find myself in a surprising position: disagreeing with judges who opined that “There is no compelling state interest in shielding individuals from taking … offense,” a proposition with which I’d normally agree. Add to the surprise that the individuals were taking offense at someone declining to participate in their same-sex wedding, a bit of mummery toward which I have virtually no sympathy.

The reason why I disagree with those judges is that the someone who declined to participate was another judge, and the case was a disciplinary case regarding her religious objection to participating in same-sex weddings. The majority held:

Allowing Judge Neely to opt out of same-sex marriages is contrary to the compelling state interest in maintaining an independent and impartial judiciary.

Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.

The dissenters responded:

The majority’s position that Judge Neely violated Rule 1.2 is based on the mistaken conclusion that Judge Neely refused “to follow the law of the land.” As discussed above, the undisputed evidence shows that Judge Neely made no such refusal. She did not state that she would deny marriage to same sex couples, but rather said she would assist such couples in finding someone to perform their civil marriage ceremony. The law does not require Judge Neely personally to perform every marriage.

Apparently some individuals might find it offensive that Judge Neely said she would decline to personally perform a same-sex marriage and instead would refer them to someone else. There is no compelling state interest in shielding individuals from taking such an offense.

(Both sets of quotes via Howard Friedman)

The crucial distinction in my mind is that a judge is a public servant (“employee” if you prefer insipid terms) and that discrimination (a word that, believe it or not, is neutral) by public servants, when such discrimination arguably is invidious, requires strong justification. It sounds as if Judge Neely’s justification didn’t outweigh the “compelling state interest in maintaining an independent and [at least outwardly] impartial judiciary.”

As I’ve said or at least strongly hinted, I don’t think there’s a compelling interest in shielding individuals from taking offense at florists, bakers, photographers and calligraphers, among the many crafts who’ve been shat on by crybullies and their government enablers. And, contrary to the court (and most courts who’ve considered it), I don’t think that refusing to cooperate with same-sex weddings is discrimination based on “sexual orientation” — because I’d be inclined not to serve two openly hetero guys who wanted a “wedding” to get some of the fabled thousands of tasty perks of “marriage” while they continued alleycatting exclusively with women.

But if you’re a judge, part of your job description is impartiality. You sow suspicion about your impartiality if you refuse for religious reasons to officiate some wedding requests but not others, and not just for logistical reasons. You raise at least marginally legitimate questions about your ability to treat all litigants fairly.

So I think the majority’s olive branch of “cease performing all marriage ceremonies” is the right balance. And don’t foul your nest by loudly announcing “I’m ceasing to do marriage ceremonies because the state Supreme Court says it’s all or none, and my religious convictions won’t let me do same-sex weddings.”

But that’s a hill I’m unwilling to die on. I’m sympathetic toward Judge Neely’s failed good-faith effort at drawing a different line, but I think she failed.


“It’s a very hard question,” he said. “Doctrinally, it could go either way.” Eskridge has been active in gay-rights litigation for twenty-five years—he filed a marriage-equality case for a client in Washington, D.C., back in 1990—but he also believes that the legitimate rights of religious minorities have been neglected by judges.

“Fundamentalist Protestants, Catholics, Orthodox Jews, Muslims, Mormons—it’s a big chunk of America,” he told me. “Decent people. They feel they are under siege by government. Many have no problem with gay customers. They just don’t want to participate in the choreography of gay weddings.”

(Roger Parloff at the New Yorker, quoting William Eskridge of Yale Law School)


A blast from exactly 39 years in the past:

What [Robert] Bork [appreciated] more keenly than almost anyone else at the time, is that the Foreign Intelligence Surveillance Act at the root of this mess—i.e., whether or not there were such warrants on Donald Trump or his associates—was not a reform but an abuse. He outlined his objections in a prescient op-ed for this newspaper on March 9, 1978, shortly before the Senate passed the bill. In particular, he argued, the courts set up by this law would work to obscure the responsibility the “reform” was meant to ensure:

“When an attorney general must decide for himself, without shield of a warrant, whether to authorize surveillance, and must accept the consequences if things go wrong, there is likely to be more care taken. The statute, however, has the effect of immunizing everyone, and sooner or later that fact will be taken advantage of.” In other words, if administration officials could not hide behind court approvals, they would think long and hard about their surveillance decisions.

(William McGurn on Robert Bork’s prescience about the problems of FISA)


Garrison Keillor gave up Prairie Home Companion just in time for a far, far better, double-plus-good gig Wednesdays at the Washington Post:

Joe Biden is following me. I go to lunch at Mickey’s Diner and he’s sitting two stools away, wearing a stocking cap and a fake mustache with a fake nose and glasses but he says, “Hey, how’s it going, fella?” It’s Joe Biden. So pathetic. Sad.

He is conducting a destabilization campaign against me, putting chemicals in my food that make me behave erratically. Why?

Because he and his secret cabal are terrified of what I represent.

My guiding principle from the beginning has been Make Earth The Center Again. Not the sun. Earth First.

Ever since Pope Urban VIII failed to shut down Galileo and the fake science of Copernicus, Judeo-Christian civilization has been in steady decline. It’s the plain truth. That’s why the Pilgrims came to the New World, to escape solar-centrist ideology.

If one week you notice that my column is missing from this paper, you will know that I’ve been captured. I will need all 50 million of you to park bumper to bumper on the nearest freeway and honk your horns continuously. That may be the only way to accomplish what needs to be done.

Joe Biden is sitting and looking at me as I write this and he is reading these words in the reflection off my glasses. My coffee tastes funny. I hear a high-pitched humming sound. I feel insects crawling up my leg. This may be my last message for a while. I love you all. You are beautiful. It is a better thing I do now than I have ever done.


Megan Phelps-Roper, who left her grandfather’s Westboro Baptist Church at age 25 after having been “on the protest lines” for 20 years, sees a discomfiting parallel between Westboro and today’s political discourse:

I needed to learn. I needed to listen.

This has been at the front of my mind lately because I can’t help but see in our public discourse so many of the same destructive impulses that ruled my former church.

We celebrate tolerance and diversity more than at any other time in memory, and still we grow more and more divided.

(Beginning at about 6:55)

Along the same lines, a Washington Post story on two California adversaries who sat down and listened to each other.


I’ve been rather taken aback by the panic in the Jewish community over American anti-Semitism since Donald Trump won the election. The recent spate of hoax bombing threats to Jewish community centers and other Jewish institutions around the country has been a precipitating factor, but the fear is drastically out of proportion to the threat; no bombs have been found, and there are no indications that there is any real physical threat to Jews …

[T]he origins of the fear bear only a tangential relationship to the actual Trump campaign. For example, I’ve lost track of how many times Jewish friends and acquaintances in my Facebook feed have asserted, as a matter of settled fact, that Bannon’s website Breitbart News is a white-supremacist, anti-Semitic site. I took the liberty of searching for every article published at Breitbart that has the words Jew, Jewish, Israel or anti-Semitism in it, and can vouch for the fact that the website is not only not anti-Semitic, but often criticizes anti-Semitism (though it is quite ideologically selective in which types of anti-Semitism it chooses to focus on). I’ve invited Bannon’s Facebook critics to actually look at Breitbart and do a similar search on the site, and each has declined, generally suggesting that it would be beneath them to look at such a site, when they already know it’s anti-Semitic.

There is also a general sense among Jews, at least liberal Jews, that Trump’s supporters are significantly more anti-Semitic than the public at large. I have many times asked for empirical evidence that supports this proposition, and have so far come up empty. I don’t rule out the possibility that it’s true, but there doesn’t seem to be any survey or other evidence supporting it. Given that American subgroups with the highest proportions of anti-Semites — African Americans, first-generation Hispanic immigrants, Muslims and high school dropouts — are strong Democratic constituencies (though the latter group appears to have gone narrowly for Trump this time), one certainly can’t simply presume that Trump has a disproportionate number of anti-Semitic supporters.

Often living in a blue bubble, liberal Jews easily can panic when they don’t know anyone who voted for the other side’s candidate(s), and can assume the worst about the other side’s supporters. Indeed, liberal Jews tend to panic whenever “the right” is doing well in American politics.

(David Bernstein)

I find this somewhat reassuring, having begun to wonder if the plural of “anecdote” really is “data.” I didn’t know that some of the threats were hoaxes.


I have suspected for some years now (I didn’t mark the calendar; sorry) that “dating” has become a euphemism. I now have my proof:

How to explain the blue-footed boobies on the front and home page of The New York Times — amid stories about presidential smears, conspiracy theories, sexist attacks and a setback for transgender rights?

Yes, it is mating season for the blue-footed booby ….

But here’s the Page 1 (digital edition) teaser:

Boobie dating

So what do you now call it if you go out with a “friend-without-benefits” of the opposite sex?


Is it just me, or are others driven to distraction by the daily onslaught of stories about “mindfulness”?

* * * * *

“The truth is that the thing most present to the mind of man is not the economic machinery necessary to his existence; but rather that existence itself; the world which he sees when he wakes every morning and the nature of his general position in it. There is something that is nearer to him than livelihood, and that is life.” (G.K. Chesterton)

Some succinct standing advice on recurring themes.