Aggregator: What does Masterpiece Cakeshop portend?

Social conservatives continue poring over the Supreme Court’s Masterpiece Cakeshop decision to discern what it is:

  1. A punt, pure and simple. Only this and nothing more.
  2. A punt with deliberate hints of better things to come.
  3. A punt with deliberate hints of worse things to come.
  4. A punt with inadvertent hints of better things to come.
  5. A punt with inadvertent hints of worse things to come.
  6. Something else.

Herewith an aggregation, with more substance at the end.

  1. David French, attorney, both immediately and later in rebuttal of his less sanguine colleague. I don’t disagree with French lightly, but I’m quite skeptical of his second, third and fourth points in the second piece.
  2. Andrew McCarthy, that less sanguine colleague, who alone in this pack is okay with Justice Scalia’s rewriting of free exercise jurisprudence.
  3. Rod Dreher, stunned and grateful that we won, no matter how small.
  4. Erin Manning, who intuits some things so simple that only an intellectual (or a lawyer) could miss them (have we really expanded basic, fundamental human rights and needs to include wedding cake? Seriously?).
  5. Robert P. George, who discerns at least a clear principle that you don’t have to leave your religion at home when you go to work.
  6. Darel E. Paul (“Only profound naïveté can spin the majority decision as a victory for religious liberty.”).
  7. Hadley Arkes, who gives a law-savvy but essentially philosophical critique on the whole gang, the 7 as well as the 2, as relativists.

My favorite I’ve held back until now. R.R. Reno is no lawyer but has penetrated the tectonic shifts that may be taking place as “anti-discrimination” tries to grow in foreign soil as the putatively oppressed have now become elites engaged in punching down. (Caveat: Reno’s short article may be so allusive that it will “go over your head” if you haven’t been immersed in these issues for some time already. I can’t tell because I have been immersed, particularly since Chai Feldblum said that in almost every clash between gay rights and religious freedom, gay rights should win.)

And Marc Randazza, who I think is an irascible libertarian of some sort rather than a conservative, takes a scatological swipe at Jack Phillips but then correctly affirms that Phillips should have won on substantive grounds, with no dithering about petty anti-Christian Colorado Civil Rights Commissioners.

That was my preferred outcome, and one easily enough justified if we didn’t have Justices so tainted by knee-jerk progressivism that they refuse to acknowledge the reasonableness of the belief that a wedding cake symbolizes that a real wedding has occurred, a real marriage begun, and the one needn’t be a bigot to question that in the case of two men or two women “marrying.” Indeed, in Chestertonian terms, those justices are the real bigots:

Bigotry is an incapacity to conceive seriously the alternative to a proposition.

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Masterpiece Cakeshop

Some fairly preliminary thoughts on today’s Supreme Court decision.

Religious liberty advocates got the opinion they wanted. Unfortunately, it was a concurrence by Justice Thomas with Justice Gorsuch joining. More on that in a moment.

Justice Kennedy’s much narrower majority opinion is a disappointment not only because it’s not what my side (or the other) was hoping for but because it dodged the core issues with some hand-waving that I view as disingenuous.

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.

That’s uncommonly stupid even for Anthony Kennedy. Few people who watch a Irish ethnic pride parade in Boston, or people watching a lewd dance, or people watching flag-burning, or any number of other things, will think they’re watching exercises of free speech. So what?

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service.

It’s true that the parties disagreed, but their disagreement was about nuances that needn’t be resolved as the core issue was resolved. As justice Thomas points out in his concurrence, the Colorado Courts resolved that question sufficiently to permit a ringing decision on free speech grounds:

The Court does not address this claim because it has some uncertainties about the record.  See  ante, at 2.  Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (includ­ing a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips’ favor.  The court described his conduct as a refusal to “design and create a cake to celebrate [a] same-sex wedding

Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expres­sive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect.  This reasoning flouts bedrock prin­ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.

(Emphasis added) And comment he does.

Of course, conduct does not qualify as protected speech simply because “the person engaging in [it] intends thereby to express an idea.” United States v. O’Brien, 391 U. S. 367, 376 (1968). To determine whether conduct is suffi­ciently expressive, the Court asks whether it was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 294 (1984). But a “ ‘particularized message’ ” is not required, or else the freedom of speech “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U. S., at 569.

The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his crea­tions can be seen on Masterpiece’s website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).
Phillips is an active participant in the wedding celebra­tion. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that “a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.” App. 162. Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, “[w]edding cakes are so packed with symbolism that it is hard to know where to begin.” M. Krondl, Sweet Invention: A History of Dessert 321 (2011 (Krondl); see also ibid. (explaining the symbol­ism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is “so stand­ardised and inevitable a part of getting married that few ever think to question it.” Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. “A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wed­ding and afterwards.” Ibid. Although the cake is eventu­ally eaten, that is not its primary purpose. See id., at 95 (“It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings”); id., at 97 (“Nothing is made of the eating itself ”); Krondl 320–321 (explaining that wedding cakes have long been described as “inedi­ble”). The cake’s purpose is to mark the beginning of a new marriage and to celebrate the couple.

Ac­cording to the individual respondents, Colorado can com­pel Phillips’ speech to prevent him from “ ‘denigrat[ing] the dignity’ ” of same-sex couples, “ ‘assert[ing] [their] inferiority,’ ” and subjecting them to “ ‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

(Emphasis added)

That the court could not muster a 5-4 majority for such an opinion, but relied on a couple of technicalities (so to speak — nobody thought the fairness of the proceedings was the core issue in the case) I fear as a bad omen.

But omen’s are just omens. I thankfully could be wrong. David French is more upbeat.

Both sides surely will be mining the opinions in the abstract and, all too soon, in the context of another case akin to this. I only hope they will leave Jack Phillips alone now, but the way this was decided, he’s at risk of targeting as soon as he resumes offering wedding cakes to those who are actually entering into real marriages.

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Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Place. Limits. Liberty.

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Megan Barry – for the record

The ‘s so-called “Nashville Statement” is poorly named and does not represent the inclusive values of the city & people of Nashville

(@MayorMeganBarry, 8/29/17)

Article 2
WE AFFIRM that God’s revealed will for all people is chastity outside of marriage and fidelity
within marriage.
WE DENY that any affections, desires, or commitments ever justify sexual intercourse before or outside marriage; nor do they justify any form of sexual immorality.

(Nashville Statement)

Nashville Mayor Megan Barry resigned Tuesday after pleading guilty to a felony that stemmed from an investigation into an affair she had with an officer on her security detail.

(Wall Street Journal 3/7/18)

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It is not bigotry to be certain we are right; but it is bigotry to be unable to imagine how we might possibly have gone wrong.

Bigotry is an incapacity to conceive seriously the alternative to a proposition.

A man … is only a bigot if he cannot understand that his dogma is a dogma, even if it is true.

(G.K. Chesterton) Be of good courage, you who are called “bigots” by those who are unable to conceive seriously the alternatives to their dogmas.

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Cultural Conformity

A female teacher at a Catholic school married a woman and got fired. Why should anyone be surprised that a Catholic school follows Catholic teachings? The answer’s obvious, of course. National news organizations are populated with people who loathe orthodox Christian teaching on sexual orientation and identity, and stories like this are simply advocacy disguised as reporting. They know news articles ratchet up pressure. They know members of the community respond to negative coverage. And, sure enough, in the middle of the AP article linked above is this depressing detail:

Several parents say they were surprised and upset at Morffi’s firing, which they learned of in a letter from the school Thursday evening. About 20 parents went to the school Friday morning to demand an explanation.

Over the long term, this is the real threat to religious freedom. It’s not, ultimately, the government. It’s the combination of media and cultural pressure — of external and internal anger — that slowly but surely bends church institutions to its will. Talk to thoughtful pastors and religious leaders, even in ruby-red communities, and they’ll concur.

Here’s the interesting thing: Some of the casual Christians who’ve fled the unsatisfying Mainline are joining more traditionalist churches and schools without changing their beliefs. They don’t become more theologically orthodox, they just crave the benefits of the more orthodox communities. Once in their new religious home, they exert the same kind of pressure for cultural conformity that helped kill the churches they fled. It’s the religious analog of the well-known phenomenon of blue-state Americans leaving their high-tax, heavily-regulated states for red America and promptly working to make it more like the place they left.

(David French)

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Abuses of power

Rod Dreher revisits for the third time the Edgardo Montara case from the 19th-centry papal state that included Bologna, Italy. He quotes a Patheos column by Eve Tushnet, which quote includes this:

I am not sure I’ve seen any discussions of Catholic “postliberal” politics which acknowledge the need for any peaceful social order to accept and accommodate disharmony. If your temporal political goal is public harmony you can either a) make a lot of compromises with unbelief and sin for the sake of peace or b) impose order by force, thus creating a lot more chaos, cruelty, and sin … Any reasonably okay society will have a lot of uncriminalized sin and a lot of unpunished crime, because the things you need to do to root out and punish sin will themselves involve sinful abuses of power.

That’s a great summary of why, some 50 years ago, I supported decriminalization of homosexual acts between consenting adults. But since I believe, now as then, that those acts are sinful, I’ve been unwilling to go further into things like protected class status.

I’m not alone in that. But the nation is moving toward suppressing as intolerable the disharmony folks like me create. Dreher:

Here’s the thing that is very hard to get progressives to understand: liberalism today is turning illiberal in a way that resembles the Papal States of Pio Nono. Many on the left don’t see it because they are caught up in the relentless logic of virtue. Let’s step away from the religion aspect for a second. Have you been watching the progressive mob savaging Margaret Atwood — Margaret Atwood! — as a traitor to feminism for having said publicly that a Canadian academic punished for sexual harassment was denied due process? The Handmaid’s Tale author was a hero to feminists yesterday, but today she’s a monster because she deviated ever so slightly from the Virtuous Position. Extremism in the pursuit of progressive virtue is no vice …

Progressive militants are thrilled to throw dissidents from their purity project on the metaphorical bonfire, torching careers and reputations for the sake of Justice. And if one protests that this or that person was treated unfairly, well, mistakes might be made, but maybe it’s time that the Enemy (males, whites, straights, religious believers, et al.) knows what it feels like to be oppressed. That’s the rationale.

I have no doubt that there are more than a few progressives who read the controversy over Edgardo Mortara’s case and are rightly appalled, but who would tomorrow cheer the State for removing a child deemed transgender by experts from the home of his Christian parents who disagree.

Well of course they would! Gender is indelible, like baptism used to be superstitiously described, and the state is obliged to raise a boy-girl as a girl, as the Papal states thought they must raise a baptized Christian as Christian. Isn’t that obvious!?

Contemporaneously, Dreher and two others forecast other suppressions that may be more imminent.

First, Alan Jacobs sees Christian colleges and universities being destroyed by loss of accreditation for resisting the Zeitgeist:

As I have noted in another venue, calls are already being made for Christian institutions to lose their accreditation also. Many Christian colleges will be unable to survive losing federal aid for their faculty and students alike; … a loss of accreditation is likely to be the death knell for all of them, because that will dramatically reduce the number of students who apply for admission. Students with degrees from unaccredited institutions are deemed ineligible for almost all graduate education, and for many jobs as well. How many parents, even devoutly Christian parents, even those few who can afford it (given the lack of federal student aid), will be willing to pay to send their children to institutions if that narrows their future horizons so dramatically? Almost none, I suspect.

The people who argue that Christian institutions should support the modern left’s model of sexual ethics or else suffer a comprehensive shunning do not think of themselves as opponents of religion. And they are not, given their definition of religion, which is “a disembodied, Gnostic realm of private worship and thought”. But that is not what Christianity is. Christianity intrinsically, necessarily involves embodied action in the public world.

Carl Trueman foresees trouble from Title IX and pressure to revoke tax exemption:

The specific point of conflict is likely to be (once again) Title IX legislation that prohibits sexual discrimination at any institution of higher education receiving federal funding. The law does allow an exemption for religious organizations such as colleges and seminaries, an exemption to which I shall return. What is worrying is the increasing elasticity of the legislation, which was extended under President Obama to include transgenderism. That “Dear Colleague” letter has since been rescinded, but the underlying cultural commitments that made Title IX expansions plausible remain in place.

Some colleges—for instance, Hillsdale and Grove City—stand apart from federal funding. Such places thus seem relatively safe. But are they? There is another point of vulnerability: the 1983 Supreme Court ruling in Bob Jones University v. United States. This ruling denied tax-exempt status to Bob Jones University because of policies regarding interracial dating that were judged contrary to a compelling government policy. The text of the decision can be found here, but the key passage reads as follows:

The Government’s fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs. Petitioners’ asserted interests cannot be accommodated with that compelling governmental interest, and no less restrictive means are available to achieve the governmental interest.

However we may cheer the particular result of the Bob Jones case, the implications unfolding in today’s climate are concerning. Replace “racial” with “sexual” in the paragraph above, and the point is clear.

The usefulness of Title IX and Bob Jones for the sexual-identity revolution lies precisely in the fact that most Christians see them as sound in what they were originally meant to accomplish, even as some might cavil at their heavy-handed application in after years. In a world where the law increasingly seems to exist not to protect minority opinion but to impose the sexual or identitarian taste du jour, the uses of these laws are increasingly sinister. Yet their origins make them hard to oppose with any cultural plausibility. For this reason, the religious exemption in Title IX will, I suspect, either fall or become so attenuated as to be in practice meaningless.

Dreher in a separate blog elaborates Trueman’s point:

Trueman points out a truth that far, far too many Christians refuse to acknowledge: that the political assault on orthodox religious institutions is happening because American culture has radically changed. Fighting politically and legally are necessary, but ultimately not sufficient to save us, because we increasingly don’t have the people with us. Writes Trueman, “It is the heart that must change if arguments are to carry any weight. And only things that go that deep will avail us at this time.”

But Dreher is getting used to being ignored:

I’ve been thinking about that all weekend, and how unprepared American Christians are for it. We really do labor under the self-indulgent illusion that It Can’t Happen Here. Oh yes, it most certainly can — and it is.

(Emphasis added) How can people be so insensate? A commonly-identified culprit is secularism, but Dreher names two more:

The other day, I had an e-mail exchange with a prominent scholar who studies religion in America. It’s not part of his public profile, but he happens to be a believing Christian. He was extremely pessimistic about the situation here, given the long-term data he is seeing about how the advance of secularism, consumerism, and individualism is routing belief.

(Emphasis added)

But some of that routed belief thinks it’s still faithful. We have met the enemy and he is, if not us, at least among our ranks. We will, in due course, have those routed believers held up as the truly exemplary believers.

We need to tolerate disharmony, as I think was done with decriminalization of sodomy, but that’s not where we seem to be headed, and this time I and mine are going to be the stigmatized.

If you’re a faithful and orthodox Christian, you are, too.

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“No man hath a velvet cross.” (Samuel Rutherford, 17th century Scotland)

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What is “conservative”?

Can I still call myself conservative?

The answer depends on your definition. Here’s one I’ve always liked: “The central conservative truth is that it is culture, not politics, that determines the success of a society,” said the late Daniel Patrick Moynihan. To which he added: “The central liberal truth is that politics can change a culture and save it from itself.”

Conservatives used to believe in their truth. Want to “solve” poverty? All the welfare dollars in the world won’t help if two-parent families aren’t intact. Want to foster democracy abroad? It’s going to be rough going if too many voters reject the foundational concept of minority rights.

And want to preserve your own republican institutions? Then pay attention to the character of your leaders, the culture of governance and the political health of the public. It matters a lot more than lowering the top marginal income tax rate by a couple of percentage points.

This is the fatal mistake of conservatives who’ve decided the best way to deal with Trump’s personality — the lying, narcissism, bullying, bigotry, crassness, name calling, ignorance, paranoia, incompetence and pettiness — is to pretend it doesn’t matter. “Character Doesn’t Count” has become a de facto G.O.P. motto. “Virtue Doesn’t Matter” might be another.

Trump demands testimonials from his cabinet, servility from Republican politicians and worship from conservative media. To serve in this White House isn’t to be elevated to public service. It’s to be debased into toadyism, which probably explains the record-setting staff turnover of 34 percent …

Conservatives may suppose that they can pocket policy gains from a Trump administration while the stain of his person will eventually wash away. But as a (pro-Trump) friend wrote me the other day, “presidents empower cultures.” Trump is empowering a conservative political culture that celebrates everything that patriotic Americans should fear: the cult of strength, open disdain for truthfulness, violent contempt for the Fourth Estate, hostility toward high culture and other types of “elitism,” a penchant for conspiracy theories and, most dangerously, white-identity politics.

This won’t end with Trump. It may have only begun with him. And Trump’s supporters may wind up proving both sides of Moynihan’s contention: not just that culture is what matters most, but that politics can still change it — in this case, much for the worse.

(Bret Stephens, Why I’m Still a Never-Trumper)

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Revival isn’t inevitable

It brought to mind a conversation I had last night, out with friends. We were talking about the degeneration of stable ideas of family, sex, and gender. One of my friends, a lawyer, cited Stein’s Law: “Whatever can’t go on, won’t.” His point is that the gender ideology madness is bound to burn itself out, because it is incompatible with reality, and therefore unsustainable, in the same sense that communism was unsustainable. I suspect he’s right about that, but it’s going to take a long time for that to happen, because gender ideology fits so perfectly with the basic ideology of our time: autonomous individualism, which is to say, Anthonykennedyism: The belief that one is entitled to define one’s own concept of existence, of meaning, or the universe, and of the mystery of human life.

In response to this, I pointed out that Stein’s Law has not predicted social conditions for the black underclass in America. Since midcentury, the black unmarried birth rate has soared. When the Moynihan Report came out in the 1960s, 25 percent of black births were to unmarried women — far higher than the white rate. Now the black rate, as I said, is over 70 percent, and the white rate is higher than the black rate in the 1960s.

The bad social outcomes of this phenomenon have not retarded its growth for any demographic group. As out-of-wedlock childbearing becomes intergenerational, so does poverty …

It’s straight out of Charles Murray’s worst nightmare …

These are the people middle class and upper middle class folks don’t see. They don’t come into this world ineducable or doomed to dysfunction. They are crippled mostly by culture. The mystery is why these cultural habits persist, even though the outcomes for the children raised in it are so poor. According to the theory, people should recognize that living in this particular way means suffering and misery, so they will change their views and their way of life to live in a more sensible way. But that clearly does not happen often, or at least not often enough. Why?

The point I’m trying to make is that the belief that cultural revival is inevitable, because people will inevitably turn away from destructive ideas and behavior, strikes me as insupportably optimistic. People are not reliably rational actors. Civilization is a far more fragile thing than we suppose ….

(Rod Dreher)

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