Ephemera, 2/12/19

1

Apropos of gazing on the Jeff Bezos crotch selfies and suchlike, past and future:

[H]aving a gander at the daily catch of ill-gotten erotica seems hard to fit into any preexisting category of wrongdoing. After all, looking at it doesn’t make you responsible for the initial invasion involved in stealing it. Not looking at it won’t put it back where it was, so to speak: What’s public is relentlessly public. Looking also doesn’t mean you have to participate in any kind of public shaming or pile-on. So what’s the harm in simply knowing what somebody texted to somebody else?

When it comes to viewing leaked sexual ephemera, the knowing is its own harm. This doesn’t necessarily count for every kind of secret; being aware of somebody’s private dislike of a mutual friend, for instance, doesn’t represent the same kind of violation as having ungranted sexual knowledge of them, because sex is different from other things. The exclusivity, the secrecy, that’s all part of the point — they’re the essential ingredients of intimacy. And simply knowing the details without invitation jeopardizes that.

Elizabeth Breunig. This principle can be extended to pornography generally, but I won’t go there just in case some reader believes in “ethically-sourced porn.”

2

For over 50 years, the Democratic Party has carried the banner of racial and gender equality, and all the more so during the Trump era. In contrast to an increasingly dystopian Republican Party, Democrats from the left and the center have united behind an idealistic image of their party as a rainbow coalition of resistance against racism and sexism.

The last 10 days in Virginia have thrown all of that into disarray — and demonstrated that political power will always trump political idealism.

For the Democratic Party, the recent series of blackface and sexual assault scandals at the top of the state’s leadership at first seemed like a moment for a thorough house cleaning. By the standards of an institution that has recently redefined itself in part by what Donald Trump and the Republicans are not, we would expect Democratic politicians to call for everyone’s resignation. Racism should have no quarter in the Democratic Party. Neither should sexual assault.

But reality, as the party is once again learning, is never that simple, especially where power is involved.

Leah Wright Rigueur

Note the tacit admission: It was never about purity. It was always about political posturing (and, thus, pursuing power).

I’m especially amused that “an assistant professor of public policy at the Harvard Kennedy School of Government” should find herself bereft of enough insights to populate a guest column without repeating the same points in very thin disguise.

3

Identity politics is the key to understanding the ACLU’s apparent change of heart. The antiboycott laws the ACLU has defended are meant to protect gays and lesbians, an identity group they favor. The ACLU acknowledges that in many states it is “legal to fire or refuse to hire someone based on their sexual orientation,” but argues that companies that do so “must not be allowed to do so with taxpayer dollars.” It inexplicably ignores that the logic of those antiboycott laws applies equally to Israel.

The ACLU may think that refusing to do business with people because of their sexuality is immoral while refusing to do business with people connected with Israel is a blow for justice. That’s an intelligible political position, but it’s lousy First Amendment jurisprudence. First Amendment protections are the same regardless of what one thinks of the underlying conduct.

I played a role in developing the state anti-BDS laws, submitting testimony to legislatures and advising private groups that supported the measures. To avoid any constitutional doubts, I stuck to the model of antiboycott laws that the ACLU supports, comfortable in the knowledge that their constitutionality was unquestioned. I underestimated how much changes when sexual identity is replaced with Israeli identity.

There is more at stake here than hypocrisy. The ACLU’s enthusiasm for Israel boycotts has led it to take legal positions that threaten to undermine the antidiscrimination norms it has worked for decades to achieve. Now it is prepared to risk legal protections for sexual minorities for the sake of creating a constitutional right to boycott Jews. The ACLU probably hopes to have it both ways, arguing that boycotts of Israelis are “political” and boycotts of gays and lesbians are just mean. But courts won’t maintain one standard for boycotts of progressives’ favored targets and another standard for everyone else.

Eugene Kontorovich. A very interesting point I hadn’t seen made before. I consider vindicated my opposition to anti-BDS law and my opposition to indiscriminate extension of anti-discrimination laws.

4

Mr. Cuomo is blaming the state’s $2.3 billion budget shortfall on a political party that doesn’t run the place. He says the state is suffering from declining tax receipts because the GOP Congress as part of tax reform in 2017 limited the state-and-local tax deduction to $10,000.

“What it does is it has created two different tax structures in this country,” Mr. Cuomo said Monday. “And it has created a preferential tax structure in Republican states. It has redistributed wealth in this nation from Democratic states” to “red states.” In reality, the once unlimited deduction allowed those in high tax climes to mitigate the pain of state taxes. It amounted to a subsidy for progressive policies.

… The Tax Foundation reported last month that repealing the cap would “almost exclusively provide tax relief to the top 20 percent of income earners, the largest tax cut going to the top 1 percent of earners.” The government would lose $600 billion over 10 years. This must be the first time in years that a Democrat has said the government needs less money, or that the rich need a tax cut.

The real problem is New York’s punitive tax rates, which Mr. Cuomo and his party could fix. “People are mobile,” Mr. Cuomo said this week. “And they will go to a better tax environment. That is not a hypothesis. That is a fact.” Maybe Mr. Cuomo should stay in Albany and do something about that reality.

Wall Street Journal Editorial Board. Cuomo’s complaint about people leaving the state now vindicates the Editorial Board’s characterization that the unlimited deduction amounted to a subsidy for [big-spending] progressive policies.

5

Meghan Murphy, a gender-politics blogger, alleges that Twitter violated unfair-competition law when it changed its hateful-conduct policy late last year. Under Twitter’s new policy, users can be banned for calling a transgender individual by their pre-transition names or referring to them with the wrong pronouns

Ms. Murphy says that Twitter locked her account on Nov. 15, telling her that to regain control of her account, she would need to remove two tweets she posted the prior month. One tweet stated: “How are transwomen not men? What is the difference between a man and a transwoman?” The other said: “Men aren’t women.”

Ms. Murphy deleted the tweets, and posted a response to Twitter, saying, “I’m not allowed to say that men aren’t women or ask questions about the notion of transgenderism at all anymore?” The post went viral, according to her suit, receiving 20,000 likes. Days later, Twitter informed Ms. Murphy that she needed to delete this tweet as well ….

I’m glad I left Twitter. Any platform that hostile to reality is nowhere I want to be.

But a coin just dropped: trans women are nominalist women but realist men. An awful lot of what ails us in Nominalism in one drag or another.

6

Parent: Are you worried that students will be suckered by the seductiveness of figures like Rousseau?

Dean: Yes.

Parent: Does it not seem dangerous to expose students to figures like Rousseau?

Dean: Yes, it seems dangerous.

Parent: Then why do it?

Dean: Because I am far more worried that students who never encounter Rousseau will get suckered by the delicious mediocrity of the world and be mindlessly swept along with the spirit of our age …  Classical schools tend to teach books which require a tutor or a guide. Rousseau requires a guide, as does St. Augustine, say.

Parent: So you’re not opposed to new things?

Dean: Heavens, no. I want to be patient, though, and I want to second guess myself. A great many “life-changing” bestsellers are read once, then shelved, never picked up a second time, and summarily forgotten by the time the next life-changing bestseller comes out.

Parent: So what books would you advise someone like myself to read?

Dean: I would advise you to read books which are good for your soul, and to force yourself to read classics as often as possible.

Joshua Gibbs

7

Rod Dreher’s test kitchen is starting to get feedback on his newest recipes.

8

My Church doesn’t use name tags, but if it did, one could do worse than this.

One also could do better, like “I once was dead but now I live.” (As Fr. Stephen Freeman truly says, “Christ did not come to make bad men good, but to make dead men live.”)

* * * * *

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Thursday, August 9, 2012

  1. A Rabbi goes to bat for his tradition – and mine.
  2. Two cheers for sequestration.
  3. The Secret Unity of Muslims and Sikhs.
  4. America’s Enlightenment, and Evangelical, Foundings.
  5. NIMBY and The Good Life.
  6. The Absurdity of Categorical Discrimination Bans.
  7. Geddoutahere!

Continue reading “Thursday, August 9, 2012”

CLS/Hastings update

The arguments were had before the Supremes yesterday, after my post and bold-if-not-foolish prediction.

Gordon Crovitz of the Wall Street Journal summarizes nicely here:

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez’s logic is taking us.

“[U]nder Hastings’ forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings’ forum,” argues their brief. “That is a patently unreasonable way to ‘promote a diversity of viewpoints.'”

Sadly, it appears that this is shaping up in the popular press as a case about the legal status anti-gay bigotry if religiously motivated. Few in the press note that the CLS sexuality standards bar from office unrepentant straight fornicators as well as unrepentant gay fornicators.

As well it should: so far, the sexual revolution and no-fault divorce have done a heckuva lot more damage to the formation of Christian consciences and the institution of marriage than has the gay rights movement.

Christian Legal Society and Hastings Law School

Not surprisingly, the New York Times editorial on todays hot Supreme Court ticket gets it wrong, starting with the facts. But the Washington Post gets it right, influenced, I assume, more by Jonathan Turley’s analysis that by Newt Gingrich’s epithet-laden call to arms.

The New York Times is factually wrong, as I understand it, that the Christian Legal Society Hastings Chapter “bars non-Christian and gay students.” CLS allows all students to attend meetings, but CLS bylaws barred non-Christians, gays and non-celibate heterosexual students from serving as officers or voting members. Even on its sexual standards, it recognizes human frailty: students, gay or straight, who lapse into unchastity are allowed as members and officers if they’re repentant. It’s those who reject the virtue of Christian chastity who are excluded.

Moreover, religions typically are exclusive. The Hastings policy in effect prefers non-exclusive religions (e.g., Unitarian Universalism – though I recall a debate even there about whether a pagan polytheist can style himself Unitarian – the “belief in, at most, one God”) over typical religions, despite the Constitutional requirement of neutrality of government between religions.

This is the slippery constitutional slope down which government starts the slide when it exalts faddish and undiscerning equality (by undiscerning, I mean disregarding relevant distinctions; I’m not intending to promote invidious discrimination) over explicit mandates of the Bill of Rights.

I believe that the government itself should not discriminate on irrelevant bases, and that sexual orientation, for instance, is generally irrelevant. But it is a much different matter, it seems to me, for government to fund things with tax dollars but require as a condition of funding that recipients not discriminate, however nonviolently, based on matters that are relevant within the logic of the recipient’s associative purposes. The controlling principal in funding, I believe and predict, is that of the Supreme Court’s “Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.” That quote, from Jonathan Turley’s discerning column, gets to the heart of the matter.

By the way, this dispute reminds me of a maxim that I believe I coined a few decades ago: In a regime of strict separation of Church and State, when government gets bigger, the Church is forced to get smaller. That’s why as a life-long Churchman (who has, however, switched Churches) I’m biased against big government.

Three additional matters that I don’t think qualify as an update (I simply failed to mention them although I intended to):

  1. The possibility that making sexual orientation a protected class would eventually lead to denial of tax exemption to religions that do not countenance unrepentant homosexuality has long been a powerful argument to me, based on the Bob Jones University tax exemption decision (mentioned in Jonathan Turley’s column), and Turley recognizes the power of that argument in his final paragraph or two or his column.
  2. Hastings law school will no doubt attempt to rely on the case Employment Division v. Smith, which abandoned a precedent of moderate duration in favor of the rule that laws may legitimately impinge on the free exercise of religion provided they are neutral laws of general application – a surprisingly difficult test to meet (some powerful group generally lobbies for an exemption, which prevents the law being “of general application”). Hastings will argue that its nondiscrimination policy applies to every student group seeking funding. I still think the “fund them all or fund none” principle will prevail. Denial of funding because of a belief nonviolently applied is much different than generally banning a particular behavior regardless of the motivation.
  3. For almost 25 years, I was a member of the Christian Legal Society. I stopped renewing my membership finally when I realized that CLS was pervasively Protestant. Although they accept as members Orthodox and Catholics who can subscribe their doctrinal beliefs, as could I, I simply was not being “edified” by their distinctive “take” on things.