Lorrie Smith of 303 Creative in Colorado would like to expand her website-design business to wedding websites, but she realizes that she’ll eventually get, and will decline for reasons of conscience, requests for same-sex wedding websites. Colorado antidiscrimination authorities say that’s a no-no. The case is before SCOTUS, awaiting a decision within a month or so.
Hurt Feelings, Conscience, and Freedom
Rick Plasterer, previously unknown to me, lays out some of the social history behind such cases (with an obvious bit of ax-grinding):
Faced with a court intent on protecting freedom of religion and speech, the Left has turned to the claim that civil rights law, and behind it, the Fourteenth Amendment, mandates pro-active government measures to remove social stigma. This is really a very blatant effort to gain what social conservatives have complained about for years, the claim of a right not to be offended.
[S]ome research proposes that younger LGBT cohorts seem to be more sensitive to perceived stigmatizing than the older LGBT population. Given the large “snowflake” population in colleges and universities, this is not surprising. As a researcher critical of the consequences of the sexual revolution, Regnerus said he experiences much day-to-day stigma, but has learned to deal with it. The LGBT identifying population can and does deal with it as well. But pro-LGBT stigma research tends to deny “agency on the part of persons. It esteems collective action while implying personal passivity and an externalized locus of control.”
But although the claim to “dignitary harm” might be newly raised with LGBT liberation, the claim that there cannot be fundamental differences in society about ultimate things is old. Quoting Jean Jacques Rosseau’s “The Social Contract,” (1762), George observed that “America is stalked by an ancient fear: The creeping suspicion that ‘[i]t is impossible to live with those whom we regard as damned.’”
Rick Plasterer, Hurt Feelings, Conscience, and Freedom – Part 1.
First Amendment protections
One of my heroes, Robert P. George of Princeton, has weighed in on behalf of 303 Creative via an amicus brief:
Although the rights to free speech and the free exercise of religion are distinct and thus receive separate protection under the First Amendment, they are often intertwined. “[M]uch . . . religious speech might be perceived as offensive to some,” because faithful adherence to a religious tradition implies the acceptance of certain claims about objective truth and the concomitant rejection of certain conduct as morally inconsistent with that truth.
… the Supreme Court has consistently affirmed that the First Amendment protects even profoundly offensive forms of expressive conduct. See, e. g., Snyder, 562 U.S., at 447 (First Amendment protects group that picketed a soldier’s funeral bearing signs indicating their belief “that God kills American soldiers as punishment” for national sins); Virginia v. Black, 583 U.S. 343, 347–348 (2003) (affirming the right of the Ku Klux Klan to burn crosses at rallies); Johnson, 491 U.S., at 420 (holding a “State’s interest in preserving the [American] flag as a symbol of nationhood and national unity” did not justify a man’s criminal conviction for engaging in protected political expression by burning it). Hence, when a speaker’s message is explicit—as unmistakable in expressive intent as a twenty-five-foot-tall burning cross, for instance, Black, 583 U.S., at 349—it is clearly protected by the First Amendment. But Colorado’s argument would deny protection to far milder forms of speech, such as an artist’s refusal to design a product that promotes a message to which she objects.
The Supreme Court has ruled that “the First Amendment protects flag burning, funeral protests, and Nazi parades.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014). It would be an absurd jurisprudential result to rule that Ms. Smith could not, however, politely tell a couple that satisfying their request would conflict with her deeply held religious beliefs about marriage, and then direct them to a different service provider, without bringing the full force of Colorado law down upon herself.
Even if Ms. Smith’s refusal to provide website design services for same-sex ceremonies is deeply upsetting, her customers’ distress would still not justify coercion, because the dignity of both parties would be at stake. Ms. Smith could just as easily claim that Colorado’s attempt to commandeer her voice inflicts a “dignitary harm” upon her. By using its power to take from Ms. Smith the right to speak and disseminate her ideas in the public square, Colorado’s actions deprive Ms. Smith of “the right to use speech to strive to establish worth, standing, and respect” for her voice.
The First Amendment is a default setting against governmental restraints on speech that the State can overcome only with a compelling rationale. Allegations of “dignitary harm,” on their own, do not suffice, particularly when state action to remedy that “harm” only transfers the injury to a different party.
Robert P. George, Brief of Amicus Curiae in 303 Creative v. Elenis (bold added; link is to a PDF).
I added the boldface because the impossibility of avoiding dignitary harm to someone in situations like this is generally overlooked. Instead, Colorado has been deciding the cases based on an unspoken hierarchy of who’s cool and who’s not. Currently, sexual minorities are cool; Christians who believe that no real marriage is being solemnized when both parties are of the same sex (and that lament, not celebration, is in order) are not cool.
I’m pretty confident that SCOTUS is going to correct that, but it may contrive a narrow, niggling way to avoid hitting it head-on in Lorrie Smith’s case.
Advice to aspiring law students
- Law school opens doors
- Law school will not turn a Beta into an Alpha
- Big student loan debt closes doors. Want to work for the Innocence Project, or Becket Fund or the like? Fuggedaboudit!
- Unless you are a lifetime, Alpha, and you can’t imagine life apart from running with the big dogs, don’t take on heavy student debt on the assumption that you’ll have an Alpha job and Alpha compensation.
Items 1 and 3 have been a mantra of mine for several years. Items 2 and 4 just came to me very recently.
Better Late Than Never
The Texas House voted overwhelmingly on Saturday to impeach the state’s Republican attorney general, Ken Paxton, over accusations of bribery, using his position to enrich himself and a campaign donor, and abuse of public trust. The vote immediately removed Paxton—in his third term as A.G.—from office, pending a trial in the state Senate, where a two-thirds majority of the 31 senators is needed to convict him. If convicted, he would be barred from ever holding office in Texas again. This is the first time since 1917 Texas has impeached a state-wide office-holder.
If you subscribe, or are lucky enough not to hit the WSJ paywall, do read John C. Danforth, The Clarence Thomas Stories That PBS Refused to Tell
I like Andrew Sullivan’s take on trangenderism matters even better in distilled form:
A longtime reader quits the Dish:
Andrew, I cannot take your obsession with trans kids any longer. There are so many other issues you could be covering in your weekly essay: the debt ceiling, McCarthy’s tenuous leadership, China, baseball’s new rules, climate change, the Pope, and on and on. As the mother of a trans son who was miserable from age 8 on — and the friend of many other parents of trans kids who were miserable or even suicidal (one at age 6) — I cannot bear your ignorance and fear any longer. I will miss the VFYW and the contest.
I’m sorry you feel this way. As I said in the piece: “We should counter hostility and prejudice toward trans people. We should treat gay kids and kids with gender dysphoria with tenderness, care, and love.” But I confess I am obsessed when gay boys are having their heads filled with notions like “you are in the wrong body” if they are behaving like stereotypical girls, and when so many are irreversibly sterilized before they have even had a chance to grow up. Have you read Time to Think?
I’m also against crude bans on transing children. I’d prefer a European compromise whereby these medical experiments on children can continue — but only with carefully screened patients in rigorous clinical trials. But the American medical establishment refuses to acknowledge any concerns at all, and has recently abolished any lower age limit for transing children. They won’t even engage in debate.
I’m not entirely comfortable with Sullivan’s “European compromise,” because I think it is ontologically false that a female can be born in a male body or vice-versa.
But I’m not comfortable with categorical bans, either, because I recognize the reality of gender dysphoria (at levels a tiny fraction of what we’re currently seeing claimed) that in some cases is intractable and disabling. Social transitioning may give some of these unfortunate people adequate relief, but maybe not all of them. But it generally will not be until adulthood that “so intractable it needs medical intervention” becomes clear, and the social policy calculus changes with adults, doesn’t it?
If I’m wrong about that, the European compromise may be the best we’ve got in a screwed-up world.
Homosexual sex has been illegal in Uganda since the days of British colonial rule. No one’s been convicted under the statute since independence in 1962, but the rule provides license for routine repression …
This was essentially the US pattern in the 1960s as well.
It seems to me to be a principle all people of good will should support: there should be no criminal laws that are 99% unenforced, but get trotted out against people who get cross-wise with some prickly official.
In 2016, for example, the single most important intellectual work of the new right was an essay by Michael Anton entitled “The Flight 93 Election.” It began like this: “2016 is the Flight 93 election: Charge the cockpit or you die. You may die anyway. You — or the leader of your party — may make it into the cockpit and not know how to fly or land the plane. There are no guarantees. Except one: If you don’t try, death is certain.”
That’s right: The argument was that electing Hillary Clinton, a thoroughly establishment Democrat, would mean the end of America. It’s an argument that people never stopped making. In 2020, I debated the Christian author Eric Metaxas about whether Christians should support Donald Trump against Joe Biden. What did he argue? That Joe Biden could “genuinely destroy America forever.”
Catastrophic rhetoric is omnipresent on the right. Let’s go back to the “groomer” smear. It’s a hallmark of right-wing rhetoric that if you disagree with the new right on any matter relating to sex or sexuality, you’re not just wrong; you’re a “groomer” or “soft on pedos.” Did a senator vote to confirm Ketanji Brown Jackson for the Supreme Court? Then he’s “pro-pedophile.” Did you disagree with Florida’s H.B. 1557, which restricted instruction on sexuality and gender identity? Then “you are probably a groomer.”
But conservative catastrophism is only one part of the equation. The other is meanspirited pettiness. Traditional masculinity says that people should meet a challenge with a level head and firm convictions. Right-wing culture says that everything is an emergency, and is to be combated with relentless trolling and hyperbolic insults.
… And that brings us back to Mr. Hawley. For all of its faults when taken to excess, the traditional masculinity of which he claims to be a champion would demand that he stand firm against a howling mob. Rather, he saluted it with a raised fist — and then ran from it when it got too close and too unruly.
Of course, we don’t need to pay attention to David French since he’s a particularly notorious groomer who has gone to work for the Devil.
Back to The Flight 93 Election. When it was very fresh, I read it and admired the Chuzpah of daring the right wing to live up to its catastrophism (about the end of America if Hillary was elected) by voting for Trump. I thought the author risked undermining the catastrophism rather than exploiting it — another in a long line of bets I’d have lost by overestimating the American electorate.
Selected dramatis personae
The characteristic feature of the loser is to bemoan, in general terms, mankind’s flaws, biases, contradictions, and irrationality-without exploiting them for fun and profit.
Nassim Nicholas Taleb, The Bed of Procrustes
Mind you, I’m not denying I’m a loser by this vivid definition.
Professor [Rémi] Brague observed that even today many Europeans defend and fight for Christian morality because they see Christianity as a set of values rather than a religion. They are, as the professor noted, Christianists. They uphold the religion’s moral framework but do not believe in Christ. This paradox leads to a major challenge: Christian values, culture, and civilization cannot be sustained if we are cut off from Christ and tradition as the source.
Zsófia Tóth-Bíró, Shaping Europe with Real Values (The European Conservative)
That strikes me as a pretty good use of the term “Christianist” (Lord knows we’ve got plenty of them in the US), and consistent, I think, of how I’ve generally used the term.
Brief foray into politics
Overloading narrative circuits
I would prefer Trump didn’t become President. But if he became president with 40+ percent of the Hispanic vote and 25+ percent of the black vote, it would be a great thing for the country, finally overloading the circuits of the “everything is white supremacy” machine.
Wesley Yang on an ABC News/WaPo poll showing that 27 percent of black Americans would “definitely or probably vote for Trump in 2024.” (Quoted by Andrew Sullivan)
I’m afraid Linker’s right
DeSantis says: Look at all these great policies I’ve enacted!
Trump says: I’ll kick the shit out of your enemies!
And Republican voters may just prefer the latter.
Trump is first and foremost the vehicle of a right-wing revenge fantasy. Everything else follows from that.
Damon Linker, The Rise of the Anti-Ideological Right
For all its piety and fervor, today’s United States needs to be recognized for what it really is: not a Christian country, but a nation of heretics.
Ross Douthat, Bad Religion
We are in the grip of a grim, despairing rebellion against reality that imagines itself to be the engine of moral progress.
You can read most of my more impromptu stuff here (cathartic venting) and here (the only social medium I frequent, because people there are quirky, pleasant and real). Both should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it.