Category: Legalia
Slippery slopes, deep divisions
Reformation Day 500
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.
* * * * *
“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)
Thursday, 10/26/17
Where fun goes to die
It’s Saturday noon. Tens Hundreds of thousands of University students are highly inebriated and on their way to watching kickoffs.
But my thoughts turned earlier to the educational enterprise.
Several years ago Robert Zimmer was asked by an audience in China why the University of Chicago was associated with so many winners of the Nobel Prize — 90 in all, counting this month’s win by the behavioral economist Richard Thaler. Zimmer, the university’s president since 2006, answered that the key was a campus culture committed to “discourse, argument and lack of deference.”
…
[F]ree speech is what makes educational excellence possible. “It is the function of speech to free men from the bondage of irrational fears,” Louis Brandeis wrote 90 years ago in his famous concurrence in Whitney v. California.
It is also the function of free speech to allow people to say foolish things so that, through a process of questioning, challenge and revision, they may in time come to say smarter things.
If you can’t speak freely, you’ll quickly lose the ability to think clearly. Your ideas will be built on a pile of assumptions you’ve never examined for yourself and may thus be unable to defend from radical challenges. You will be unable to test an original thought for fear that it might be labeled an offensive one …
That is the real crux of Zimmer’s case for free speech: Not that it’s necessary for democracy (strictly speaking, it isn’t), but because it’s our salvation from intellectual mediocrity and social ossification. In a speech in July, he addressed the notion that unfettered free speech could set back the cause of “inclusion” because it risked upsetting members of a community.
“Inclusion into what?” Zimmer wondered. “An inferior and less challenging education? One that fails to prepare students for the challenge of different ideas and the evaluation of their own assumptions? A world in which their feelings take precedence over other matters that need to be confronted?”
These are not earth-shattering questions. But they are the right ones, and they lay bare the extent to which the softer nostrums of higher ed today shortchange the intended beneficiaries.
(Bret Stephens, profiling University of Chicago President Robert Zimmer, emphasis added)
But I’m not sure that Zimmer’s answer to the Chinese is complete. He’s standing on the shoulders of Robert Hutchins:
After the 1939 season, Hutchins abolished football at Chicago University. And he did it during Christmas break, while the students were off campus. This decision (along with Hutchins eliminating fraternities and religious organizations from campus) caused a decrease in enrollment and financial backing.
Now to his credit, Chicago became one of the premier schools in the country ….
Well, yes, there’s that, I suppose. Where fun goes to die and future Nobel laureates go to do whatever magic it is that makes Nobel laureates.
But I was surprised to learn that the University pioneered women’s sports and is still involved in intercollegiate athletics, having been a charter member of a unique Division III conference (as once it helped found the Big Ten):
In 1987-88, Chicago became a charter member of a new and unique NCAA Division III conference, the University Athletic Association. Comprised of some of the nation’s leading research institutions, UAA members include Brandeis University, Carnegie Mellon University, Case Western Reserve University, Emory University, Johns Hopkins University, New York University, the University of Rochester, and Washington University in St. Louis.
The UAA provides its member institutions and student-athletes with some of the best athletic competition in the country, as evidenced by the fact that the UAA has sent 129 teams to NCAA postseason play and has produced 11 national champions in its 11-year history. Many student-athletes at UAA institutions are capable of competing at the NCAA Division I level, but choose the UAA experience because of the unique combination of academic, athletic, and travel opportunities the Association afford its members.
Mitch Daniels has deservedly gotten much attention for innovations to prepare Purdue for a changing environment, but I see no sign that his vision is as bold as dropping out of Division I to focus more on education.
Is it okay that I had fun poking around a bit, reminding myself that Division III isn’t incompatible with first-rate education, and writing this?
* * * * *
“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)
Not NSFW, but …
Tuesday, 10/17/17
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.
* * * * *
“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.
Tipsy Teetotaler ن 