Tuesday, 9/19/17

  1. Religious tests in Anglo-American law
  2. Is this where the “living constitution” comes from?
  3. Science deniers
  4. Has CNU morphed into something self-serving
  5. The Antifa Street Gang


Some interesting historic backdrop from lawyers for the estimable Becket Fund:

[I]t is no surprise that wedding ceremonies … have become one of the first flashpoints to arise in the wake of Obergefell v. Hodges. Who has to participate? Who has to help celebrate? And when may the state employ its monopoly of force to require individuals to participate, even when they have conscientious religious objections? These questions are front and center in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and its companion (but not-yet-granted) case Arlene’s Flowers, Inc. v. Washington.

Religious tests

In answering these questions the Supreme Court does not write on a blank slate. In fact, there is a long and ignominious history in Anglo-American law of “tests” – requirements that an individual participate in or celebrate a particular ceremony as a condition of entry into certain offices or professions, with the goal of forcing compliance with a particular set of beliefs. For example, from the reign of Henry VIII until well after the Glorious Revolution, English law required national and municipal government officials, military officers, members of particular professions, and students at Cambridge and Oxford to take part in communion ceremonies celebrated by the Church of England, generally at least once a year. Unless these individuals went through with the ceremony and passed the “test,” they were debarred from these positions of prominence.

The Act of Supremacy, the Uniformity Act, the Test Acts and the Corporation Act targeted both Catholics and Nonconformists such as Presbyterians, Baptists, Quakers and Methodists. But they also (perhaps absent-mindedly) excluded other religious minorities in England, notably Jewish Britons. These acts were one of the reasons many religious minorities emigrated to the American colonies, where religious freedom in colonies such as Pennsylvania was far greater.

A related problem was presented by requirements to take part in public oath ceremonies. Oath ceremonies were a common feature of legal process, but were also used to further ideological conformity. Many religious dissenters could not take vows such as the Oath of Supremacy, which required recognition of the English monarch as supreme governor of the Church of England (as opposed to, for example, the pope). But some religious dissenters, and in particular the Quakers, could not take any oaths at all. (Quaker weddings do not include vows for this reason.) Under the Quaker Act of 1662, Quakers were frequently fined or jailed for refusing to take oaths.

It was against this well-known background of abuse that the Founders – inspired by English Whig political philosophy and with many religious dissenters among their number – adopted rules that prevented the use of ceremonies such as religious tests and oaths to exclude individuals from particular offices. With respect to oaths, by the time of the American Revolution many of the colonies had adopted accommodations for oath-taking, allowing religious dissenters to “affirm” instead. This solicitude towards religious dissenters is reflected throughout our Constitution – wherever an oath is required, an affirmation may be made instead.

Similarly, the Founders included within the Constitution Article VI, Section 3, variously called the “test clause” or the “no-religious-test clause.” It prevents the use of religious tests like those in England to prevent anyone from holding office under the United States.

Given this well-known history of rejecting requirements to participate in or otherwise celebrate ceremonies, it is not surprising that the Supreme Court has interpreted other provisions of the Constitution – including the ones now at issue in the religious-wedding-vendor cases – to prohibit forced participation in or celebration of particular ceremonies …

Then they call on a precedent so fresh the ink is barely dry:

Third, the Supreme Court should reiterate one of the main points of Obergefell: Dissent is not a bad thing. In Obergefell, the court held that the problem was not that there is a multiplicity of “good faith” views about marriage. Indeed, the court stated, “reasonable and sincere people here and throughout the world” believe in traditional marriage based on “decent and honorable” religious grounds and those beliefs are not “disparaged here.” Rather, the problem stemmed from the enshrining of a single view into law that can be used to “demean[],” “stigmatize[],” and exclude those who do not accept it, treating them as “outlaw[s]” and “outcast[s].” And just as James Obergefell should not be made an outcast for living out his understanding of marriage, religious wedding vendors should not be made outcasts for living out theirs. As our colleague, law professor Mark Rienzi, has put it, “dignity is a two-way street.”


Ganesh Sitaraman thew a curve ball in his New York Times column: that our constitution wasn’t designed for our present values (enfranchised women and children of former slaves) and realities (economic disparities that are dividing the country into our own version of aristocrats and plebes). And those changes aren’t the only ones that challenge our basic law, which wasn’t crafted for a world superpower, either.

It sounds so banal in my summary. I found it powerful in the original.

Perhaps that’s part of what drives some to posit a “living constitution.”


As a science journalist who has written about climate change for a quarter century, I’ve struggled to understand climate change deniers. How, I wondered, could a group of otherwise intelligent people reject the clear and growing scientific evidence that the planet was warming, climate systems were going haywire, and human activities were at the root of the problem?

Then, as the new NFL season kicked off last week, I realized I was a science denier, too. Even in the face of mounting evidence that football is hazardous for players’ brains, I couldn’t stop myself from watching. I cheered gleefully as the Patriots lost on opening day Thursday Night Football and my Broncos prevailed on Monday Night Football, kicking off the Super Bowl LII season.

How different am I from people who put their skeptical heads in the sand and keep burning fossil fuels like there’s no next season? If I deny the neuroscience about the long-term implication of banging heads for sport, then I can continue being a fan, right?

Right, Mr. Glick.

And thank you.


I’ve been asked to submit a proposal for the next Congress for New Urbanism in May of 2018 by one of the organizers in Savannah, Georgia. I declined the first two times I was asked, then reluctantly agreed to offer a tentative outline the third time I was approached. I’m not convinced the committee will have much use for what I have to say.

CNU has done some amazing things over the years that are worth celebrating. They’ve taken the standard building blocks of suburbia and infused them with some of the elements of earlier forms of traditional architecture and urbanism. Simple things like front porches, interconnected street grids, and garages at the rear along back alleys were subtle, but important refinements to the typical cul-de-sac arrangement. Bringing pocket parks, bike lanes, schools, and churches right in to residential neighborhoods was a huge struggle that challenged prevailing regulatory orthodoxy, but were instantly embraced by homebuyers hungry for this kind of community. And integrating storm water management, wildlife preservation, bike lanes, and urban agriculture into the master plan turned tedious problems into beloved amenities. None of this was easy.

Urban infill has also been reinvented by CNU in a way that satisfies market demand as well as the endless regulations concerning off street parking requirements, fire codes, the Americans with Disabilities Act, and the parameters set down by institutional investors who fund these projects. These buildings are popular with a certain demographic, boost the local tax base, are profitable for those who build them, and contribute to the revitalization of older neighborhoods.

My criticism of these New Urbanist activities is that they are fantastically large, complex, and hideously expensive relative to the resources and skills of a simple mom and pop who might want to build something small and incremental in their hometown. CNU has worked with an army of professionals to create noticeably better places. Kudos. But it’s impossible for ordinary people to participate in the process ….

(Johnny at Granola Shotgun, The Trouble with the Congress for New Urbanism)

I’ve reproduced every word of Johnny’s up to the ellipsis, but I haven’t begun to tell his story.

How can that be? Because Granola Shotgun is consistently the most photo-rich blog I follow, and this installment is no exception.

Go read the whole thing, which includes an explicit (observation? accusation?) that CNU is now as captive to the “get big or get out” mentality as the developers who’ve built our present alienating neighborhoods housing aggregations. Johnny’s got an important voice in the mix, as does Chuck Marohn and his growing Strong Towns.


At the Wall Street Journal on Monday, academics David Pyrooz and James Densley advanced the interesting idea of designating Antifa a “street gang” instead of inventing a new label (“domestic terrorists”) with no legal or sociological definition.

The “street gang” label is attractive to me because it does seem to fit, and it may fit some of the alt-right brawlers as well. Further, it actually carries some legal consequence as a sentence enhancer in some states.


Here was some take-down of a couple of doctoral candidates in sociology who wrote some stupid and dishonest or delusional stuff about campus rape and Betsy DeVos in one of the newspapers I read.

I decided to spare you.

You are welcome.

* * * * *

“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.