Category: Discrimination

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)

Some succinct standing advice on recurring themes.

Where I glean stuff.

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.

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.

 

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.

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.

American Churches’ Persecution

While conservative Christians have long complained about worsening societal hostility and persecution for their beliefs, there’s been little empirical evidence to gauge such claims—until now.

Sociologist George Yancey analyzed 30-plus years of data to track approval ratings for evangelical and fundamentalist Christians. His big takeaway: What has changed is not the numberof Americans who dislike conservative Christians, but which Americans.

According to American National Election Studies (ANES) questionnaires, the people who rated evangelical and fundamentalist Christians most negatively over the decades have consistently—and unsurprisingly—been politically liberal, highly educated, and less religious. But in recent years, particularly 2012 and 2016, they’ve shifted to become richer.

This trend means the people pushing back against conservative Christians now have bigger budgets to bankroll their viewpoint, argues Yancey.

American evangelicals “are clearly incorrect in the notion that hostility towards conservative Christians has increased over the last few decades,” the University of North Texas professor wrote in the latest issue of the Review of Religion Research. “But if those with anti-Christian hostility have gained economic power, then Christian activists may be correct in that they now pay a stiffer price for that animosity.”

(Kate Shellnutt, Christianity Today) The teaser for the article says this “nuances the American Church’s ‘persecution complex’,” which seems fair.

Nobody who thinks Russia bought the White House for Donald Trump with some advertising on social media should dismiss out of hand the increased risk when one’s enemies now can buy their ink by the barrel. The Battle of Indiana was the test case; “Chamber of Commerce” hostility to Christianity is now in full production.

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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.