Explaining myself

I posted last night some clippings from commentary on the U.S. Presidential debate of September 29, after almost four weeks’ absence and talk of ending the blog.

Problem 1 is that Wordpess, my platform, has been making “improvements” again. I’ve generally used its native editor, and they’ve replaced it with a monstrosity called a “block editor,” which is perfectly indecipherable. It wasn’t worth the effort to learn it since it’s a patently absurd way of writing essay-like things for people to read. [UPDDATE: As I subsequently tried to find a lighter graphic theme than War Correspondence had affected, it appeared that WordPress, or bloggery in general, is focused on commerce, photomontage, and other non-essay activities.] 

Problem 2 is not really a problem at all: even at my advanced age (500 dog years), I’m learning new tricks far more rewarding that mastering a stupid editor, such as not wallowing so much in news and commentary. This was made possible by spiritual adjustments which are best summarized by the advice of Fr. Stephen Freeman (for years, and especially here) and the late Fr. Thomas Hopcko. I’ve said for years that my epitaph should be “Darn! Just when I almost had it figured all out!” — a pathetic joke for a Christian, but an accurate reflection of how I was living. This annus horribilus has been a good one for taking stock of things and changing them as needed, and I can finally consider a better epitaph because that old one doesn’t fit any more.

If you think that’s too much information or a digression, it’s not: It means I’ve had less to say because I’m less “well-informed” and less in need of “venting” about things.

There may be more, but the third factor, the one facilitating my return to blogging, is the realization that I need not use WordPress’s stupid editor. I’ve acquired MarsEdit, on which I composed last night’s blog and am composing this one. It’s worth learning for me.

So I have the blogging tools I need but less to vent about. For that reason, I’ll almost certainly not return to daily blogging, and the conceit of warring against the deathworks already is feeling stale. I may return to the Tipsy Teetotaler name and a brighter graphic theme.

Finally, I commend to you Rod Dreher’s new book, Live Not by Lies, which I got on the Tuesday release date and finished yesterday — a relatively ferocious pace for me (facilitated by not wasting time on ephemeral news — see, it all connects). I think Dreher is fundamentally right about the future for cultural conservatives, but I’m partial to a Christian (Lutheran) reviewer who suggested that we may be heading for more open and literal warfare between Social Justice Warriors on the Left and “Traditionalst” atavists on the Alt-Right, with sane Christians mostly suffering collateral damage rather than being the targets of the SJWs.

* * * * *

Out of the crooked timber of humanity no straight thing was ever made.

and

You shall love your crooked neighbour

“With your crooked heart.

W.H. Auden

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Chickens coming home to roost

Every single goal the gay-rights movement set out to achieve in my lifetime has now been won. Gays can marry; we can serve our country openly with pride; we are categorically protected from discrimination in employment and public accommodations in every state. Many once thought it would happen in reverse order, with employment discrimination barred before civil marriage was extended to gays and lesbians, but history has its surprises. Nonetheless, it’s done. Finished. Accomplished.

The Equality Act, the key piece of Democratic legislation designed to update the 1964 Act to include gays and transgender people, is therefore moot. The core goals have been accomplished without Congress needing to pass any new laws. What Gorsuch has achieved is exactly what that bill purports to legislate — except for the Act’s attempt to gut religious freedom, by exempting its provisions from the Religious Freedom Restoration Act of 1993. And that, surely, will be the remaining business: a battle between religious freedom and gay and transgender equality.

Andrew Sullivan, When Is It Time to Claim Victory in the Gay Rights Struggle?

Thus does it become salient that Evangelical fealty to Donald Trump and the GOP, flavored with Christian Nationalism, has given religion and religious freedom a particularly bad odor, and not just to the secularists of the ascendant Left.

* * * * *

Out of the crooked timber of humanity no straight thing was ever made.

* * * * *

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

“Because of … Sex”

I’ve tried to let go of my anxieties about things beyond my control, and I’m not doing too badly in my effort.

Part of my calm comes, ironically, from some political realism (call it fatalism if you must): my side lost the culture wars, at least for now and the near future, so there will be adverse legal and political consequences.

Those consequences likely will be worse because so many of the noisesome avatars of American Christianism have been humping Trump’s leg for 42 months, evoking disgust from normal and Left-abnormal alike.

That I wasn’t among them will give no impunity, partly because, God willing, if a knock comes in the night I’ll not say “No! Not me! I’m not that kind of Christian!” Like ’em or not, the leg-humpers are my distant spiritual kin, so to deny them in time of great peril is like denying Christ.

Another bit of calm comes from the realization that, consequences or not, for now and the near future cultural conservatives, mostly Christian, will almost certainly have it incomparably better than most Christians in the past. (This also means that “knock in the night” is pretty unlikely.)

By “past,” I do not mean “since the birth of Evangelicalism in the 18th and 19th century Great Awakenings.” I mean 2000 years of Christianity. Commemorating the Martyrs and Confessors in Matins each week has taught me that. Real believers will survive and perhaps thrive — although things could get worse than I imagaine so they’ll thrive by departing to be with Christ;  “winsome” don’t always feed the devil-dawg’s bloodlust.

But “not anxious” doesn’t mean “disinterested,” and I’m pretty keenly interested in yesterday’s Title VII  decision (hereafter “Bostock“).

“Not anxious” also doesn’t mean “oblivious” to ramifications that are going to roil the nation for a while. The ones that most get my attention are not the ramifications under Title VII, which deals with discrimination in employment in details I’m unfamiliar with, but ramifications on what sex discrimination prohibitions will mean, by exactly the same Bostock logic, in Title IX and elsewhere. Title IX, for instance, is where the “biological males in women’s locker rooms” specter arises, as not many employers have people getting naked in locker rooms, but most educational institutions do.

Nevertheless, I’m going to pretty much set aside such sequelae to focus on the decision, it’s logic, illogic, dissents and hints about the current court going forward. Sequelae may get comments when they come.

You can get a skillfully pared-down version (from 120 pages to 30) of the Bostock decision here, by the way. If you don’t at least skim it, don’t you dare make snarky remarks about any of the authors.


First observation: I see no sign of bad faith by any of the three authors. Cases don’t get to SCOTUS unless they’re difficult legally. Specifically, I repudiate demagoguery that Gorsuch was just being true to his elite class (What other class do we want on the court? Anyone who makes it onto any Federal Court is ipso facto subject to the “elitist” charge.) or sucking up to the NYT Editorial Board.

Indeed:

The decision was a remarkably clear illustration of several fault lines that persist within the conservative movement. First, there is the friction between textualism and originalism, two judicial philosophies that are often lumped together but that found themselves squarely opposed in this case.

Speaking for the textualists—those who eschew a law’s authorial intent to focus only on its explicit wording—Gorsuch’s argument was simple: Title VII forbids any and all discrimination on the basis of sex, and “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” In short: If you are a business owner, and your female employees are allowed to date men, but you fire a male employee for dating a man, it’s hard to argue his sex was not a determining factor in your decision.

Speaking for the originalists—those who attempt to determine what the intent of a law was at the time it was passed—Justice Samuel Alito fervently disagreed: It was staggeringly plain, he argued, that not a single legislator who voted to codify Title VII would have considered discrimination “on the basis of sex” to include sexual orientation and gender identity. The very concepts would have been foreign to them.

That friction was nothing, however, compared with what became evident between the conservatives who praised Gorsuch’s decision as quality textualism and those who argued that it amounted to a betrayal of the whole point of getting Trump justices on the court: to get the right some policy wins.

… Tweeted Jon Schweppe of the social conservative American Principles Project: “I was told there would be winning.”

The Morning Dispatch: The Supreme Court Expands Discrimination Protections.

Left and Right seem agreed that SCOTUS is a political legislative body in disguise. Left and Right are wrong.


Commentary on the oral argument in Bostock last November:

The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.

Of the five conservative Justices, Neil Gorsuch showed himself the most hospitable toward the plaintiffs’ case on Tuesday [i.e., oral arguments], and no wonder: as the most committed textualist, he’s the likeliest to see surprise plain meaning as beating legislative history.

The Supreme Court Is Not Debating Your “Humanity”. The comments on Gorsuch were prophetic, but certainly not unique.

I thought that the dissent by Justice Alito, who faulted Justice Gorsuch’s adoption of the Ginger and George logic, was quite persuasive. Take a deep breath for an argument that’s nothing like television smack-talk:

At oral argument, the attorney representing the employees, [Pam Karlan] a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination. And she was right.

The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent—i.e., that the employee’s sex motivated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argument collapses….

I would paraphrase: “If an employer takes an adverse employment action for any reason that he considers legitimate in his sole discretion so long as it is not otherwise forbidden by law—that action is not converted into forbidden sex discrimination simply because the employer knows the employee’s sex.”


Legal experts who watched the arguments unfold weren’t entirely shocked that Gorsuch ruled as he did. The justice is well known as a textualist, someone who holds that the meaning of a law turns on the text alone, not the intentions of its drafters.

“What I saw in the argument [i.e., last November) was Gorsuch really struggling with the fact that the textual argument seemed really powerful to him,” Samuel Bagenstos, a University of Michigan law professor, told me. “There’s no way to think about sexual orientation discrimination without sex being part of it.”

Michelle Goldberg, Surprise! Justice on L.G.B.T. Rights From a Trump Judge


This is not a narrow ruling that just means you can’t fire a person for being gay. Extending civil rights law to protect a whole new category carries with it a host of ancillary protections.

… [T]he Bostock ruling won’t stay confined to employment law. The majority opinion protests, disingenuously, that “sex-segregated bathrooms, locker rooms, and dress codes” are “questions for future cases.” But federal law is full of prohibitions on sex discrimination (Justice Alito’s dissent lists over 100 such statutes), and every one of those will have to be reconsidered in light of today’s ruling.

Justice Gorsuch Just Opened Pandora’s Box


[L]et’s be honest: there was no leadership among the national Republicans. At least President Trump was willing to take the heat for a transgender military ban. But even he, and Republican politicians who supported him, did not articulate why they believe what they do.

If they can’t or won’t talk about these things substantively, it’s no wonder that people think it must be what Justice Anthony Kennedy once called “irrational animus.”

Again, I ask you: what, from a social conservative viewpoint, is the function of the Republican Party? Maybe:

  • to separate conservative Christians from their money and their votes
  • to dose Deplorables anxious about cultural decline with the Pill of Murti-Bing, a drug that induces a sense of happiness and blind obedience

What else?

Rod Dreher, Religious Conservatism’s Potemkin Power (emphasis added).

The problem is not just that your run-of-the-mill Congressional hack can’t talk about these things substantively, but that even the good arguments of people like Ryan T. Anderson are greeted with slack-jawed refusals of comprehension and then dismissed as lipstick on an irrational animus pig. (That this treatment is the real irrational animus is, of course, a posssibility that must not be uttered.)


Some conservative Evangelicals who work at Evangelical institutions (they told me their names and affiliations) have reached out to me tonight after reading this. Their collective view: [Bostock] is a real moment in which we can see the slow-motion collapse of conservative Evangelicalism.

Dreher, supra. Tacit admission that “Evangelical” is now a political label, not religious?


This decision hands LGBT activists the coercive machinery of civil rights law.

R. R. Reno


Interesting point about Bostock: It assumes that the original public meaning of “sex” in Title VII was “status as either male or female [as] determined by reproductive biology.”

In other words, it assumes the “gender binary” that some idiots pretend to find problematic. That assumption is not incidental, but central, though I’ve only heard one comment on it so far. From such subtle acorns mighty legal oaks may grow.

So the gender identitarians may have won a legal battle while losing a philosophical war (with future legal consequences to be determined).


Bostock‘s “textualist” (whether is is sound textualism is contested by the dissenters) decision on the meaning of “because of … sex” vindicates Phyllis Shlafly’s opposition to ERA on the basis of what the cognate “on account of sex” would come to mean.


Finally, I remember the rent garments, weeping, and gnashing of teeth among religious liberty advocates (including me) when Scalia in Employment Division v. Smith overruled Wisconsin v. Yoder (he pretended to be drawing out its real meaning, but nobody was fooled).

But it turned out that — well, let’s just say that for a couple of decades Employment Division v. Smith changed legal strategies and theories, but not many outcomes. Then Scalia’s imagination met its match in categorical bans on discrimination that cleared his “neutral law, general applicability” threshold.

Similarly, some people claim to see signs that Catholic Gorsuch has enhanced protections of religious liberty concealed in his coat pocket, ready for an appropriate case to apply them. Basically, they’re saying that he’s ready to create a judicial version of the rarely-successful “Fairness for All” legislative approach to the long struggle between sexual liberation and religious freedom.

Since the religious liberty cause has fared poorly in courts and commissions, obsessed as they seem to be with vindicating a right of sexual minoritiess to live life unaware that anyone disapproves for any reason,  I would like that more than a little.

UPDATE: Here’s David French talking, among other things, about the potential “Fairness for All” jurisprudential coup.

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Out of the crooked timber of humanity no straight thing was ever made.

* * * * *

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Disillusioned

This has been rattling around my soul, inchoate. Today, it came together. It’s nothing much, but maybe others will find it helpful.

I was a single-issue voter for a while in the 80’s, but then I notice some fools and rogues checking the “Pro-Life” box, and that most Republican “Pro-Lifers” were insincere and/or utterly tone-deaf to all overtones or undertones. So I now vote pro-life, but with more discernment.

I will not vote for Donald Trump just because he checks the “Pro-Life” box (and “Religious Freedom” box), especially since all he really means is “anti-abortion” (and “suck up to Evangelicals”). Same goes for Republicans more generally.

The Trump Party has destroyed even my presumption in favor of The Thing That Used To Be The GOP.

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Potpourri

[L]ast summer’s much-discussed debate between Sohrab Ahmari and David French is not really new. And, of all the participants in said debate, both Ahmari and French are amongst the least interesting and least illuminating. What began as a debate about the relationship between freedom and virtue in the 1960s had, by last summer, devolved into a debate about LARPing Catholic Integralism vs a libertarian public square that saw Cold-War-style mutually assured destruction as the glue that held our pluralist order together. A version of the conversation matters. But it is not the version we encountered last summer.

… A government can serve the choice-maximizing individualism of our present order or it can serve something else. What it cannot do is refuse to take sides.

Liberalism, the American Right, and the Place of Love in Politics. Highly recommended, dangerously engrossing.


The price of being Christian in post-Christian modernity is eternal vigilance.

Rod Dreher, ‘Apocalypse Any Day Now!’


[O]ne can affirm that Christians have lost the “culture wars” (a term coined by Hunter himself—though not an endorsement of their prosecution), while affirming simultaneously that those wars are still being played out before our very eyes. The situation is analogous, in other words, to World War II, when fighting continued in parts of Europe following Germany’s surrender. Culturally speaking, news doesn’t travel fast.

The election of Trump and Pence, therefore, far from a muscular reassertion of conservative white Christianity’s social capital in America today, is instead the spasmodic last gasp of a once virulent but now spent and dying body.

Brad East, Theologians Were Arguing About the Benedict Option 35 Years Ago.

Okay, I can see that. But let’s look at 11/3/20: Trump (and even Pence) have made Evangelicalism extremely odious in the nostrils of elite society. By extension, Christianity generally is now odious, completing the work of Roman Catholicism’s handling of the clergy sexual abuse problem.

Paybacks can be hell, and this could be the last gasp battle.


I’m trying to decide if Jonathan Rauch is mostly trying to be clever by suggesting a Veep nobody else is touting, but Janet Napolitano sells fairly easily.


The strange thing is that, a full year after the release of the Mueller report, Trump and the media ecosystem around him are still following that bread-crumb trail toward an ever-elusive climactic moment—even in the midst of a pandemic that is killing more than 1,000 Americans every day. Trump’s supporters like to complain that Democrats are “obsessed” with the Russia probe, but in fact it’s the Trumpist right that just can’t seem to give the investigation up.

… A release of documents involving emails between Strzok and Page is kind of like a golden-oldies night for Fox News. Commentators find the menacing-sounding tidbits and read them breathlessly over and over, and the whole conspiracy comes rushing back to the faithful. For viewers, the coverage is enough to induce a more general sense that something must have been rotten in the deep state if people are talking about it all so much.

… Whereas people on the left and center-left used to eagerly await Mueller Time, a large constituency on the right is now awaiting some kind of moment of truth in which Barr and Durham hold to account the cabal that tried to take down a president. In its most extreme forms—evidence of which is daily in our Twitter feeds and emails—the reckoning will include arrests and jailing (typically at Guantánamo) of all of the conspirators, while the Roger Stones and Michael Flynns of the world walk free, having been vindicated.

The Trumpist Right Just Cannot Let Go of the Russia Investigation

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Secularism, I submit, is above all a negation of worship. I stress:—not of God’s existence, not of some kind of transcendence and therefore of some kind of religion. If secularism in theological terms is a heresy, it is primarily a heresy about man. It is the negation of man as a worshiping being, as homo adorans: the one for whom worship is the essential act which both “posits” his humanity and fulfills it.

Alexander Schmemann, For the Life of the World, Appendix 1

[O]nce you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness,
And they will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach ….

Wendell Berry, Do Not Be Ashamed

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Eric Metaxas

Eric Metaxas has bothered me a lot in the age of Trump.

He was supposed to be a really bright guy, who wrote biographies of Martin Luther and Dietrich Bonhoeffer, both of which were acclaimed at least in the parts of the virtual world I visit. But then he got an eponymous radio talk show, and started supporting Trump, for support of whom I had not heard and could not imagine any “really bright” defenses.

Was really bright Metaxas seeing something I was missing? Or had he just decided it was time to cash in on his “bright guy” reputation, seeing how even acclaimed books don’t pay that much in royalties? That doesn’t seem to fit: I’ve looked at the podcast version of his radio show, and two other podcasts Metaxas does, and they look a bit too high-toned, and even non-political, frankly, to be cash cows. (I’m not subscribing, but they’re apparently not the cesspools I feared, either.)

Then came a recent “debate” over Trump between him and David French. In my opinion, Metaxas did not produce even semi-bright arguments for Trump. It’s hard to identify Metaxas’ argument beyond that because it’s a “thought salad” (he’s too smooth for word salads), a fusillade of arguments lame and lamer.

I will not say that Metaxas makes evangelical-friendly arguments that he does not believe, whatever I may suspect about that. But he clearly is making fear-based arguments about the horrors that will come if Democrats are elected. (If Democrats gain the Presidency and the Senate, it could indeed get ugly because (a) they’ve been terrible on religious freedom since, oh, roughly, when Bill Clinton signed RFRA and RLUIPA and (b) now some of them are out for explicit revenge against at least Evangelicals, and it’s hard to punish Evangelical Trumpists without mucho collateral damage.)

So: Gotcha! You’re voting/inciting votes based on fear, Metaxas!

But so what? I’m voting against Trump because I fear that his malignant narcissism will tragically misapprehend the world in a future crisis — a fear his January-February misapprehension of the novel coronavirus threat justifies in spades.

I think, though, that “fear” is an equivocal word in this context. My fear for the country isn’t exactly the same genus and species as the fear Metaxas is engendering toward the prospect of Democrats controlling the political agenda again — fear of “socialism” and, of course, increased abortion (which has actually been decreasing, including under Democrats, for a long time now).

So no, I wasn’t missing anything, but it seems that stupid pro-Trump arguments are kind of an inexplicable quirk of Metaxas, who may indeed be a really bright guy in other contexts — though the way he wielded Luther and Bonhoeffer in the debate with French disinclines me to buy either of their bios.

(H/T John Fea, The French-Metaxas Debate: Some Commentary, who first got the debate transcribed and then in later commentary confirmed my impression that Metaxas was fear-mongering and, for good measure, dog-whistling.)

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Secularism, I submit, is above all a negation of worship. I stress:—not of God’s existence, not of some kind of transcendence and therefore of some kind of religion. If secularism in theological terms is a heresy, it is primarily a heresy about man. It is the negation of man as a worshiping being, as homo adorans: the one for whom worship is the essential act which both “posits” his humanity and fulfills it.

Alexander Schmemann, For the Life of the World, Appendix 1

[O]nce you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness,
And they will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach ….

Wendell Berry, Do Not Be Ashamed

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Trade-offs of pluralism

I’m still bereft of worthy, fresh ideas for blogging since blogging for me is part of an iterative search for truth and I don’t have a good enough handle on coronavirus to say a whole lot confidently and truthily.

Except maybe this: If you think the coronavirus is a hoax and not very serious, pull your head out of those nether-regions where the sun don’t shine (i.e., shut off Limbaugh, Hannity and their ilk), get a few basic facts, and think about how many Chinese, Italian and Spanish people died, how many international organizations sounded alarms, in this elaborate hoax to dethrone King Donald. Does that sound plausible?

Lacking something fresh, I found another incomplete draft, from September 9, took it and dusted it off. Enjoy!

* * *

Sohrab Ahmari and David French finally faced off live at Catholic University of America Thursday evening [September 5?], moderated by Ross Douthat.

In debating terms, it was no contest: French cleaned up. In fairness to Ahmari, his wife had a child on Wednesday, so he had things on his mind more important than a mere livestreamed national debate of sorts.

But again and again, French, in good Evangelical style, spoke of the freedom to preach the Gospel in a content-neutral public square, to lead drag queens to Jesus, and such. That’s pretty consistent with the forward-facing values of ADF, the Evangelical-leaning public-interest law firm for or with whom he formerly worked.

It started to sound as obsessive as Ahmari’s concern over Drag Queen Story Hour. So I was glad to see Jake Meador at Mere Orthodoxy argue for something a bit thicker than mere neutrality:

For most of the … campus ministries at Nebraska, …universities were convenient social institutions because they rounded up a large number of demographically similar young people into a single place where they would have broadly identical routines, all of which made it very easy to evangelize them. Many of these groups did not think anything of taking their students away from campus regularly on retreats, heavily programming their weeks (thereby cutting into their time to give to their studies), and even sometimes suggesting that their academic work was of mostly incidental importance. The real life happened in Bible studies and when you prayed and over coffee with your discipler or disciplee. College, much like one’s eventual career, was mostly a necessary evil that simply secured material goods for you.

While watching the French-Ahmari debate last night it occurred to me that French seems to have a fairly similar vision of the nation—it’s an incidental good that is useful for advancing certain strictly material goods but it pales in significance when set next to the work of the church …

The point is not necessarily that French should endorse some species of integralism, although it is worth noting that in his handling of rights and the nature of religious doctrine as it relates to public life French is far closer to the Baptists than he is the traditional views of the reformed tradition to which he belongs. But that point aside, French could preserve many of the rights he cares about preserving while anchoring his account of the political in something more real than the pragmatic adjudication of disputes within a pluralistic society.

… That the government could be something more than a mere arbiter who threatens to hit you in the head with a brick if you don’t play nicely with your neighbor seems to be unimaginable ….

There’s much more Jake wrote, but you can go read it yourself readily enough.

By lifelong mental habit and eventual initiation into the solemn mysteries of “thinking like a lawyer,” I don’t suppose I’ll ever be able to leave the camp of classical procedural liberalism, but the Ahmaris and Meadors of the world at least drive home that there are trade-offs in our pluralistic experiment.

One of the trade-offs is the risky one of declaring, a priori, that we must never agree on just what is the “common good” because we know that there’s no such thing as human nature, just humans with various and sundry natures, each, probably, as unique as a snowflake. I disagree with both dogmas, but for the foreseeable future, I’m a loser. It will take some undeniable anthropological catastrophe, the equivalent of COVID-19, to turn those tables.

* * * * *

[O]nce you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness,
And they will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach ….

Wendell Berry, Do Not Be Ashamed

* * * * *

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

I highly recommend blot.im as a crazy-easy alternative to Twitter (if you’re just looking to get your stuff “out there” and not pick fights).

Montana’s Blaine Amendment case

I know I’ve written about this general topic before, maybe for my private journal or maybe published, so forgive me if this is plowing old ground.

Mark Movesian at the St. John’s Law School Center for Law and Religion blogs at the Law and Religion Forum that he thinks the petitioner will prevail in Espinoza v. Montana Dep’t of Revenue, a case wherein the Montana Blaine Amendment led the state Supreme Court to invalidate an entire, modest program of state aid to private schools, including religious schools, but (let us presume, as it appears to be true) “wholly as a result” of parents’ “genuine and independent choice” (two criteria of a prior Supreme Court precedent).

That’s a mouthful I know. Here’s a longer, more relaxed account.

Because the Supreme Court took the case, I think Movesian is correct about the outcome: if the court wasn’t inclined to overrrule the Montana Supreme Court, it could have just rejected the case.

I hope Movesian is correct that the decision will be a shot across the bow of states that retain Blaine Amendments, rather than a vehicle to invalidate all Blaine Amendments. I hope that because, in my mind, it would be “conservative” judicial activism to rule more broadly (more correctly, it would require a whole lot of ‘splainin’ why it wasn’t judicial activism to persuade me).

I’m a strong advocate of religious freedom in an expansive sense, including some instances where some people would contend that one’s religious freedom causes harm (usually, “dignitary” harm) to another. Consequently, I detest Blaine Amendments’ typical operations today.

But the outcome in Montana is that religious parents and parochial schools are not being treated any differently than “secular” parents and their private schools. If I was a Montana legislator, I might be mad at my Supreme Court for striking down the program, but were I a Montana judge, I might well have found it the best balancing of my state Blaine Amendment’s ban with federal equal protection requirement to strike down the whole law, just as Montana’s Supreme Court did.

The best argument I can see for petitioner Espinoza is that “but for” (a causal connection) the state Blaine Amendment, the whole program would have stood and dollars could be going to the religious school of my preference — an argument that, lacking a complaint of unequal treatment, I find too weak, given my current ignorance of the arguments in the briefs.

Maybe my hesitation means I’m, oh, I dunno, a temperamental conservative or something,

* * * * *

In the fearful day of judgment, O Lord, forgive my prissy efforts at purity.

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Motivated reasoning

If I had to name only one thing I have learned in my many years of making arguments, it would be this: You cannot convince people of anything that they sense it’s in their interest not to know. I thought about this often as I was reading Alex Morris’s Rolling Stone story about American evangelicals’ love of Trump.

… It is very much in the interest of Morris’s aunt, and in the interest of millions and millions of other people, not to know that we are, through our economic choices, bringing ruin to the planet that we’re supposed to be the stewards of. And so she doesn’t know. Like so many others, she makes a point of not knowing.

But I think the problem of motivated not-knowing isn’t found only on the conservative evangelical side of things. Here’s one passage from Morris’s essay that seems to be drawing a lot of attention:

“The white nationalism of fundamentalism was sleeping there like a latent gene, and it just came roaring back with a vengeance,” says [Greg] Thornbury. In Trump’s America, “‘religious liberty’ is code for protection of white, Western cultural heritage.”

In that second sentence, the clause “In Trump’s America” is a problem. What does it mean? In one sense, the entire nation is “Trump’s America” right now, whether we like it or not; but maybe Morris means something like “Americans who enthusiastically support Trump,” or “the parts of the country that are strongly supportive of Trump.” Impossible to tell. Thornbury didn’t use the phrase, but presumably he said something that led into his line about “religious liberty” as code for something else.

So the passage is unclear, but I’d like to know what Thornbury means. I’ve written a good deal about the importance of religious freedom on this blog and elsewhere — just see the tag at the bottom of this post — so does that mean that I am using that topic as “code for protection of white, Western cultural heritage”? If so: explain that to me, please.

Maybe there’s something that Greg Thornbury and Alex Morris have an interest in not knowing: that even if millions of white Americans abuse the concept of religious liberty, religious liberty could nevertheless be in some danger.

Alan Jacobs, who has much more than this to say, including ways in which fundamentalist Christian cranks are motivated to ignore environmental damage.

Seriously, read it all.

But Jacobs omits something: anyone who thinks Rolling Stone is prima facie a reliable interlocutor of Christianity, and especially of the religious right, deserves all the false certaintly and motivated ignorance he gains there. Rod Dreher kinda hits that, too.

* * * * *

Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Gotcha! failure

Aaron Tang, a ConLawProf at U.C. Davis, opines in the very receptive New York Times: “Conservative Hypocrisy Makes Its Case at the Supreme Court.” The gist of the column is in the sub-headline: “Lawyers on the right are advancing arguments they once rejected on principle.”

Two problems with the column are (a) opportunistic arguments are nothing new (there’s a story about circuit-riding lawyer Abe Lincoln arguing a proposition for one client in the morning, its opposite for another client in the afternoon) and (b) progressive lawyers defending the laws in question are also advancing arguments they once rejected on principle.

Keep that in mind, though, and the cases Tang discusses are legitimately interesting. The Montana case seems like a particularly tough one for “conservatives.”

Montana had a “Blaine Amendment,” one of many 19th Century anti-Catholic state constitutional provisions that no public funding may be used directly or indirectly to aid any religious school. But “Montana’s 1972 constitutional convention overwhelmingly re-enacted the no-aid provision in order to protect religious institutions from state interference.”

A relatively recent legislature sought to circumvent the no-aid amendment by providing a (paltry) tax credit for scholarship funds for religious and secular schools, presumably reasoning that a tax credit prevents the money from ever becoming “public funding” subject to the provision.

The Montana Supreme Court reasoned otherwise, but mindful of SCOTUS precedents that states cannot treat religious institutions differently than similarly-situated secular institutions, struck down the whole program, not just the part allowing scholarship funds for religious schools.

I hope SCOTUS agreed to hear the case to say something like this:

  1. No, no, no! We’re not going to sit a Super-Legislature. This case isn’t like our precedents.
  2. The 1972 Constitutional Convention’s anti-entanglement rationale plausibly moots any constitutional infirmity of the bigoted original no-aid provision. (Dictum: events before and after 1972 arguably support Montana’s instinct that public funds come with strings attached, and we’re not going to second-guess the Montana Supreme court that tax credits are public enough to fall under the 1972 ban.)
  3. There is no Federal constitutional right for private schools to get public support in any form, including tax credits.

Some of my favorite Colleges don’t take public aid in any form, and I think they’re the better for it, net. Further, it would not be good for the country for the high court, fortified by two Federalist Society-vetted nominees, to unduly embolden activist conservative litigators just because prior courts have emboldened progressive litigators.

Caveat: I have not read the briefs — an omission that will not be true of any of the Justices.

* * * * *

Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.