Today, Christ is harrowing hell, so these stories are superficial impressions, not final verdicts on “who wins?”
Category: Justice
Thursday, 3/19/15
Middleweight SSM Opponents duke it out
When it comes to florists, photographers and bakers who decline to service same-sex weddings, I thought the arguments for the two (or more) sides were getting a bit stale.
I don’t exclude my own arguments (although I was pretty pleased with my insight that the law’s burden of persuasion has tellingly if tacitly shifted from (a) the customer seeking to impress artisans into involuntary servitude to (b) the artisans who resist slavishly valorizing some of the most bizarre conceits of the Zeitgeist).
But to my surprise, there’s something interesting (maybe even new and fresh) going on at the Witherspoon Institute’s Public Discourse: a couple of middleweights fairly cordially duking it out, both starting with the premise that same-sex marriage is bad:
Russell Nieli and Jeffery J. Ventrella have been arguing here at Public Discourse about how shopkeepers, such as bakers or photographers, should respond to antidiscrimination laws that require them to provide services at same-sex weddings when they object, on religious or moral grounds, to same-sex unions. Nieli and Ventrella agree that it would be morally permissible and even commendable for such shopkeepers to avoid violating the law by ceasing to serve all weddings, whether traditional or same-sex, or even by ceasing operations completely and finding another line of work. They disagree, however, about a third option proposed by Nieli.
Nieli suggests that it would be morally permissible for such shopkeepers to comply with the law and provide services to same-sex couples if they also announced publicly, perhaps through signs prominently displayed in their businesses, that they believe that marriage is a union of one man and one woman, that the relevant antidiscrimination laws infringe their freedom of conscience, and that they are complying with these laws only under protest and out of respect for the rule of law and the democratic process.
That’s the launching pad for Professor Robert T. Miller’s own foray into moral theology, full of concepts like formal cooperation, material cooperation, just law, unjust law, double effect, and proportionality to “make some distinctions that both Nieli and Ventrella overlook.”
Prof. Miller is keen to emphasize the moral licitness of “material cooperation” with evil (what the reluctant baker, florist or photographer are doing if they go along) when, shall we call them, the plusses and minuses tilt. A watchman unlocking a door for robbers because a gun is at his head, not because he’s in cahoots, is a classic example of the distinction between material and formal cooperation.
The proportionality analysis in cooperation cases has generally concerned such factors as the magnitude of the good the cooperator intends in performing the action constituting cooperation, the closeness of the causal connection between the cooperator’s action and the primary wrongdoer’s action, the degree to which the primary wrongdoer’s action depends on cooperation from the cooperator, and the degree of wrongness of the primary wrongdoer’s action.
Now, the good that the shopkeeper intends is undoubtedly very great: complying with a properly-enacted law, avoiding the stigma and penalties that would come from breaking the law, protecting the goodwill of his business, and earning a just profit by selling his services would each, taken singly, be accounted great goods. Taken together, they comprise a very great good indeed. This implies that cooperation in order to attain these goods will be justified unless the other factors, taken collectively, are extremely powerful.
As to both proximity and dispensability, the shopkeeper’s cooperation with the primary wrongdoer is very slight. There’s no question but that the causal connection between selling a wedding cake to a marrying same-sex couple and any same-sex sexual conduct in which they may engage is very remote. The causal connection with the couple’s action of exchanging vows and getting married is closer, but still remote. It’s not as if the shopkeeper is performing or witnessing the ceremony; at most, he is making the party afterward more enjoyable and memorable. Moreover, the shopkeeper’s cooperating action is dispensable two times over: for not only will some other baker supply the wedding cake if this baker declines to do so, but the same-sex couple would undoubtedly get married even if every shopkeeper refused to sell them a wedding cake. Cakes, flowers, and photographs are very nice accoutrements to a wedding, but they are not essential, and a great many people get married every day without any of these things.
That leaves us with the issue of the gravity of the wrong that the cooperating agent helps or facilitates ….
As for “complying with a properly-enacted law, avoiding the stigma and penalties that would come from breaking the law,” I wonder if he has overlooked the possibility that “a properly-enacted law” is unconstitutional, and thus not “properly-enacted,” if it contains no exception allowing artisans to discern what they’re willing to express for a commission. No comment box allowed me to pose the question to the good Professor, though. (That is a little frustrating, but I’ve seen comments turn into cesspools without attentive moderation, so I understand the choice.)
Professor Millr has even got a link to the Kindle version of Moral Theology A Complete Course Based on St. Thomas Aquinas and the Best Modern Authorities, which is on offer – all 1395 pages(!) – for the very reasonable price of “free.” I suspect this means that the “best modern authorities” are at least one copyright cycle old, but unless the examples are impenetrable to the modern reader, it’s hard to think that the book isn’t worth that price.
As for the underlying Nieli/Ventrella debate, I think Ventrella comes across as the religious freedom litigator he is (Alliance Defending Freedom, a/k/a ADF), unwilling to allow that his clients might have mistaken a moral option for a moral duty, and I think Miller if not Nieli refutes his hyperbole pretty well.
I’m old enough to recall when Christians were called “hypocrites” if they only practiced their faith at Church on Sunday, and didn’t take it into the marketplace with them the rest of the week. Now we’re called “bigots” if we do – unless our Christianity is anodyne Religion of Nice.
But it behooves us at least to try to understand with utmost clarity what faith and conscience do require of us in the marketplace, so I’m looking forward to reading my new free Kindle book (one of these years, real soon now).
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Wednesday, 2/18/15
I too have a dream
I’ve been waiting for years for some state legislator to give this speech when the baying hounds are out, howling “Unconstitutional!” about some state Bill:
I took an oath upon entering office to uphold the Constitutions of the United States and of our dear state. You can look up my oath of office if you like. I never took an oath to cheerfully agree with whatever the United States Supreme Court, or our honorable state Supreme Court for that matter, says about what’s constitutional. I never took an oath to speculate that a Supreme Court would disagree with my own good faith interpretation of our Constitutions, and to wave the white flag before that bogeyman before ever voting for a law I think the courts might wrongly invalidate.
Part of the national Constitution is that powers not given to Washington, DC, are reserved to the states or to the people. Part of our system of government is that the states and the people have the right to govern themselves by laws they consider proper and, in the case of legislators sworn to govern constitutionally, that are constitutional. Part of our system of government is that courts don’t have a free-floating mandate to invalidate laws they think insufficiently progressive (or in another era, too progressive) if there’s no constitutional infirmity in those laws. My oath of office to defend Constitutions includes a duty to defend our system of self-governance against illegitimate judicial (or executive) encroachment.
The courts have no troops and no armaments. They only have the power of persuasion. I’m unpersuaded by a number of their decisions.
There comes a time, of course, when the highest court has ruled on a question, that the question is settled.
Abe Lincoln faced that with Dred Scott. The Supreme Court had the last word. The case was over. Sandford won. Poor Mr. Scott was still a slave. But the status of Mr. Scott was the question in “Dred Scott v. Sandford.” It wasn’t “Dred Scott v. The Peculiar Institution.”
So the question of slavery was not settled thereby – not politically and not legally. One could use the Dred Scott case to predict that future litigants with similar facts and legal theories would also lose (that a godawful civil war would ensue was less predictable). But there was always a chance that the next runaway slave would find a better lawyer, or a better legal theory, or both.
The doors of the courts must be open to those possibilities. Our fundamental system of self-governance must be open to those possibilities. If it’s not, we’re at the mercy, all 310,000,000 of us and forever, of one poor lawyer’s ill-chosen legal theory or bumbling advocacy – not to mention the increasingly prevalent scandal of our Attorneys General throwing cases (preemptively announcing that the laws they’re elected or appointed to defend are indefensible). Friend of the Court briefs can help lessen that threat, but they cannot eliminate the possibility of hundreds of millions cast into darkness under the shadow of a squabble between a handful of unelected litigants and amici curiae.
So on the matter before this Chamber, I will honor my oath of office. I will weigh the benefits of the Bill as public policy along with its constitutionality. I will listen in debate to the opinions of our dear state’s various law professors, bearing in mind, however, that they are high caste and have their own take (if not downright spin) on matters as surely as do we low castes (as the high castes remind us, while exempting themselves, so pointedly at times).
And when it’s time to vote, I’ll vote for the Bill if I think it’s sound, and needed, and constitutional, giving due weight to the opinions of other on all those matters.
But I will not borrow trouble and cower in fear of a judicial decision that might some day tell me I was wrong. I’ll read that opinion, if and when it comes, to see if it persuades me.
And if it doesn’t, we’ll start all over again until God or my constituents call me home.
I wish I could attribute that speech to a source other than my own imagination.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Tipsy Teetotaler ن 