Once more, slowly, for the idiots

David French tries to set the record straight on Masterpiece Cakes, scheduled for argument in the Supreme Court Tuesday.

Forgive me for starting a piece with the oldest cliché in the practice of law. As the saying goes, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither are on your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission on December 5, we’re seeing a lot of table-pounding from the Left. In fact, I’ve never seen a case more mischaracterized in my entire legal career.

The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive. But he never, ever — not once — discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.

Two years ago, in the Obergefell opinion, [Justice Anthony Kennedy] wrote this:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

If Justice Kennedy holds to this view, then not only does the First Amendment win, nondiscrimination laws won’t lose. Phillips isn’t discriminating on the basis of sexual orientation. If Kennedy changes his mind, then he’ll erode vital American constitutional traditions and doctrines. The sexual revolution, not the Constitution, will be the supreme law of the land.

That old cliché explains why it will be hard to set the record straight. Neither the law nor the facts favor what Colorado has done to Jack Phillips, the proprietor. Only the inexorable demand of the sexual revolution to eradicate all wrongthought and wrongthinkers supports it.

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“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.

The toxic default to “yes”

Hollywood has the best moral compass, because it has compassion.

(Harvey Weinstein, 2009, via Sean O’Neil, We are witnessing Hollywood’s long-overdue moral reckoning) I think it was C.S. Lewis who faulted flippancy for acting as if the joke had already been made, but sometimes it really has been made.

Another faulty moral compass is that of Masha Gessen:

The policing of sex seems to assume that it’s better to have ten times less sex than to risk having a nonconsensual sexual experience.

Er . . . Is it . . . not? Is this no longer an assumption we can agree upon? If so, it’s time to acknowledge that there might be something wrong with how we’re thinking about sex.

(Christine Emba, Let’s Rethink Sex (reformatted), quoting Masha Gessen’s New Yorker article When Does a Watershed Become a Sex Panic?)

More from Emba:

The backlash to the #MeToo movement has begun. As the parade of post-Weinstein exposés marches on, so do the unhappy reactions to a sexual landscape suddenly turned on its head.

There’s the skittish colleague (“If I ask a woman out at work, am I going to be reported for harassment?”). The nervous cad (“Will one unfortunate hookup land me on a public list of ‘sh*tty men’?”). And the vexing question underneath it all: “If we get so worked up about sexual harassment and assault, what will happen to sex?”

At the bottom of all this confusion sits a fundamental misframing: that there’s some baseline amount of sex that we should be getting or at least should be allowed to pursue. Following from that is the assumption that the ability to pursue and satisfy our sexual desires — whether by hitting on that co-worker even if we’re at a professional lunch, or by pursuing a sexual encounter even when reciprocity is unclear — is paramount. At best, our sexual freedom should be circumscribed only by the boundary of consent. Any other obstacle is not to be borne.

Angela Franks, a professor of theology with a focus on John Paul II (including his “Theology of the Body”) goes a level deeper than Emba’s sensible and accessible treatment of the problems with the novel doctrine of solum consensus. That makes for harder reading, but it gives an even greater reward (other than the psychic award of seeing Emba speak her peace in the Washington Post (yay!), while Angela Frank speaks hers in a relatively obscure blog).

 We swim in a culture marked by what Helen Alvaré has called “sexualityism”the conviction, springing from the sexual revolution, that any sex with anybody is probably a good thing. In this construct, non-procreative sexual expression is a simple necessity intrinsically tied to human fulfillment and personal identity (according to none other than the Supreme Court). This idea was also analyzed and criticized, in a somewhat different way, by Michel Foucault. A culture of sexualityism is not neutral; in it, the good of sexual expression as an end in itself cannot be intellectually challenged. All that is left is the will: do you choose it, or not? Consent carries the day.

If something is a basic human good, it is unreasonable to refuse it. One might consent not to sleep for obscure reasons of one’s own, but the burden of proof would be on the non-sleeper to defend her decision. I call this “the default of the yes”: it is reasonable to choose a good thing, and so it is expected that one will choose it. Thus has the seemingly freedom-friendly principle of the innate goodness of sexual expression become a weapon to attack the persons and institutions who do not agree. The apparent enshrinement of consent actually attacks the very foundations of consent itself: sexualityism puts a thumb on the seemingly impartial scales of choice. As women have observed about the “choice” for abortion, so too here: what begins as a right often turns into a duty.

What clearly emerges from the scenes in Harvey Weinstein’s room is that he did not feel defensive. It is the women who feel the onus put on them. Here we see how the burden of the “default of the yes” complicates the matter of consent. Is it consent to dress provocatively? Or to say no, but to give in? Or to keep saying no, but stop short of physical violence? How much refusal outweighs the default of the yes?

This is the web in which Weinstein’s victims find themselves entangled, at the very moment when they need all their wits about them. “The thing with being a victim is I felt responsible,” Asia Argento said. “Because, if I were a strong woman, I would have kicked him in the balls and run away. But I didn’t. And so I felt responsible.” The horror of the assault is compounded by the postmortem self-accusation, which reveals that the default of the yes shifts the moral responsibility from the perpetrator to the victim.

Is sexual expression really such an overriding good? If so, what do we make of the women’s unanimous experience of humiliation and anguish in Weinstein’s room? Sexualityism can make no sense of  the reality that sexual crimes reliably cause a trauma that, say, larceny does not.

Sexuality is not simply a matter of something that I have, as though my body is another possession just like my wallet or my car. If, as Gabriel Marcel said, I am my body, then sexuality has to do with my very person, which has a deep value.

(Bold and hyperlink for “basic human good” added)

I will begin believing that we’ve actually crossed a watershed when voices like Emba’s and Franks’ are the buzz instead of drek like Masha Gessen’s.

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“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.

Resilience

Today’s identity politics . . . teaches the exact opposite of what we think a liberal arts education should be. When I was at Yale in the 1980s, I was given so many tools for understanding the world. By the time I graduated, I could think about things as a utilitarian or as a Kantian, as a Freudian or a behaviorist, as a computer scientist or as a humanist. I was given many lenses to apply to any given question or problem.

But what do we do now? Many students are given just one lens—power. Here’s your lens, kid. Look at everything through this lens. Everything is about power. Every situation is analyzed in terms of the bad people acting to preserve their power and privilege over the good people. This is not an education. This is induction into a cult. It’s a fundamentalist religion. It’s a paranoid worldview that separates people from each other and sends them down the road to alienation, anxiety and intellectual impotence. . . .

There are two more paragraphs in this Wall Street Journal “Notable & Quotable” from Jonathan Haidt, the last sounding a hopeful note about America’s resilience.

I, too, see signs that the great ship of culture is swinging around on some of the issues that concern me, as, for instance, younger people begin re-populating our walkable cities, many of them choosing not to own an automobile.

There’s no government edict to depopulate the suburbs, and the fears (justified) of peak oil are abated. But as if by instinct, people are behaving as if they grok this little slice of fossil-fuel reality, whether or not they articulate it.

I suspect that some shift will happen, too, in America’s recent tendency toward secularization, though I can’t claim to know how the shift will come about, or just how the new landscape will appear.

No, God never promised that the gates of hell wouldn’t prevail against the Church anywhere, howsoever temporarily, but I doubt that America’s becoming so unfaithful that Africa must send missionaries with the Gospel any time soon. (To echo Jonathan Haidt, though, I have very low confidence in my optimism about this.)

But I am bearish on Evangelicalism (if you hadn’t noticed). Coincidentally (providentially?), Michael Gerson has some supporting commentary both for resilience in general but with specific bearishness on Evangelicalism:

It is sometimes assumed (including by me) that the presidency sets a moral tone for the nation, influencing what society considers normal and acceptable in a kind of trickle-down ethics. But the sexual harassment revolution emerged from society in spite of — or even in defiance of — a president who has boasted of exploiting women and who stands accused of harassing more than a dozen.

This is a reminder that the moral dynamics of a nation are complex, which should come as no surprise to conservatives (at least of the Burkean variety). This is a big country, capable of making up its own collective mind. Politics reaches only the light zone of a deep ocean. It is a sign of hope that moral and ethical standards can assert themselves largely unaided by political, entertainment and media leaders ….

[R]apid shifts in social norms should be encouraging to social reformers of various stripes. Attitudes and beliefs do not move on a linear trajectory. A period of lightning clarity can change the assumptions and direction of a culture.

I elided some comments about how the country is moving to a better place on sexual harassment, because of that I’m quite skeptical, for reasons I’ve mentioned in recent blogs. But Gerson has a big Evangelical fish to fry:

And where did this urgent assertion of moral principle come from? Not from the advocates of “family values.” On the contrary, James Dobson, the founder of Focus on the Family (now under much better management), chose to side with GOP Senate candidate Roy Moore of Alabama against his highly credible accusers. “I have been dismayed and troubled,” Dobson said, “about the way he and his wife Kayla have been personally attacked by the Washington establishment.”

It is as if Dobson set out to justify every feminist critique of the religious right. Instead of standing against injustice and exploitation — as the Christian gospel demands — Dobson sided with patriarchal oppression in the cause of political power. This is beyond hypocrisy. It is the solidarity of scary, judgmental old men. It is the ideology of white male dominance dressed up as religion.

This is how low some religious conservatives have sunk ….

Dobson isn’t just “religious.” He’s Evangelical. As is Franklin Graham, Billy Graham’s angry son, a reliable voice in support of guys like Roy Moore. I know of at least one other Evangelical scandal that could explode, involving a substantially fraudulent CV of a prominent Evangelical apologist. I’m not sure why it hasn’t exploded yet.

Some places remain, though, where student are given lenses other than “power”:

Imagine a beautiful garden in the midst of a gray, industrial, bleak city. The city’s architecture is functional only, given totally to the making of money or to the most ephemeral, when not downright base, forms of entertainment. This city is all big box store and mega-super-cinema-plex. But the garden is lovely, lush, and inviting. It is full of beautiful growth and well-crafted stonework. It is a place for true recreation and joyful exercise. And it is ancient, passed down through generations of city-dwellers as a place of relief and regeneration.

What would you think of the generation that let that garden die?

What would you think of a people who intentionally destroyed it?

In short, the main reason Western civilization, with an emphasis on “Great Books,” deserves a prominent—indeed, the prominent—place in the curriculum of the Christian university is stewardship ….

(Benjamin Myers, The Christian University: Steward of Western Civilization) At Myers’ university, there’s a required 15 credits in Western Civilization. Bully for them! Myers:

Let us not cheapen the noble goal of exploring world cultures by pretending that three hours in Polynesian folklore is as good as fifteen hours in Western civilization, when we really just want to open up twelve more hours for the study of management or sports nutrition.

Remember the old quip—I think it was from William F. Buckley—that the problem with liberals (“progressives” probably would have been more apt) is they can’t begin to describe the utopia in which they’d finally be conservative because all at last was well?

I cannot overemphasize how important it is that universities and liberal arts colleges like Myers’ be left unmolested because those who would homogenize education and stamp out unfashionable truths are themselves unstable chasers-after ephemera and delusions. This has been my conviction for nearly 50 years.

Have you read A Canticle for Leibowitz, by the way?

Resilience. I like that hopeful word. It’s a nice balance to my usual doom and gloom.

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“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.

 

Who were the Pilgrims?

I had forgotten that I followed @Senghendrake on Twitter for some reason. Hmmmm. I’ll bet this was the reason:

I’m going to assume Senghendrake is a guy. He describes himself as “The Catholic reactionary your elementary school catlady warned you about. Deus, Rex, Patria. Moose Country”.

He kinda trolled folks on Thanksgiving by retweeting Immortal Duck:

I suppose @Senghendrake+ and Immortal Duck are Russian nerd operatives trying to destroy motherhood, apple pie and the flag, but it’s more fun to imagine real people being this contrary.

* * * * *

“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.