The Equality Act

When I listen to news, I listen to NPR. I’m aware of its liberal bias, which manifests in how it covers news but also — and this is too rarely appreciated — what it considers "newsworthy" in the first place.

But NPR really dropped the ball on the Equality Act, which comes up for vote in the U.S. House today. Its story doesn’t even mention opposition based on the certain (not speculative) effect of requiring that male-to-female transgender persons be permitted to compete in athletic events against biological women.

A guest opinion piece in the Wall Street Journal identifies other problems besides the Act’s adverse effect on religious and conscience rights:

The Equality Act would threaten the existence of women’s prisons, public-school girls’ locker rooms, and women’s and girls’ sports teams. It would limit freedom of speech, freedom of association, accurate data collection, and scientific inquiry. It would threaten the rights of physicians who doubt the wisdom of performing life-changing, reproduction-limiting procedures, and parents who seek to protect their minor children from such treatment.

This isn’t hyperbole. Similar state laws have already resulted in such harm. In California, Catholic hospitals have faced lawsuits for declining to perform life-altering “gender affirmation” surgery in September 2016. In Connecticut, two biologically male athletes won a combined 15 girls state championship races, allegedly taking opportunities for further competition and scholarships from female runners in June 2019. Alaska’s Equal Rights Commission opened an investigation into a women’s shelter after it turned away a biological male in September 2019. H.R. 5 would impose the most extreme form of these laws on the whole country.

The bill is so broad that even some who support the measure in principle have called for Congress to carve out exceptions. Writing in the Washington Post in 2019, tennis legend and activist Martina Navratilova asked Congress to exempt athletic competitions. “The reality,” Ms. Navratilova wrote, “is that putting male- and female-bodied athletes together is co-ed or open sport. And in open sport, females lose.”

Women forced to compete against male athletes risk not only losing competitions, but also serious injury. Ask Tamikka Brents, whose orbital bone was fractured by transgender MMA fighter Fallon Fox in the latter’s first professional fight as a woman. Ms. Brents said she felt “overwhelmed” by the fight.

The reason that some contexts require separation of the sexes is obvious: Women have unique physical vulnerabilities. Female inmates are kept separate from male inmates for just this reason. How can we possibly reduce the number of sex crimes against women if the law refuses to recognize such basic differences?

Under the guise of fairness, the Equality Act would forbid policy makers from ever taking into consideration the differences between men and women that are necessary in order to guarantee safety and equality of the sexes.

The Equality Act isn’t about protecting people from discrimination; it’s about compelling adherence to gender ideology. Don’t let its name fool you.

The Equality Act Makes Women Unequal – WSJ

Religious freedom was once held in such high esteem that Congress was almost unanimous on the Religious Freedom Restoration Act less than 30 years ago, and Bill Clinton supported it and signed it. Today, it generally appears in scare quotes, often with intensifiers (e.g., "so-called ‘religious freedom’"), and is to the cultural left a bugaboo like saying "George Soros" to the cultural right.

NPR mis-reported the primary objections to The Equality Act, a bit of liberal groin piety analogous to tax cuts on the right, and I can’t help but suspect that they did so to "poison the well." Selma envy is alive and well as a prime motivation of today’s progressivism.

Barstool Conservatives and other delights

What Trump recognized was that there are millions of Americans who do not oppose or even care about abortion or same-sex marriage, much less stem-cell research or any of the other causes that had animated traditional social conservatives. Instead he correctly intuited that the new culture war would be fought over very different (and more nebulous) issues: vague concerns about political correctness and “SJWs,” opposition to the popularization of so-called critical race theory, sentimentality about the American flag and the military, the rights of male undergraduates to engage in fornication while intoxicated without fear of the Title IX mafia. Whatever their opinions might have been 20 years ago, in 2021 these are people who, with varying degrees of enthusiasm, accept pornography, homosexuality, drug use, legalized gambling, and whatever GamerGate was about. On economic questions their views are a curious and at times incoherent mixture of standard libertarian talking points and pseudo-populism, embracing lower taxes on the one hand and stimulus checks and stricter regulation of social media platforms on the other.

… Meanwhile, a small number of earnest social conservatives will be disgusted. But I suspect that a majority of them will gladly make their peace with the new order of things.

This is in part because while Barstool conservatives might regard, say, homeschooling families of 10 as freaks, they do not regard them with loathing, much less consider their very existence a threat to the American way of life as they understand it. Social conservatives themselves have largely accepted that, with the possible exception of abortion, the great battles have been lost for good. Oberfegell will never be overturned even with nine votes on the Supreme Court. Instead the best that can be hoped for is a kind of recusancy, a limited accommodation for a few hundred thousand families who cling to traditions that in the decades to come will appear as bizarre as those of the Pennsylvania Dutch.

Matthew Walther, Rise of the Barstool conservatives (emphasis added).

We can quibble over the label, but I think it’s fair to say that a lot of social conservatives have resigned themselves to voting for people who “do not regard them with loathing, much less consider their very existence a threat to the American way of life as they understand it.”

I understand the temptation. I considered voting Democrat in the primaries to vote for Bernie, the Democrat who struck me as so fixated on advancing socialism that he had little energy left for anti-Christian pogroms. But I didn’t, and although I’m under no illusions about reversing losses on the issues I’ve loved and lost, a social issue platform of “meh” is not good enough for my vote.


For hundreds of years at common law, moreover, while infertility was no ground for declaring a marriage void, only coitus was recognized as consummating (completing) a marriage. No other sexual act between man and woman could. What could make sense of these two practices?

Ryan T. Anderson et al., What Is Marriage?

I know the battle is lost, but I still can’t resist the opportunity to remind people that same-sex marriage swallows the hedonic marriage view lock, stock and barrel, and conservatives are justified if they ask (as fewer and fewer do) why government should be in the business of issuing licenses for people to enter what amounts to no more than relatively long-term pleasurable pairings.


Tesla posted its first full year of net income in 2020 — but not because of sales to its customers.

Eleven states require automakers sell a certain percentage of zero-emissions vehicles by 2025. If they can’t, the automakers have to buy regulatory credits from another automaker that meets those requirements — such as Tesla, which exclusively sells electric cars.

It’s a lucrative business for Tesla — bringing in $3.3 billion over the course of the last five years, nearly half of that in 2020 alone. The $1.6 billion in regulatory credits it received last year far outweighed Tesla’s net income of $721 million — meaning Tesla would have otherwise posted a net loss in 2020.

“These guys are losing money selling cars. They’re making money selling credits. And the credits are going away,” said Gordon Johnson of GLJ Research and one of the biggest bears on Tesla shares.

Tesla top executives concede the company can’t count on that source of cash continuing.

Tesla’s dirty little secret: Its net profit doesn’t come from selling cars


For many years, congressional Republicans have operated under a few rules:

* My way or the highway (you’re with the party consensus or you’re against the party).
* Politics is a zero-sum game (so there is no such thing as a compromise that can benefit both sides).
* Don’t fraternize across the aisle (which might lead to learning from Democrats or even wanting to compromise with them).

In the last five years, they added two more: If you don’t have something nice to say about Donald Trump, say nothing at all and If you repeat a lie enough times, you can act as if it’s true.

Now that the Republicans have lost control of the Senate, the House, and the presidency, they are both emboldened and scared at the same time. Emboldened because they can revert to their natural mode of obstructionism without responsibility for governing. And scared because two of President Biden’s main themes so far—his pleas for unity and his commitment to reality—directly threaten their tactics of division and fantasy.

The QAnon rioters were gone from the Capitol by the end of the day on January 6, but QAnon is now represented by outspoken members of Congress. It is disturbing to hear Nancy Pelosi say, as she did this week, “The enemy is within.” But she’s not wrong.

Brian Karem, The GOP Has Nothing to Offer – The Bulwark


My take on this is simple: It is better for a good book not to be taught at all than be taught by the people quoted in that article. Yes! — do, please, refuse to teach Shakespeare, Homer, Hawthorne, whoever. Wag your admonitory finger at them. Let them be cast aside, let them be scorned and mocked. Let them be samizdat. Let them be forbidden fruit.

They will find their readers. They always have — long, long before anyone thought to teach them in schools — and they always will.

Alan Jacobs


If you were looking for the faith-free version of [Cicely] Tyson’s life, the natural place to turn was The New York Times.

This story did a great job of capturing her impact on American culture, especially in terms of the sacrifices she made to portray African-American life with style, power and dignity. Here are two crucial summary paragraphs on that essential theme:

“In a remarkable career of seven decades, Ms. Tyson broke ground for serious Black actors by refusing to take parts that demeaned Black people. She urged Black colleagues to do the same, and often went without work. She was critical of films and television programs that cast Black characters as criminal, servile or immoral, and insisted that African-Americans, even if poor or downtrodden, should be portrayed with dignity.

“Her chiseled face and willowy frame, striking even in her 90s, became familiar to millions in more than 100 film, television and stage roles, including some that had traditionally been given only to white actors. She won three Emmys and many awards from civil rights and women’s groups, and at 88 became the oldest person to win a Tony, for her 2013 Broadway role in a revival of Horton Foote’s ‘The Trip to Bountiful.'”

But the only reference to her Christian faith — negative, of course — came in this bite of biography:

“Cicely Tyson was born in East Harlem on Dec. 19, 1924, the youngest of three children of William and Theodosia (also known as Frederica) Tyson, immigrants from the Caribbean island of Nevis. Her father was a carpenter and painter, and her mother was a domestic worker. Her parents separated when she was 10, and the children were raised by a strict Christian mother who did not permit movies or dates.”

The Times also offered an “appraisal” of Tyson’s career with this striking headline: “Cicely Tyson Kept It Together So We Didn’t Fall Apart.

The New York Times is important, of course, but it is even more important that the Associated Press served up three stories about Tyson’s life, career and cultural impact without a single reference to her Christian faith (other than a fleeting reference to God in a Michelle Obama tribute quotation). These are the stories that would appear in the vast majority of American newspapers.

Now, I am happy to note that the Los Angeles Times package about Tyson did a much better job of weaving her own words into its multi-story package about her death.

It was hard to edit God out of Cicely Tyson’s epic story, but some journalists gave it a try — GetReligion


Senate Minority Leader Mitch McConnell waded into the intra-GOP squabbles last night, declaring Rep. Liz Cheney “an important leader in our party and in our nation” and decrying Rep. Marjorie Taylor Greene’s embrace of “loony lies and conspiracy theories” as a “cancer for the Republican Party.”

The Morning Dispatch

Memo to a**h*le Matt Gaetz: If you shoot at the GOAT’s friend, you’re gonna hafta kill the GOAT, too. And you didn’t:

What Wednesday did reveal, however, is the relative strength of the GOP’s various factions. Only 10 House Republicans voted to impeach President Trump last month; on a secret ballot, 145 supported Cheney’s right to do so. A staggering 139 House members objected to the electoral results in at least one state on January 6; on a secret ballot, “only” 61 wanted to boot Cheney for her vote of conscience.

Conservatives concerned with the direction of the GOP in recent years may take solace in these discrepancies. As we’ve written repeatedly, the majority of Republican lawmakers here in Washington are far less Trumpy personally than they would ever let on. But on a political level, the public persona is the one that matters: It’s what voters see, how narratives are shaped, and how decisions are made.

At some point, elected Republicans may once again feel comfortable speaking their whole mind. But not yet. Expect things to revert to normal when the cameras are back on today during the vote to punish Greene.

After all, according to a new Axios/SurveyMonkey poll, Greene is significantly more popular with GOP voters than Cheney is, +10 net favorability to -28.

The Morning Dispatch: Cheney Triumphs in Conference Vote


“Trump was our greatest champion, and it still wasn’t enough. He tried his very best. He did so much, but he’s only one man…I even helped stormed(sic) the capitol today, but it only made things worse…Why, God? Why? WHY HAVE YOU FORSAKEN US? Unless…Trump still has a plan?”

25-year-old LARPER/Loser Jack Griffith, who didn’t even vote in the election he was protesting. Unmistakably reminds me of the Ur-story instantiated here. “I did help. I sent an election.”


Why don’t I think of gentle mockery more often? It’s so much more effective a response to stupidity than my rage is. Jewish Space Laser Agency: We didn’t start the fire – The Forward


The reason why cancel culture has alarmed so many Americans is not because, say, Holocaust deniers face public shame or white supremacists can’t find jobs on network television. It’s because even normal political disagreement has generated extreme, punitive backlash. It’s because intolerant partisans try to treat mainstream dissent as the equivalent of Holocaust denial or white supremacy.

David French, Can We Have (Another) Conversation About Cancel Culture?


James Dobson … is now telling his followers that the outcome of the presidential election remains “unresolved.”

“Sadly, the highest court in the land didn’t review a word of the overwhelming volume of evidence,” wrote the 84-year-old Dobson, whose former employee, Jenna Ellis, was a member of Rudolph Giuliani’s “crack legal team” that sought to overturn election results in dozens of unsuccessful cases.

In the months since the election, the Colorado Springs-based Focus on the Family has regularly provided election skeptics with plentiful ammunition and has embraced men and women in Congress who voted to overturn state election results. Meanwhile, Focus’s partner organization in Washington, D.C., the Family Research Council, continues to claim the election was stolen, and that Antifa—not Trump supporters—caused the Capitol attack on Jan. 6. (There is no evidence to suggest Antifa led the attack, while FBI investigations have linked several militia and far-right extremist groups to the violence.)

… Before the election, Focus, Dobson and their numerous affiliated organizations promoted Trump. After the election, these organizations have promoted unfounded claims of election fraud. And after the Jan. 6 attack on the Capitol, they’ve remained silent about the politicians they’ve endorsed who participated in or incited the insurrectionist mob.

While Christianity teaches that all people sin and fall short of the glory of God, The Daily Citizen promotes heresy: only liberals sin. Reports about Democrats violating their own COVID restrictions (House Speaker Nancy Pelosi and California Governor Gavin Newsom) are a regular feature. Only libs engage in political violence (“12-Year-Old Boy Assaulted by Woman for Pro-Trump Sign, Police Say”).

Steve Rabey, How evangelical media ministry Focus on the Family fueled lies and insurrectionists.

I have quibbled about whether flakes like Paula White qualify as “evangelical.” There is no quibbling about James Dobson: he’s as mainstream evangelical as they come. His bearing of false witness about the election is very wicked.


While pundits (myself included) have spent an inordinate amount of time over the past four years gravely pondering what Republican politics would look like post-Trump, these members of the House GOP [Lauren Boebert, Madison Cawthorn, Paul Gosar, Matt Gaetz, Louie Gohmert, Jim Jordan and Marjorie Taylor Greene] have given us what now looks to be the most plausible answer. Rather than a smarter, more responsible vehicle for enacting a set of distinctively Trumpian policies on trade, immigration, and foreign policy, let alone a reversion to the pre-Trump status quo (Romney-Ryan 2.0), we’re going to get a politics of bilious, lizard-brained idiocy along with intentionally cultivated and playacted outrage.

It’s certainly newsworthy when a just-elected congresswoman says something bizarre. But is it still newsworthy the 10th time she does it? Or the 100th? Maybe it is in the sense that it will generate strong ratings and give on-air talent something sensational to talk about. Is it really telling people anything new? Anything they need to know? I don’t see how.

What it does, far more, is give a powerful megaphone to someone who above all else craves national attention for her obsessions and derangements. In this respect, news organizations that place Greene and others like her at the center of the news cycle are being played. By incentivizing the madness, rendering it a sure path to national fame and notoriety, they play a new and pernicious role in the political ecosystem — as unintended facilitators of fascism, American style.

If the media and the leadership of both political parties really wanted to cut Greene down to size, they would deprive her of what she wants and needs most of all: our attention.

Damon Linker, Marjorie Taylor Greene is getting exactly what she wants


If Donald Trump was the Sorcerer’s Apprentice, Josh Hawley is the Sorcerer’s Apprentice’s Apprentice. They have summoned and unleashed dark forces.


You can read most of my more impromptu stuff here or join me and others on micro.blog. You won’t find me on Facebook any more, and I don’t post on Twitter (though I do have an account for occasional gawking).

Inauguration Day

At noon today, to my extreme delight, the abominable and detestable Donald Trump was finally deprived of the White House (he actually left earlier) and the symbolic and substantive accoutrements thereof (which he retained until noon).

I am less delighted that the price we pay for that is Joe Biden.

But to my countrymen who are Democrats: Thanks. You surely could have done much worse than Biden from the perspective of an observant Orthodox Christian who still, reflexively and by conviction, leans conservative, especially on cultural issues.

Over the next four years, I will criticize Biden, and if Kamala Harris plays an active role, I’m likely to more harshly criticize her (based on her track record, which I assume reflects her actual convictions and wasn’t just pandering a bit to the California Left). But I will remember the alternative, too.

I hope that the Republicans don’t engage in obstructionism to pander to their own bane, a substantial number of Flight 93/MAGA/QAnon ideologues who profess the sheer evil of all things Democrat. The nation needs massive cooperation across the aisles from those (few? many?) of good will in both major parties.

Let’s leave it there and enjoy today’s celebrations.

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.

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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.

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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.

“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.

* * * * *

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.

* * * * *

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

* * * * *

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.)

* * * * *

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).