Category: Legalia

Woke for what purpose?

David Brooks nails it, though it stings:

In an older frame of mind, you try to perceive the size of a problem objectively, and then you propose a solution, which might either be radical or moderate, conservative or liberal. You were judged primarily by the nature of your proposal.

But wokeness jams together the perceiving and the proposing. In fact, wokeness puts more emphasis on how you perceive a situation — how woke you are to what is wrong — than what exactly you plan to do about it. To be woke is to understand the full injustice.

There is no measure or moderation to wokeness. It’s always good to be more woke. It’s always good to see injustice in maximalist terms. To point to any mitigating factors in the environment is to be naïve, childish, a co-opted part of the status quo.

…

These days we think of wokeness as a left-wing phenomenon. But it is an iron law of politics that every mental habit conservatives fault in liberals is one they also practice themselves.

(David Brooks, The Problem with Wokeness)

It seems to be my role in life to try to “awoken” people, from the conservative side, to the problems conservatives see, especially in the culture and in religious freedom. I’d be a lousy legislator because I’m weak on solutions. (Hmmmm. Is that what’s behind some of our polarization?) I know people who’ve made pretty good livings being even more woke (or it’s conservative counterpart) than me.

But I’ve begun reading, apropos of one of my longest-standing concerns, Charles C. Camosy’s Beyond the Abortion Wars, which is premised on there being wider-spread ~~dis~~agreement (“agreement” — “disagreement” was a Freudian slip of the fingers) than the warring sides seem to think. I’m skeptical (of course — it’s a reflex), but I’ll try to remember to share a bit if, despite myself, I think there’s much merit in his argument.

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I also blog short items at Micro.blog .

Greengrocers, incense and such

This story/parable, of which I learned through Rod Dreher several years ago, remains one of the most powerful and timely (maybe timeless) I know:

Consider, says Havel, the greengrocer living under communism, who puts a sign in his shop window saying, “Workers of the World, Unite!” He does it not because he believes it, necessarily. He simply doesn’t want trouble. And if he doesn’t really believe it, he hides the humiliation of his coercion by telling himself, “What’s wrong with the workers of the world uniting?” Fear allows the official ideology to retain power — and eventually changes the greengrocer’s beliefs.

Those who “live within a lie,” says Havel, collaborate with the system and compromise their full humanity. Every act that contradicts the official ideology is a denial of the system. What if the greengrocer stops putting the sign up in his window? What if he refuses to go along to get along? “His revolt is an attempt to live within the truth” — and it’s going to cost him plenty.

…

Because they are public, the greengrocer’s deeds are inescapably political. He bears witness to the truth of his convictions by being willing to suffer for them. He becomes a threat to the system — but he has preserved his humanity. And that, says Havel, is a far more important accomplishment than whether this party or that politician holds power…

(Rod Dreher, quoting Vaclav Havel) I suggest the possibility of it being “timeless” because I suspect that every society needs some rituals, however informal, to bind its members together. The governors of those societies don’t care what you believe so long as you enact the rituals.

It is this, and more than this, that I’m referring to when I categorize a blog as “Pinch of incense,” for offering the “pinch of incense” imperils not just humanity, but eternity:

And there the chief of the police, Herod, and his father, Nicetas, met [Polycarp] and transferred him to their carriage, and tried to persuade him, as they sat beside him, saying, “What harm is there to say `Lord Caesar,’ and to offer incense and all that sort of thing, and to save yourself?”

At first he did not answer them. But when they persisted, he said, “I am not going to do what you advise me.”

Then when they failed to persuade him, they uttered dire threats and made him get out with such speed that in dismounting from the carriage he bruised his shin. But without turning around, as though nothing had happened, he proceeded swiftly, and was led into the arena, there being such a tumult in the arena that no one could be heard. But as Polycarp was entering the arena, a voice from heaven came to him, saying, “Be strong, Polycarp, and play the man. No one saw the one speaking, but those of our people who were present heard the voice.

[…] But the proconsul was insistent and said: “Take the oath, and I shall release you. Curse Christ.”

Polycarp said: “Eighty-six years I have served him, and he never did me any wrong. How can I blaspheme my King who saved me?”

(The martyrdom of Polycarp, circa 155 A. D.)

Today’s problematic “Workers of the World, Unite!,” today’s pinch of incense, today’s culture-binding rituals, are related to gay pride: pride flags in the window, hosting pride crossfit events and such, baking wedding cakes, observing rules that mandate use of your auditor’s preferred pronouns — you know, trifles like that. (It’s also pledging allegiance to the flag, standing for the national anthem and such — which I’m cussed enough to resist, but which I don’t fault others for observing. )

Jack Phillips of Masterpiece Cakeshop is our Polycarp, Jordan Peterson our dissident greengrocer (and Peterson is expecting secular martyrdom). Both are among my heroes.

If you think I’m making a big deal out of nothing, then I think you’re part of the problem, and need to reflect more carefully on the eventuality — to you and to your countrymen or fellow believers who dissent, and who will have your pusillanimity thrown in their faces.

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I also blog short items at Micro.blog .

Aggregator: What does Masterpiece Cakeshop portend?

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

A punt, pure and simple. Only this and nothing more.
A punt with deliberate hints of better things to come.
A punt with deliberate hints of worse things to come.
A punt with inadvertent hints of better things to come.
A punt with inadvertent hints of worse things to come.
Something else.

Herewith an aggregation, with more substance at the end.

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.
Andrew McCarthy, that less sanguine colleague, who alone in this pack is okay with Justice Scalia’s rewriting of free exercise jurisprudence.
Rod Dreher, stunned and grateful that we won, no matter how small.
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?).
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.
Darel E. Paul (“Only profound naïveté can spin the majority decision as a victory for religious liberty.”).
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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I also blog short items at Micro.blog .

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)

White man speak with forked tongue

Some religious liberty groups are sitting out the “travel ban” case. I think they’re right, and that Christian Legal Society and National Association of Evangelicals summarize why they’re right:

The CLS and NAE said the courts should decide whether the government intentionally discriminated against Muslims. If so, then the order is unconstitutional.

In their shared legal brief, however, the CLS and NAE remain agnostic about the president’s motives. CLS board member Carl H. Esbeck said it was outside the scope of their group to decide whether the president meant to discriminate against Muslims or Islam.

But, mirabile dictu, one group weighed in:

Not all groups were unwilling to choose a side. Those supporting the ban included the American Center for Law and Justice, a conservative Christian group led by Trump’s personal lawyer Jay A. Sekulow. ACLJ made the argument in a brief that the order is constitutional; the purpose of the order, it argues, is to protect national security by keeping out “foreign terrorists.”

That’s just as wrong as if CLS and NAE had claimed to know that the Order was to fulfill Trump’s promise to ban Muslims. But what do you expect: Jay Sekulow wears two hats, which probably is disclosed in ACLJ’s brief but won’t go unnoticed by SCOTUS even if it isn’t.

UPDATE: Here’s my source for the overall story, which I omitted inadvertently. Also, to clarify, “sitting out” doesn’t mean not filing Amicus briefs at all. These groups do have an opinion on how the court should approach the case (two leading groups called for remand to lower courts for further development), but not on the final outcome.

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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)

(Atheists File Lawsuit After Child Forcibly Baptized by Court-Approved Mentor; H/T Religion Clause)

A weird little lawsuit

American Atheists today filed a lawsuit in the Common Pleas Court of Lake County, Ohio, alleging that a developmentally disabled child was forcibly baptized against the expressed wishes of his parents by a minister and a court-approved “Big Brother” mentor.

The child, referred to as “V” in the court filing, was taken to a church picnic in August 2016 by the child’s mentor. During the picnic, the mentor and the church’s pastor subjected V to a full-immersion baptism, against the wishes of V’s parents ….

Let us grant that an 11-year-old, even without developmental delays, should not be baptized against his parents’ wishes. (She shouldn’t be able to get an abortion against their wishes, either, but that’s not how the law seems to roll. Go figure.)

Back in the day, forced Christian baptism could eventuate in outrages that are still echoing today.

Plaintiffs allege that the baptism of the child was a battery and that his immersion left him feeling like he was choking. So far, so good, though it hardly sounds like a big-ticket lawsuit.

But the lawsuit still puzzles me. Plaintiffs allege under various legal counts that they are suffering extreme emotional distress. That’s the puzzler. I don’t think “that really, really pissed me off” out to qualify because that puts a premium on ginned up outrage. So why, other than their wishes being disregarded, do they reasonably suffer extreme emotional distress?

Let me put it this way:

Do they think the baptism made little V a Christian, ontologically and indelibly, ex opere operato? With Evangelicals, you never can tell, but I doubt that even Morning Star Friends Church, the offending religious body, believes that about its baptisms. They’d be far outside the Evangelical mainstream if they do. But if Plaintiffs do believe that, then shouldn’t they reconsider their opposition to a church with such strong magic?
Do think the baptism made little V wet and breathless for a few minutes? Does that warrant extreme emotional distress?

If the latter, this really sounds like the “declaratory judgment” is what this is about, but the facts are so singular that I’m glad I don’t have to write the judgment.

* * * * *

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)

The Fixer

Every so often, news emerges that explains the mixed esteem in which lawyers are held, and the news that Michael Cohen has been Donald Trump’s “fixer” is the latest.

According to Merriam-Webster, a fixer is “a person who intervenes to enable someone to circumvent the law or obtain a political favor.” The less prestigious Wordnik, citing The American Heritage® Dictionary of the English Language, 4th Edition, capture more of the connotations: “A person who uses influence or makes arrangements for another, especially by improper or unlawful means.” Wiktionary, again via Wordnik, goes further: “A person who arranges immunity for defendants by tampering with the justice system via bribery or extortion, especially as a business endeavor for profit.”

Apparently it is “nice work if you can get it.” Michael Cohen says he had just three clients last year: Donald Trump, GOP fundraiser Elliott Broidy and Sean Hannity (who insists he paid no fees).

The most offensive thing is how fixers beslime the legal profession, the true ethos of which is helping clients achieve their lawful objectives by lawful means. (That’s pretty close to the Merriam-Webster definition.) My Fair City’s rumored legal fixers were not held in high esteem by judges and lawyers.

Or maybe the most offensive thing is how the existence of fixers proves that some people, if rich enough, can live “above the law” for a substantial while, and how others, if base and shrewd enough, can get rich facilitating life above the law. How many zillionaires so lived, and died unexposed to any but God, is not known.

I would not trade places with any of them for so parlous and spiritually debilitating a life.

* * * * *

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)

The Almost Nearly Perfect People Redux

Swedish schools, religious as well as secular, distinguish between “education” and “learning,” as odd as that may sound. The former is the curriculum; the latter, the time spent, for example, at recess, lunch, or social gatherings — outside the context of teaching. Religious education and practice are allowed only outside the highly regulated curriculum. Even then, any religious activity, such as school prayer or the lighting of Shabbat candles, must be voluntarily undertaken. In each case, it is up to the parents either to include their children in the activity or to opt out.

This means that there is in fact no religious education in Swedish schools — it is legal only outside the state-mandated curriculum — and so there is no religious education to outlaw. What the state would now outlaw, however, should the proposed legislation pass, is the opportunity for Christian, Muslim, and Jewish children to feel part of a group they can identify with, to learn about their religious and cultural heritage, and to partake of a value system that isn’t built on a belief in the almighty state, blessed be its name.

… As we all know, it is much easier to outlaw liberty — that has always been Sweden’s default choice — than to struggle with the questions it raises and the perils it poses.

(Annika Henroth-Rostein, Sweden Aims to Outlaw Religious Education, Which Is — Already Illegal)

“The question” here is Muslim immigrants now 10% of the Swedish population, with 11 Islamic schools segregating boys and girls. My blog title is based on this book, which is on my bought-but-not-yet-read list.

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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.

Fraud on the courts?

Notre Dame’s president, the Rev. John Jenkins, … justified the birth-control decision by saying, in part, that Catholic tradition requires respect for “the conscientious decisions of members of our community.” Of course, Notre Dame community members can exercise their consciences without receiving university-provided contraception. And there is also the serious possibility that Notre Dame abused the legal process when it sued the Obama administration for relief. If the university had standing on religious-freedom grounds, how can it now explain its decision to facilitate coverage of birth control?

…

Notre Dame’s leadership has embarked on a campaign to put the university on the same footing as the nation’s other elite schools. In so doing, it often has renounced its obligation to shape the moral landscape of the society it inhabits, and, more importantly, to form its own community properly.
The Catholic Church is never more effective than when it when it acts as a countercultural force. It offers the modern world a radically different vision of human sexuality from the one most young people are taught. With the decision to provide birth control, Notre Dame has forfeited its chance to stand in moral opposition to a utilitarian sexual culture. It has chosen to stop speaking to the kind of life that makes people whole.

…

When the administration recently announced that undergraduates would be required to live on campus for at least six semesters, Father Jenkins defended the rule by saying the university makes no apologies about being a place of faith. “If that’s what they want, they should come here, but if that’s not what they want, there are many other places—great places—to go to,” he said.The connection between Notre Dame’s Catholic identity and its campus-residency rules is tenuous. But Father Jenkins still imposed this rationale on students who dislike the new policy. Why, then, does he refuse to assert Catholic identity as grounds for refusing to cover contraception?

(Alexandra DeSanctis in the Wall Street Journal, emphasis added)

Let me unpack the “possibility that Notre Dame abused the legal process.” I assume that Ms. DeSanctis is alluding to some sort of claim that Notre Dame could not, without violating its religious convictions, provide insurance coverage for contraceptives. Now it’s saying, in effect, “Oh. Never mind. Catholic tradition requires respect for ‘the conscientious decisions of members of our community,’ and that requires us to cover contraceptives.”

I sure as heck can see her point.

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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.