Bad Analogies

[N]o one, not the most wild-eyed critic of the principles underlying the civil-rights legislation of the 1960s, ever suggested that, if such laws were passed, they would lead to obscure Christian bakers’ being forced at the point of government bayonets to produce cakes for the celebration of homosexual weddings. (I write “principles” because the Masterpiece case is a challenge to a Colorado statute, not to the Civil Rights Act of 1964.) The slope is, in fact, slippery.

We ought to think a little about how far down the slope we want to go. We ought to think a little about how far down the slope we want to go. Americans look instinctively to our Constitution and to our national political principles for guidance, and our attitude toward them is the civic version of sola scriptura. We tend to generalize when we ought to specify and sometimes to specify when we ought to generalize. The social and political condition of African Americans in the 1960s was indefensible and incompatible with our national ideals. Something needed to be done, and something was, imperfectly. But our generalizing from that has not always been intelligent or prudent or constructive. Jews often were treated shabbily in our country, and sometimes still are, but the case against Princeton’s numerus clausus system of discriminating against Jewish applicants was not the same as the case against Mississippi’s suppression of African Americans. The situation of gay Americans in 2017 is not very much like that of black Americans in 1935.

It is not the case that discrimination is discrimination is discrimination. Telling a black man that he may not work in your bank because he is black is in reality a very different thing from telling a gay couple that you’d be happy to sell them cupcakes or cookies or pecan pies but you do not bake cakes for same-sex weddings — however much the principle of the thing may seem superficially similar. If the public sphere is infinite, then the private sphere does not exist, and neither does private life. Having a bakery with doors open to the public does not make your business, contra Justice Harlan, an agent of the state. A bakery is not the Commerce Department or the local public high school.

Sure, bakery customers may travel there on public roads. But tell me: Isn’t that EPA-regulated air you’re breathing?

(Kevin D. Williamson)

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Some succinct standing advice on recurring themes.

Where I glean stuff.

Speech or Religion?

I wrote several times, I’m pretty sure, that I thought the Masterpiece Cakeshop case would be argued by Jack Phillips’ attorney, and would ultimately be won, as a case about compelled artistic expression, a violation of the First Amendment’s speech clause. Free speech and compelled expression precedents are more strongly in Phillips’ favor than the current state of the law on free exercise of religion. Or so I thought.

I stand by that, but I’ll admit that the justices asked some pretty skeptical “where do we draw the line” questions about when or whether a cake is expressive, when a craft is art, and stuff like that (the last clause is my fudge factor — I’m not going back to review the transcript of argument again).

[Digression: I don’t think they’d have asked those skeptical questions had the case not implicated our newest Super-Right, the right to have everyone in every way affirm your every expression of your every sexual (and “gender”) whim. So it appears that the law of the land has another distortion factor baked into it: an LGBT distortion factor has taken root, joining the original abortion distortion factor (“no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion”) and a little-remarked creationist distortion factor (Creationists categorically lose cases involving science teaching—and intelligent design advocates get labeled “Creationists”).]

But I do disgress. I wrote today because someone I respect thinks, after scrutinizing the Masterpiece Cakeshop oral arguments, that the case could turn on the free exercise of religion after all.

Mark Bauerlein and Mark Movesian recently chatted about this on the First Things podcast. Bauerlein is no lawyer, but Movesian is a law prof, and he thinks Anthony Kennedy may smell blood in the water: a lack of neutrality or of general applicability in the Colorado law, which could be fatal under Employment Division v. Smith‘s new test for free exercise violations (the “when does the constitution create a religious exemption to a law” question).

The lack of neutrality (e.g., gerrymandering to target an unpopular religion) has been fatal in only one famous case since Employment Division v. Smith, to the best of my recollection: a case involving Hialeah Florida targeting the Santeria religion, Church of the Lukumi Babalu Aye v. City of Hialeah. But general applicability has been a wider problem, because, basically, religion gets an exemption if anyone gets an exemption, and our laws typically are riddled with “small business,” “Mrs. Murphy’s Boarding House” or other piddly little exemptions that someone lobbies for powerfully or that seem fair to legislators.

So here’s the problem: Colorado has, on something like three occasions, exempted cake bakers from making cakes that opposed gay rights or same-sex marriage. I assume those cakes were sought by provocateurs who, frankly, I would have dismissed as misguided and counterproductive (I actually may have so dismissed them). But by asking for a Bible-shaped cake with a Romans 1 “Clobber Passage,” the provocateurs may have turned refusal into “anti-Christian discrimination.”

Not only did those other three bakers win on the basis of dubious distinctions from the Masterpiece Cakeshop case, but a couple of Colorado’s Civil Rights Commissioners slung some bigoted-sounding remarks at Jack Phillips, with which Justice Kennedy grilled Colorado’s attorney. (Pro Tip: Do not let any mean words pass your lips if Anthony Kennedy may eventually be judging your case.)

I’ve taken more time than intended hyperlinking to terms of art and cases that not all readers may know, so I’ll wrap up.

Bauerlein, the non-lawyer, was delighted to think this might be decided on free exercise of religion grounds. I disagree. I would consider it remarkable and disheartening if Jack Phillips won on “an oopsie!”—catching the Colorado Civil Rights Commission in an inconsistent application of its facially neutral and exceptionless law—because that would be a narrow decision where I’d like, the cases that have built up in this area need, and the Supreme Court normally delivers, something bigger and more definitive than “this one Colorado law was applied to Jack Phillips in an nasty and inconsistent, and therefore unconstitutional, manner.”

The country doesn’t get a lot of guidance out of that on how to behave in the future, and what guidance it does get tends toward “use some guile and maintain plausible deniability when you stick it to Christian bigots.”

But if Colorado’s “oopsie” prompts overruling of Antonin Scalia’s nadir, his new free exercise test in Employment Division v. Smith, and restoration of the status quo ante, the Wisconsin v. Yoder free exercise test, I would be stunned and very, very happy.

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Some succinct standing advice on recurring themes.

Where I glean stuff.

Warlock Hunts (and lesser voices)

In the space of about 24 hours I encountered three contributions, not necessarily toward a “solution,” but at least toward perspective, on the sexual harassment tsunami.

The most prominent and lengthiest was Claire Berlinski’s The Warlock Hunt at The American Interest (metered paywall; one freebie per month).

As the title foreshadows, she thinks things have gone too far. Excerpts:

Mass hysteria has set in. It has become a classic moral panic, one that is ultimately as dangerous to women as to men.

It now takes only one accusation to destroy a man’s life.Just one for him to be tried and sentenced in the court of public opinion, overnight costing him his livelihood and social respectability. We are on a frenzied extrajudicial warlock hunt that does not pause to parse the difference between rape and stupidity. The punishment for sexual harassment is so grave that clearly this crime—like any other serious crime—requires an unambiguous definition. We have nothing of the sort.

In recent weeks, one after another prominent voice, many of them political voices, have been silenced by sexual harassment charges … Some of the charges sound deadly serious. But others—as reported anyway—make no sense. I can’t say whether the charges against these men are true; I wasn’t under the bed. But even if true, some have been accused of offenses that aren’t offensive, or offenses that are only mildly so—and do not warrant total professional and personal destruction.

The things men and women naturally do—flirt, play, lewdly joke, desire, seduce, tease—now become harassment only by virtue of the words that follow the description of the act, one of the generic form: “I froze. I was terrified.” It doesn’t matter how the man felt about it. The onus to understand the interaction and its emotional subtleties falls entirely on him. But why? Perhaps she should have understood his behavior to be harmless—clumsy, sweet but misdirected, maladroit, or tacky—but lacking in malice sufficient to cost him such arduous punishment?

In recent weeks, I’ve acquired new powers. I have cast my mind over the ways I could use them. I could now, on a whim, destroy the career of an Oxford don who at a drunken Christmas party danced with me, grabbed a handful of my bum, and slurred, “I’ve been dying to do this to Berlinski all term!” That is precisely what happened. I am telling the truth. I will be believed—as I should be.

But here is the thing. I did not freeze, nor was I terrified. I was amused and flattered and thought little of it. I knew full well he’d been dying to do that. Our tutorials—which took place one-on-one, with no chaperones—were livelier intellectually for that sublimated undercurrent. He was an Oxford don and so had power over me, sensu stricto. I was a 20-year-old undergraduate. But I also had power over him—power sufficient to cause a venerable don to make a perfect fool of himself at a Christmas party. Unsurprisingly, I loved having that power. But now I have too much power. I have the power to destroy someone whose tutorials were invaluable to me and shaped my entire intellectual life much for the better. This is a power I do not want and should not have.

Revolutions against real injustice have a tendency, however, to descend into paroxysms of vengeance that descend upon guilty and innocent alike … This revolution risks going the way revolutions so often do, and the consequences will not just be awful for men. They will be awful for women.

Not long ago we firmly convinced ourselves that our children were being ritually raped by Satanists. In recent years, especially, we have become prone to replacing complex thought with shallow slogans …

Given the events of recent weeks, we can be certain of this: From now on, men with any instinct for self-preservation will cease to speak of anything personal, anything sexual, in our presence. They will make no bawdy jokes when we are listening. They will adopt in our presence great deference to our exquisite sensitivity and frailty. Many women seem positively joyful at this prospect. The Revolution has at last been achieved! But how could this be the world we want? Isn’t this the world we escaped?

Who could blame a man who does not enjoy the company of women under these circumstances, who would just rather not have women in the workplace at all? This is a world in which the Mike Pence rule—“Never be alone with a woman”—seems eminently sensible. Such a world is not good for women, however—as many women were quick to point out when we learned of the Mike Pence rule. Our success and advancement relies upon the personal and informal relationships we have with our colleagues and supervisors. But who, in this climate, could blame a venerable Oxford don for refusing to take the risk of teaching a young woman, one-on-one, with no witnesses? Mine was the first generation of women allowed the privilege of unchaperoned tutorials with Balliol’s dons. Will mine also be the last? Like so many revolutions, the sexual revolution risks coming full circle, returning us right where we started—fainting at bawdy jokes, demanding the return of ancient standards of chivalry, so delicate and virginal that a man’s hand on our knee causes us trauma.

So for Berlinski, a little sexiness in the workplace, and even (or especially) in one-on-one sessions is fun, and energizing, and only objectionable when it goes too far, the boundary of “too far” being about as clear as the famous “I know it when I see it” definition of obscenity. She is on the right track, though, when she writes of the tendencies of this kind of panic being bad for both men and women, albeit in different ways. The article is worth a full reading.

I included Berlinski on the “Mike Pence rule” (more properly the Billy Graham rule) specifically for the contrast to Tish Harrison Warren‘s An Open Letter to Men Who Broke the Billy Graham Rule, at The Well back in April, when the hot topic was not toxic lewdness but toxic prudery:

In light of the Vice President’s revelation that he does not eat meals alone with women (besides his wife) and the widespread discussion of the “Billy Graham Rule,” I wanted to take this opportunity to thank you for meeting with me — some of you years ago, some of you last week — to disciple me, befriend me, love me, and honor me as a fellow follower of Christ and as a human being.

So thank you.

You, men-who’ve-met-with-me-one-on-one, who’ve eaten with me, had coffee with me, mentored me, encouraged me, and befriended me — you have changed my life. I am a Christian because you poured into me. I am a pastor because you pastored me. I am, I hope, a better wife and mother because you are in my life.

You did not see me as a sexual threat to be avoided, but as a human being, even a sister. And you were safe. You never hit on me. You never made me feel weird or uneasy. If you ever struggled with sexual temptation, you’ve dealt with that by talking with your wife, male friends, or a counselor so that you could be a friend, brother, and pastor to women around you. Because of that, I have the gift of having men in my life who are trustworthy and who are true, dear friends.

So for Warren, who is pretty conservative if graded on a curve, there’s no perceptible sexiness in these one-on-ones, because there’s nobody here but us sincere Christians, who know how to sublimate any unwanted sexual feelings.

I don’t know what Warren would say today, in the midst of this alleged moral panic. I dare say her opportunities for one-on-ones would be reduced significantly at the moment. I don’t recall any Evangelical figures being nationally exposed in the current round of scandals, but there’s a regional offender (albeit of less exalted religious tradition than Warren), and Ravi Zacharias, who travels in somewhat the same Christianity Today circles as Warren, is pretty rueful about letting his guard down:

Today, Zacharias and his eponymous Ravi Zacharias International Ministries (RZIM) released their first statements specifically addressing a personal lawsuit involving a married woman who sent nude photos to the popular author and speaker …

“I have learned a difficult and painful lesson through this ordeal,” Zacharias said. “I failed to exercise wise caution and to protect myself from even the appearance of impropriety, and for that I am profoundly sorry. I have acknowledged this to my Lord, my wife, my children, our ministry board, and my colleagues.”

Last month, Zacharias settled a lawsuit with a Canadian couple he claimed had attempted to extort him over messages he had exchanged with the wife.

The federal lawsuit—which was filed by Zacharias, not the couple—alleged that his “friendly correspondence” with the wife evolved over the course of 2016 to her sending him “unwanted, offensive, sexually explicit language and photographs.” In April 2017, the couple sent a letter through their attorney demanding millions of dollars in exchange for keeping the messages a secret.

“In the alternative of protracted and public litigation, [the couple] will sign a release of you and your church and ministry in exchange for a certified check in the amount of $5 million,” stated the letter from the Bryant Law Firm ….

That seemingly extortionate demand would get my attention.

Finally, at Public Discourse, Mark Regnerus:

Recent revelations about sexual harassment, assault, and abuse underscore certain blunt realities about men, women, and sex. How can we confront those realities in a way that leads to less sexual violence?

He states and briefly elaborates “three blunt but essential truths:”

  • First, men’s sex drives are, on average, stronger and less discriminating than women’s.
  • Second, men have the upper hand in the contemporary mating market, even as—and partly because—women are flourishing economically and educationally. These are not criticisms; they are observations.
  • Third, women are usually physically smaller and weaker than men, and—as already noted—more discriminating in their sexual choices. Hence women are more prone to find themselves in situations of sexual risk with regard to men.

Regnerus then critically engages an early-2017 scholarly article that deals with male sexuality in terms of “fly zones” and “no-fly zones, concluding:

These are liminal times in male-female relationships. Treating men as if only threats of shaming, expulsion, and litigation will beat back their urges is not only an erroneous theory, Fleming asserts, “it’s downright dysfunctional for everyone, because it distorts the rules in such a way as to disorient men and women alike.”

Women should not silently put up with men’s boorish and aggressive expressions of sexual interest. But as we combat that we must ensure that men and women do not come to fear and suspect (and then avoid) each other, where we lean on law and regulation over convention. Now is the time for men to exhibit—and women to reinforce—norms of interaction that respect women’s dignity, bodily integrity, and security, while preserving the capacity to express (when appropriate) romantic interest and handle rejection. It is not rocket science. We know how to do this.

I also thought the “fly zone” versus “no-fly zone” model was interesting, but couldn’t help but notice the ambiguous areas:

Fleming argues that it’s the border between “fly” and “no fly” zones—a party, for example—that is most apt to foster confusion and tempt risk, not the classroom or the bus. This is the social space in which most problems, ranging from sexual badgering to diminished consent to downright rape, are apt to occur. Comparable dynamics can occur at after-work gatherings, professional conferences, on a first date, or after texting to “hang out.”

Cf. Claire Berlinski’s “drunken Christmas party” in Oxford.

Considering some of the points Regnerus made as he moved toward his conclusion, his confidence that “We know how to do this” seems a nonsequitur. I’m not at all sure we do know how to do this any more, unless he means that all married men should accumulate a year of rust on their courting skills every calendar year, which might be a good place to start.

Pre-Publication Update: An NPR poll featured at the top of Thursday’s All Things Consider reports 86% Americans support “zero tolerance for sexual harassment.” I trust that these lemmings feel virtuous for having no tolerance whatever for something they almost certainly cannot define. NPR made no effort to define it, either.

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I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.

Masterpiece Cakes thoughts

The consensus, with a few dissenters, is that the oral arguments Tuesday portend victory for Jack Phillips, proprietor of Masterpiece Cakes. I’m going to assume that for purposes of this blog.

What worries me now is how he will win. There are a number of options, but I’ll just mention three.

  1. The Colorado Civil Rights Commission (or whatever they call it) was biased against Phillips and its decision can’t stand. This has the benefit of being true; the bigotry of one commissioner was manifest. But by the time a case gets to the Supreme Court, who wins this particular case is barely relevant; the case now is about principles that are going to govern cases nationwide. The court never would have taken the case if it was only about Jack Phillips and the Colorado commissioners. It would be terrible if the only result of this case was “commissioners shouldn’t utter their bigotries aloud.”
  2. The Colorado Civil Rights Commission has applied its facially “neutral law of general application” (terms of art) with “an evil eye and uneven hand” (anachronistic terms of art), so the law is unconstitutional as applied to Phillips’ bona fide religious scruples. In other words, he wins under the free exercise of religion clause. This result would be mildly surprising, but the evil eye and uneven hand appear to be there. A provocateur asked another baker for a bible-shaped cake with some of the “clobber passages” inscribed on it. The baker refused. The provocateur filed a discrimination complaint, which he lost, partly because the baker had served other Christians (proving he’s not anti-Christian), though the Commission ignored that Jack Phillips served other homosexuals. (Transcript of Oral Arguments 58-59) This tends de facto to negate “general application,” so a subtle escape route of Employment Division v. Smith opens for Jack Phillips (and presumably for others in Colorado). I’d still hope against this outcome, which would sort of be limited to Colorado, with a cautionary note to other states to enforce their law equally, across-the-board. It’s an invitation to lots more litigation and to set-ups like the Christian provocateur with his clobber passage cake.
  3. Jack Phillips reasonably believed that Craig and Mullins were seeking one of his custom-designed wedding cakes, and the Colorado Civil Rights Commission denied him discovery from Craig and Mullins to prove that. A wedding cake is primarily a festive, celebrative central ornament in wedding receptions, only secondarily food. An artist or artisan cannot constitutionally be compelled to create fruits of his artistry in celebration of something he chooses not to celebrate for any reason. In other words, he wins under the free speech clause (which protects against compelled artistic expression).  This has seemed Phillips best shot since I first learned of the case. It was in the first sentence out of Kristen Waggoner’s mouth on Phillips’ behalf (although she noted that his objection to speaking was religious). One of the little ironies is that free speech has become a powerful protector of dissident Christians who may have weak free exercise cases thanks to our brother, the late Justice Scalia, who took leave of his senses one day and penned Employment Division v. Smith (which turned out to have some escape routes, so it wasn’t as bad as initially feared). The “problem” here is Justices agonizing, some probably insincerely, about “where to draw the line.” That will be the interesting analysis if Phillips wins on free speech/freedom from compelled expression, which I think is the best analysis, but then I’d probably draw the line very, very protectively against compelled speech—maybe further than most of my readers.

Update: I regret rushing this blog, because it made me forget my favorite way Jack could win.

The court could decide that Jack did not refuse service to anyone because of their sexual orientation, but because they wanted him to adorn a same-sex wedding reception (with a custom creation, Jack believed).

Like Option 1, above, this has the virtue of being true. But Colorado equated that with discrimination on the basis of sexual orientation because same-sex marriage is really, really closely correlated to sexual orientation. Thus did it refuse categorically to recognize a vital distinction, thus extending the legislature’s law beyond what it may have intended and setting up this constitutional clash.

There’s some reason to think that may be where pivotal Justice Kennedy is headed.

MR. COLE: … the public accommodations law does not say you must treat everybody; it says you cannot discriminate on the basis of protected categories.

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think
they should have a marriage because that’s contrary to my beliefs. It’s not -­

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity. It’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s – –  your identity thing is just too facile.

(Transcript of Oral Arguments 86-87)

I like this possibility because it seems to me that:

  • It leaves intact the core protection of persons against discrimination because of their sexual orientation. (I’ve never been convinced that’s more that a vanishingly rare problem in the realm of public accommodations, but if it is a problem, this covers it.)
  • It gets to the nub of Jack Phillips’ objection and validates it. Jack’s sincere professions of willingness to serve all people, and history of serving all people, got lost in the politics of this issue, with him getting branded just another Christianist homophobe. That was false and, yes, facile. Jack deserved better.
  • It avoids all the parade of horribles and slippery slopes that attend the “what’s artsy enough and what isn’t?” questions. Nobody, artist or not, is discriminating against persons as person if they decline to help provision an event they find objectionable.

Yes, in a few corners of the country, it may be hard for same-sex couples to get vendors for their celebrations, as an amicus argued. But custom cakes, floral arrangements, wedding invitations, photographers and such are “not goods or services like lodging or transportation necessary for full participation in public life,” as Rabbi Dovid Bressman argued in a friend of the court brief.

That gets us back to the heart of this case: the couple’s sense of entitlement. I don’t think that sense commands validation men and women of goodwill.

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I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.


A new take on Masterpiece Cakes

Professor Steven Smith has very skillfully laid out what the Masterpiece Cakes case in the Supreme Court is really all about. It has a helpful review of he evolution of anti-discrimination laws, about which more later.

Then in his second part, Smith adds an angle from the academic literature of free speech to add a dimension that I, a very interested amateur, had not appreciated:

In a thoughtful essay entitled “Who Cares Whether Cake-Baking is Expressive?” NYU Professor Rick Hills argues that the expressive quality of Jack Phillips’s cakes should be constitutionally irrelevant. Appealing to writings of (then) Professor Elena Kagan and Yale Professor Jed Rubenfeld, Hills contends that what should matter for First Amendment purposes is “governmental purpose, not private burdens.” …

And so we have to ask: why is government (in collaboration with and on behalf of same-sex couples) going after the bakers and florists and photographers in the marriage cases?

The Centrality of Expression

The question takes us back to the argument of yesterday’s essay. We saw there that in the litigated cases, the states and the same-sex complainants have not primarily relied on the contention that a Christian merchant’s refusal to assist with a same-sex wedding has deprived the couple of any needed product, service, or opportunity. In Masterpiece Cakeshop, another baker supplied complainants with a wedding cake for free; in Arlene’s Flowers, the case of the Washington florist that is currently on appeal to the Supreme Court, the same-sex couple claimed and received $7.91 in damages for the cost of driving to another florist. That was not why the couple and the state brought the lawsuit.

So why were these suits brought? Advocates are often forthright in explaining that these cases are not mainly about material deprivations, which are likely negligible or nonexistent, but rather about the “dignitary harm” or offense suffered when a same-sex couple is in effect told that a merchant regards their marriage as morally wrong or contrary to God’s will.

That claim may be perfectly sincere. But it amounts to a complaint that the couples feel injured by the communication of a message of disapproval. The injuries, in short, are primarily or exclusively expressive in nature. And the remedies sought by the plaintiffs and granted by the courts have likewise been expressive in their content and purpose. Objecting merchants have been ordered to assist with same-sex weddings in the future—not because their services are needed, but because complainants and the states seek to compel them to participate in, to borrow language from the Colorado court, “celebrat[ing] . . . same-sex wedding[s].”

The title of part 2 is “Why the Government Shouldn’t Force Bakers—Or Anyone—to Express Support for Same-Sex Marriage,” and I agree that the government’s purpose in applying nondiscrimination laws to these baker has been, precisely (and unconstitutionally) to compel them to express a message of approval of same-sex marriage. That must not be allowed to stand.

Do read both parts, because part 1 helps to show how an early non-discrimination purpose of assuring that people are not denied needed services has morphed into assuring that people don’t hear a message of disapproval before readily getting their needed services elsewhere.


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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.