Category: Culture

Lawyerly blind spots

In my home state, covenants not to compete can be enforced against physicians by their former employers, but not against lawyers by their former employers. I don’t remember the details of the court’s rationale, but the feeling it left me is that lawyers, unlike doctors, are just too darned important to deny the public in a particular locale the ability to hire a guy who just hung out his shingle as a solo practitioner right next door to the big firm that hired him fresh out of law school, where he worked until last Friday.

Hold that thought.

A Kentucky print shop owner, whose business (Hands on Originals) includes printing T-Shirts, has once again succeeded, this time in the Kentucky Court of Appeals, in defending against a charge that he discriminated based on sexual orientation when he refused to print T-Shirts celebrating gay pride.

The outcome pleases and mildly surprises me. The surprise comes because similar cases have been losing oftener than not.

The courts are making a distinction “between material that is seen as fundamentally expressive, like a message-bearing T-shirt would be, and material not seen as expressive, such as a cake,” said law professor Eugene Volokh, a First Amendment expert at the University of California, Los Angeles.

(Wall Street Journal, emphasis added)

Some such distinction between expressive and non-expressive inevitably must be drawn, lest somebody, some day, discriminate in a routine retail transaction involving fungible goods, and get away with it by claiming the status of, say, Cash Register Artist.

And I’m not going to disagree with Prof. Volokh on what the courts are doing. Hands on Originals was being asked to print the words “Lexington Pride Festival 2012,” as well as graphics, for the event.1 (But I think some calligraphers, called on the inscribe words, are still in legal limbo.)

But I wonder if the courts haven’t been a bit provincial in deciding where to draw the line. Lawyers, sometimes called “mouthpieces,” famously deploy words—sometimes torrents of them—in their advocacy for clients. They don’t hand bouquets or cakes or photo albums to judges to show how wonderful and worthy of legal favor their clients are. They don’t dance, or sing, or engrave calligraphs, either, unless it’s an avocation. Their stock in trade is persuasive words.

As a result, I think lawyers can be pretty dense about nonverbal the ways humans express themselves and their worldviews.

Would we compel a portraitist to render a same-sex couple in oil paint? A musical combo to play the reception? An improv comedy troop to entertain with topical humor? A dancer to do an interpretive dance in the ceremony?

Yet I’ve heard lawyers—including lawyers who by religious conviction ought to be kindly disposed toward the conscience rights of artisans—just mindlessly mouthing the dogma that “if you hang out your shingle, you’ve got to serve everyone,” deaf to the suggestion multiple legal precedents that non-speech expressive activity is protected by the first amendment. And one of the Kentucky judges dissented. Sigh.

That’s a long way of saying that more of the bakers, photographers, florists and calligraphers, who cannot in good conscience promote or celebrate “marriages” that every major liberal politician in the U.S. purported to oppose twenty years ago, should prevail on the basis that they’re immune from being compelled to express, in pixel, petal or pastry, sentiments they don’t believe.

That the sentiments aren’t expressed in words doesn’t mean the activity isn’t expressive. And in contexts other than the latest variants on the sexual revolution, almost nobody has trouble seeing that. I dare say that Polycarp would rightly have refused to burn a pinch of incense to Caesar, even without the declaration “Caesar is Lord,” because the incense itself, in that context, expressed Caesar’s lordship.

But I’ve said this in the past, too:

For a number of craftsmen, though, the first thing that pops out of their mouth (and so, presumably, the first thing that came to mind) when asked to contribute to a same-sex “marriage,” is something like “I can’t do that. It would violate God’s commandments.”

I don’t think there’s anything shady about lawyerly recasting of that sentiment as objection to compelled expression. It’s kind of a matter of unpacking what the “it” is that “would violate God’s commandments.”

Better, though, if it were put like this: “I’m going to have to decline this commission. I don’t think I’d be happy with the result if I tried, and I doubt that you would be, either. It’s a worldview barrier.”

Note:

1 After I had written and scheduled this for publication, I saw that Professor Volokh had blogged on it and tipped his hand as an Amicus in support of Hands on Originals:

The government may not require Americans to help distribute speech of which they disapprove. The Supreme Court so held in Wooley v. Maynard, 430 U.S. 705 (1977), when it upheld drivers’ First Amendment right not to display on their license plates a message with which they disagree. The logic of Wooley applies equally to printers’ right not to print such messages.

The government’s interest in preventing discrimination cannot justify restricting Hands On Originals’ First Amendment rights. Hands On Originals is not discriminating based on the sexual orientation of any customer. Rather, its owners are choosing which messages they print. In this respect, the owners’ actions are similar to the actions of the parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), who also chose not to spread a particular message through their parade.

In Hurley, the Supreme Court noted that the state, in trying to force the organizers to include a gay pride group in a parade, was applying its antidiscrimination law “in a peculiar way”: to mandate the inclusion of a message, not equal treatment for individuals. And the Court held that this application of antidiscrimination law violated the First Amendment. The Commission’s attempt to apply such law to Hands On Originals’ choice about which materials to print likewise violates the First Amendment.

The Supreme Court has held that large organizations, such as cable operators or universities, might be required to convey messages on behalf of other organizations with which they disagree. But Hands On Originals is a small owner-operated company, in which the owners are necessarily closely connected to the speech that Hands On Originals produces. In this respect, the owners of Hands On Originals are much closer to the Maynards in Wooley v. Maynard, whose “individual freedom of mind,” secured the right not to help distribute speech of which they disapproved.

(Emphasis added) As many times as I’ve cited Hurley in such contexts as these (a parade is non-verbal expressive activity), I’m embarrassed that it didn’t come to mind spontaneously.

* * * * *

Men are men before they are lawyers or physicians or manufacturers; and if you make them capable and sensible men they will make themselves capable and sensible lawyers and physicians. (John Stuart Mill, Inaugural Address at St. Andrew’s, 1867)

“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)

Some succinct standing advice on recurring themes.

Evangelical schism?

Denny Burk and Andrew T. Walker on one side, David Gushee on the other, agree that there is no bridge to span the gap between their sides. The chasm is sexual. More specifically, in the euphemism du jour, it’s “LGBTQ inclusion.”

Gushee:

[Jonathan Merritt] referred to my own work, an October 2014 book called Changing Our Mind. In that book, which Jonathan helped make (in)famous with this interview upon its release, I argued step by step that it was possible (and, finally, imperative) for evangelical Christians to change our mind on many aspects of “the LGBTQ issue.”

…

A highlight of this epilogue includes my acknowledgment that common “evangelical” modes of reading scripture and undertaking moral discernment will never lead to a fully inclusive posture toward LGBTQ persons. But I then go on to make the case for why I believe those common evangelical modes are inadequate ways both of reading scripture and discerning moral truth.

…

I now believe that incommensurable differences in understanding the very meaning of the Gospel of Jesus Christ, the interpretation of the Bible, and the sources and methods of moral discernment, separate many of us from our former brethren — and that it is best to name these differences clearly and without acrimony, on the way out the door.

I also believe that attempting to keep the dialogue going is mainly fruitless. The differences are unbridgeable. They are articulated daily in endless social media loops.

Still, in Changing Our Mind, 3rd edition, to discharge my scholarly debts and to be fair to those who have sought to engage my thinking, I attempt one last foray into dialogue with my critics on the LGBTQ inclusion front.

There is nothing nasty in Gushee’s mode of expression, but read it carefully. He acknowledges differences over “the very meaning of the Gospel of Jesus Christ.” If he’s a sound Christian, his adversaries are not. Accordingly, he acknowledges that he left Evangelicalism 30 months ago for some unnamed other place, presumably “mainline” Protestant.

If an Evangelical had said this of Gushee first, in exactly the same tone, that substance would have been ipso facto “hate speech.” But all they need to do now is agree and elaborate Gushee’s point.

I’ll not quote Burk and Walker quite so extensively, but they do agree and elaborate. Burk:

It is time for folks on both sides of this debate to come to terms with just how much of a watershed this issue is. The evangelical movement is facing a moment of crisis over this issue. We are about to find out who is for real and who isn’t. We shouldn’t relish this moment as it reveals so much that is unhealthy in our movement. But neither should we shrink from it. We must contend for the faith once for all delivered to the saints (Jude 3). That is what the true church has always done. And that is what she must now do again.

Walker:

Gushee will no doubt disagree with my framing of the situation, but whereas he thinks he’s leaving evangelicalism, I believe he is abandoning the faith once and for all delivered to the saints (Jude 1:3). He is abandoning the very words of Jesus who upholds the sexual binary in Matthew 19:4-6. Those are not words haphazardly written or thrown around intended to score cheap internet points. But Gushee’s own words bear witness to the claim that he views his affirmation of LGBT relationships as constitutive to the Gospel of Jesus Christ. He views this issue as a dividing line in biblical interpretation, moral discernment, with the result that we — those who stand within two thousand years of teaching — are “former brethren.” I agree and reach the same conclusion as him, though with the opposite position.

My sympathies in this internecine Protestant quarrel are, of course, with Burk and Walker. But while I’m happy at where they’ve drawn the line, I’m honestly puzzled at why they drew it there and not elsewhere (other than aligning with the mutable center of Southern Baptist gravity).

Burk again:

The Side A/Side B approach wants to convince people that differences over these issues shouldn’t really divide us. Some Christians will affirm sexual immorality and some will not. In terms of doctrinal priority, the issue is more like baptism than the deity of Christ. No big deal. We are all Christians after all. Why can’t we all just get along?

There are a number of problems with this kind of reasoning, but I will mention just two:

(1) The scripture casts sexual immorality as a first-order issue. In fact, it treats all unrepented sin as a first order issue that prevents people from entering the Kingdom of God (1 Cor. 6:9-11). No matter what side you come down on in this debate, there can be no question that our conclusions will define how we understand the boundaries of the church. This is not a debate about adiaphora but about the essence of our faith. A church can no more accommodate both points of view than it can accommodate both light and darkness (2 Cor. 6:14-16) ….

Why is baptism “no big deal”? Why is sex “about the essence of our faith” a “first-order issue”? Is all unrepented sin a first-order issue? Then what does “first-order” issue ad to the argument that “unrepented sin” doesn’t cover? Why doesn’t Jonathan Merritt’s test of consistency with the Apostle’s Creed suffice? (Albert Mohler’s Call for Theological Triage, linked by Burk, is helpful, but Mohler doesn’t even rank sex in his taxonomy.)

Walker:

This is not a debate about eldership versus congregational authority, or internecine squabbles on how the end times will occur. This is about what the true church confesses. This is about truth and error. This is about eternal destiny.

Why are Church polity and eschatology not part of “what the true church confesses … about truth and error”?

My Protestant adiaphora detector is getting very old, and appears incapable of detecting these answers. Burk’s and Walker’s assertions seem like conclusions rather than premises even though they’re the right conclusions.

I just don’t know how they got there (or how Gushee got to where he is — not to mention how Jonathan Merritt, Rachel Held Evans and Jen Hatmaker came to substantially Gushee’s posiiton), because their explanations just lead to more questions.

I think I pretty well understand Robert A. J. Gagnon, Protestant though he be, but he’s not so much ranking truth as discerning it. (See here, too.)

This may signal a major Evangelical schism. The LGBTQ-affirming have got the cultural wind at their backs, whether or not they’ve decided that they’re not evangelical any more. Burk, Walker and their tribe are facing a tough slog. There will be great attrition in their ranks, I predict, precisely because the line between essentials and adiaphora can seem arbitrary.

I’ve beaten up my former tribe too many times already. I’m really worried that they, who in various ways have positioned themselves as the American paradigm of what it means to be a Protestant Christian, will not hold firm.

I’m not even going to suggest … well, that thing I’m not going to suggest about where there’s firmer ground.

UPDATE: On May 10, I made a few edits that don’t alter my meaning. I will now add one that does expand on what I was getting at:

The Burk/Walker side will experience attrition because the line between essentials and adiaphora can seem arbitrary and the spirit of the age, Moralistic Therapeutic Deism, says the greatest commandment is “Be Nice,” the spirit’s debased substitute for “love your neighbor as you love yourself.”

* * * * *

Men are men before they are lawyers or physicians or manufacturers; and if you make them capable and sensible men they will make themselves capable and sensible lawyers and physicians. (John Stuart Mill, Inaugural Address at St. Andrew’s, 1867)

“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)

Some succinct standing advice on recurring themes.