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Anti-First Amendment Culture Emerges

I’m fairly confident that most American religious conservatives — Christian ones, anyway — still have no idea what is coming our way. Did you see the results from the new Brookings survey of college students and the First Amendment? [1] Before I give you the results, here, from the introduction, is why we should all care, even if we’re not in college:

[W]hat happens on campuses often foreshadows broader societal trends. Today’s college students are tomorrow’s attorneys, teachers, professors, policymakers, legislators, and judges. If, for example, a large fraction of college students believe, however incorrectly, that offensive speech is unprotected by the First Amendment, that view will inform the decisions they make as they move into positions of increasing authority later in their careers.

To underscore that point, remember that the First Amendment, like the rest of the Constitution, only means what judges say it means. The First Amendment was not believed to protect pornography, until the US Supreme Court said it did.

Brookings found that “freedom of expression is deeply imperiled on U.S. campuses” — and not just elite colleges and boutique liberal arts schools, either. Take a look at a couple of excerpts from the report:

Also, please note the high numbers of Republican students who agree with anti-First Amendment views. Slightly more Republican students believe violence is acceptable to shut down speech than Democrats! And not too many more GOP students believe the First Amendment protects hate speech than Democratic or Independent students.

The Brookings survey did not go beyond “hate speech” and the First Amendment, but it doesn’t require wild-eyed speculation to imagine what these students think about the First Amendment’s guarantees of religious liberty — especially when the religion in question is deemed “hateful” by them.

Take a look at this new ruling out of Minnesota: [2]

A federal judge has dismissed a Minnesota couple’s lawsuit challenging a state law for the right to refuse to shoot wedding videos for same-sex couples.

Chief U.S. District Judge John Tunheim in Minneapolis dismissed Carl and Angel Larsen’s case Wednesday.

The St. Cloud couple, who own a videography company, Telescope Media Group, sued over a provision of the Minnesota Human Rights Act that bars discrimination by businesses, the Star Tribune reported. They argued that the law amounted to “a state effort to stamp out expression opposing same-sex marriage,” and they sought to post a notice on their company’s website that they won’t shoot same-sex weddings, based on their religious beliefs.

In his ruling, Tunheim described that as “conduct akin to a ‘White Applicants Only’ sign” that may be outlawed without infringing on First Amendment rights.

This case is a lot like the Colorado wedding cake maker’s case that will be heard this term by the US Supreme Court, so it’s possible that the SCOTUS ruling will land on the side of religious liberty. We’ll see. The broader point here is that we have a federal judge declaring, in effect, that religious belief privileging traditional marriage is tantamount to hate. You don’t need a weatherman to know which way the wind blows for religious conservatives in this country.

Let me be clear: the judge, in his ruling, said that the couple could publicly state their opposition to same-sex marriage on their website, as long as they did not turn away gay couples seeking their professional services. This is not a question of speech, strictly speaking, but of expressive conduct. The bottom line is that if you want to go into the wedding videography business in this jurisdiction, you had better be prepared to shoot gay weddings — or find another line of work. As I write in The Benedict Option [3]:

 

Plus, companies that don’t abide by state and federal antidiscrimination statutes covering LGBTs will be not be able to receive government contracts. In fact, according to one religious liberty litigator who has had to defend clients against an exasperating array of antidiscrimination lawsuits, the only thing standing between an employer or employee and a court action is the imagination of LGBT plaintiffs and their lawyers.

“We are all vulnerable to such targeting,” he said.

Says a religious liberty lawyer, “There is no looming resolution to these conflicts; no plateau that we’re about to reach. Only intensification. It’s a train that won’t stop so long as there is momentum and track.”

David Gushee, a well-known Evangelical ethicist who holds an aggressively progressive stance on gay issues, published a column in 2016 noting that the middle ground is fast disappearing on the question of whether discrimination against gays and lesbians for religious reasons should be tolerated.

“Neutrality is not an option,” he wrote. “Neither is polite half-acceptance. Nor is avoiding the subject. Hide as you might, the issue will come and find you.”

Public school teachers, college professors, doctors, and lawyers will all face tremendous pressure to capitulate

to this ideology as a condition of employment. So will psychologists, social workers, and all in the helping professions; and of course, florists, photographers, backers, and all businesses that are subject to public accommodation laws.

Christian students and their parents must take this into careful consideration when deciding on a field of study in college and professional school. A nationally prominent physician who is also a devout Christian tells me he discourages his children from following in his footsteps. Doctors now and in the near future will be dealing with issues related to sex, sexuality, and gender identity but also to abortion and euthanasia. “Patient autonomy” and nondiscrimination are the principles that trump all conscience considerations, and physicians are expected to fall in line.

“If they make compliance a matter of licensure, there will be nowhere to hide,” said this physician. “And then what do you do if you’re three hundred thousand dollars in debt from medical school, and have a family with three kids and a sick parent? Tough call, because there aren’t too many parishes or church communities who would jump in and help.”

This is coming, and coming fast and hard. What does this have to do with the First Amendment attitudes of college students? Simply this: that in the future, those designated as “haters” will face significant discrimination, marginalization — and perhaps even violence by the rising intolerance of a generation raised on a sham ideology of diversity.

Re-read the piece I did about “Professor Kingsfield” in the immediate aftermath of the Indiana RFRA debacle [4] (which occurred just before the Obergefell ruling in 2015). Excerpt:

What prompted his reaching out to me? “I’m very worried,” he said, of events of the last week. “The constituency for religious liberty just isn’t there anymore.”

Like me, what unnerved Prof. Kingsfield is not so much the details of the Indiana law, but the way the overculture treated the law. “When a perfectly decent, pro-gay marriage religious liberty scholar like Doug Laycock, who is one of the best in the country — when what he says is distorted, you know how crazy it is.”

“Alasdair Macintyre is right,” he said. “It’s like a nuclear bomb went off, but in slow motion.” What he meant by this is that our culture has lost the ability to reason together, because too many of us want and believe radically incompatible things.

But only one side has the power. When I asked Kingsfield what most people outside elite legal and academic circles don’t understand about the way elites think, he said “there’s this radical incomprehension of religion.”

“They think religion is all about being happy-clappy and nice, or should be, so they don’t see any legitimate grounds for the clash,” he said. “They make so many errors, but they don’t want to listen.”

To elites in his circles, Kingsfield continued, “at best religion is something consenting adult should do behind closed doors. They don’t really understand that there’s a link between Sister Helen Prejean’s faith and the work she does on the death penalty. There’s a lot of looking down on flyover country, one middle America.

“The sad thing,” he said, “is that the old ways of aspiring to truth, seeing all knowledge as part of learning about the nature of reality, they don’t hold. It’s all about power. They’ve got cultural power, and think they should use it for good, but their idea of good is not anchored in anything. They’ve got a lot of power in courts and in politics and in education. Their job is to challenge people to think critically, but thinking critically means thinking like them. They really do think that they know so much more than anybody did before, and there is no point in listening to anybody else, because they have all the answers, and believe that they are good.”

On the conservative side, said Kingsfield, Republican politicians are abysmal at making a public case for why religious liberty is fundamental to American life.

“The fact that Mike Pence can’t articulate it, and Asa Hutchinson doesn’t care and can’t articulate it, is shocking,” Kingsfield said. “Huckabee gets it and Santorum gets it, but they’re marginal figures. Why can’t Republicans articulate this? We don’t have anybody who gets it and who can unite us. Barring that, the craven business community will drag the Republican Party along wherever the culture is leading, and lawyers, academics, and media will cheer because they can’t imagine that they might be wrong about any of it.”

And there’s this. A reader I met recently in Nashville sent me a reference to the late René Girard’s book I See Satan Fall Like Lightning  [5] (the title is a reference to Jesus Christ’s words in Luke 10:18 [6]). Girard, as you may know, was one of the great geniuses of our time. Pascal-Emanuel Gobry’s remembrance of Girard upon his 2015 death is a good introduction to his thought [7], the most important aspect of which is Girard’s stunning insights into the social, religious, and anthropological origins of violence.

In his Satan book, Girard discusses victimization and scapegoating. He writes:

The victims most interesting to us are always those who allow us to condemn our neighbors. And our neighbors do the same. They always think first about victims for whom they hold us responsible.

This will ring distressingly true to those who see any discussion of subtlety, paradox, or complexity in public debate about sexuality, gender identity, religion and rights shouted down as aiding and abetting suicide, violence, and so forth. It’s very easy to conclude that some of the most ardent defenders of LGBT folks (or other favored minorities) undertake their crusades as much to punish those they despise as to defend the defenseless.

Girard goes on to say that “the most effective power of transformation is not revolutionary violence but the modern concern for victims.” Here’s where it gets intense:

The attempt by Nietzsche and Hitler to make humankind forget the concern for victims [taught uniquely by the Bible] has ended in a failure that seems definitive, at least for the moment. But it is not Christianity that profits from the victory of the concern for victims in our world. It is rather what I think must be called the other totalitarianism, the most cunning and malicious of the two, the one with the greatest future, by all evidence. At present it does not oppose Judeo-Christian aspirations but claims them as its own and questions the concern for victims on the part of Christians (not without a certain semblance of reason at the level of concrete action, given the deficiencies of historical Christianity). The other totalitarianism does not openly oppose Christianity but outflanks it on its left wing.

… The most powerful anti-Christian movement is the one that takes over and “radicalizes” the concern for victims in order to paganize it. The powers and principalities want to be “revolutionary” now, and they reproach Christianity for not defending victims with enough ardor. In Christian history they see nothing but persecutions, acts of oppression, inquisitions.

The other totalitarianism presents itself as the liberator of humanity. In trying to usurp the place of Christ, the powers imitate him in the way a mimetic rival imitates his model in order to defeat him. They denounce the Christian concern for victims as hypocritical and a pale imitation of the authentic crusade against oppression and persecution for which they would carry the banner themselves.

In the symbolic language of the New Testament, we would say that in our world Satan [whose name means “Accuser” — RD], trying to make a new start and gain new triumphs, borrows the language of victims. Satan imitates Christ better and better and pretends to surpass him. This imitation by the usurper has long been present in the Christianized world, but it has increased enormously in our time. The New Testament evokes this process in the language of the Antichrist. To understand this title, we should de-dramatize it, for it expresses something banal and prosaic.

The Antichrist boasts of bringing to human beings the peace and tolerance that Christianity promised by has failed to deliver. Actually, what the radicalization of contemporary victimology produces is a return to all sorts of pagan practices: abortion, euthanasia, sexual undifferentiation, Roman circus games galore but without real victims, etc.

Neo-paganism would like to turn the Ten Commandments and all of Judeo-Christian morality into some alleged intolerable violence, and indeed its primary objective is their complete abolition. Faithful observance of the moral law is perceived as complicity with the forces of persecution that are essentially religious.

Girard said that in our day, Christianity is “the indispensable scapegoat.” The forces now beginning to manifest in society have been building for a long time. They will have their day, making scapegoats — and perhaps one day martyrs — of believing orthodox Christians, all for the sake of avenging the victims for whom they hold Christian responsible.

In a culture coming to despise the First Amendment as a license to hate, attacks on religious institutions and religious people are going to intensify in the near future. If you’re not preparing for this, you’re illiterate at reading the signs of the times.

UPDATE: Reader Divinicus writes:

I know I’ve said this 100 times, but here is 101.

American Christians need to study the 17th-19th century Penal Laws in the United Kingdom [8]. Their purpose was to politically and socially marginalize Catholics, and they succeeded swimmingly.

Many of the Penal Laws were things which could never pass constitutional muster in the United States today (e.g. religious tests for public office, bearing arms, and serving in the military). But many are hauntingly similar to efforts and successes of the American cultural left today to socially proscribe conservative religious belief and practice, such as:

– exclusion from the legal professions and the judiciary;
– exclusion from elite colleges and universities;
– exclusion from teaching children; and
– ban on the custody of orphans.

The status of Catholics and the Catholic Church in Third Republic France [9] is another good example for American Christians to study, particularly the left’s successes in eliminating Catholics from the educational system at every level.

Those who do not learn history are doomed to repeat it.

89 Comments (Open | Close)

89 Comments To "Anti-First Amendment Culture Emerges"

#1 Comment By davido On September 22, 2017 @ 12:31 pm

This aspect of Girard’s thought hit me hard when I read it a couple weeks ago, as it jibes very well with Flannery O’Connor’s well-known remark about “tenderness without the Source of tenderness” leading to the gas chambers. I’m going to have to look to see if anyone’s done a Girardian reading of O’Connor…”

Hazel Motes’ “Church of Jesus Christ Without Christ” in Wise Blood.
Always an honor to cite the great Flannery O’Connor.

#2 Comment By JonF On September 22, 2017 @ 1:06 pm

Rod, whatever callow young-uns (or for that matter callow old fogeys) think about First Amendment stuff, the First Amendment is a hard, cold fact that is not going to be repealed (seriously, does anyone think that possible?) and it stands foursquare in the way of the things you fear. Rather than sounding a “Sky is falling” alarm the better response would be to start supporting hard-edged legal defenses– and yes, that means making deals with, gasp!, lawyers.

At the same time, though, let also remember that the First Amendment only acts against governmental targets– it does not inhibit private actors, including corporations, in any way whatsoever. So it seems to me that if one is worried about religious people suffering in the workforce then the proper strategy to to support workers rights against the prerogatives of the owning class. Siarlys has suggested a good idea several times here: a law banning terminations other than for job-related causes. Which, of course, has a snowball’s chance in Gehenna of finding any support on the Right. So are any of the religious freedom folks prepared to make a tactical alliance with the labor rights left on this? If not, then how serious are you about your cause? In politics deals must sometimes be made with the Devil.

#3 Comment By Siarlys Jenkins On September 22, 2017 @ 1:08 pm

We are becoming dhimmi.

That’s a snowflake remark if I ever heard one.

And Anne Frank’s family were in the attic, not in the basement.

This is why Russell Moore’s nonsensical desire to depend on precedent is doomed to failure.

Not really. Precedent simply doesn’t uphold Roy Moore’s personal passions.

#4 Comment By Erin M. On September 22, 2017 @ 2:24 pm

alan says:

You can’t trust secularists to defend anyone’s rights. Their only concern is power.

This just makes me sad. I mean, I guess I’m not sure what is meant by “secularist”, but to me it would simply imply someone who believes in the constitutional principle of separation of church and state.

Whatever his definition, I probably fall into it, and as I said, it makes me sad. The people that I know who are secularists (most of the people I know, including the religious ones) are precisely driven by principle. Just because our principles are different than yours doesn’t make them cynical or power-hungry. Sure, power is required to protect rights — as true for the rights that you want to protect as for the rights that I want to, but that’s as far as it goes.

Our constitution and legal system are a truly beautiful thing, because they give us a framework for how to proceed when rights come into conflict with each other. It would be lovely if we could protect everyone’s rights equally at all times, but that is quite simply impossible, and the courts do the incredibly important work of sorting through how to proceed when two sets of competing rights come into conflict. They do it imperfectly, but it’s a job that they take incredibly seriously. It gives me shivers to think about, because there is very little in this world that is more honorable and important.

The fact of the matter is that you cannot fully protect the rights of socially conservative Christians and the rights of gay people. It is a genuine clash of rights–nobody, seriously nobody, is interested in dismantling the church, and nobody is interested in restricting any rights of the church for its own sake. They are only interested in protecting the rights of others.

You may not see those rights as legitimate, or understand them at all. That is a failure to see on your part–we all have our failures to see in some area or another. Many, many liberals don’t see the rights that conservative Christians argue for as legitimate–I didn’t until I started reading Rod’s blog. It’s helped me to understand a perspective that I didn’t understand before. My previous failure didn’t stem from malice, but from my own from the ontological frameworks through which I viewed the world based on my own life experiences and exposures. For each of us, those frameworks will always be incomplete.

Point being that whether you can see it or not, there is a legitimate struggle for rights happening here, on both sides. Settling that dispute is always going to be a challenging moment as a culture, and someone is going to lose, at least a little bit–which sucks, but is in the interest of choosing the least evil, not of denying anyone their rights.

#5 Comment By TR On September 22, 2017 @ 3:38 pm

“This is the fruit of the post-modern takeover of the humanities.” No, it was postmodernism that pointed out that the acquisition of knowledge has always been about power. See the history of anthropology for an example. See the use of the “knowledge” of psychology, in a more u-to-date example to turn Guantanamo into a torture chamber.

#6 Comment By RinTX On September 22, 2017 @ 4:20 pm

I’ve said it before, but I think that the only way a Christian baker, photographer, florist, etc. will be able to avoid doing same-sex weddings without running afoul of anti-discrimination laws would be to issue a blanket statement of, “We don’t do weddings.”, (and then not do weddings).

The question then is, can a baker, photographer, florist, etc. succeed in business without weddings?

#7 Comment By Robert Sandstedt On September 22, 2017 @ 4:29 pm

So long as religious conservatives are exercising their freedoms by denying the rights of others, they will continue to be pushed to the fringes of society.
When a business owner uses their position of authority to infringe the rights of a distasteful group, they are naive to not expect societal and legal backlash.

The cardinal conservative complaint about SJW-ing and PC policing is nothing more than a hypocritical attempt to suppress distasteful speech. Stop it. Your whining about being told your speech and behavior is offensive is exactly thing you lament in your liberal counterparts. Stop pretending to be tough when you can’t abide criticism.

#8 Comment By ROB On September 22, 2017 @ 4:46 pm

The Penal Laws in Ireland did not destroy Catholicism. Made it harder for sure. Nominal Catholics in that country are doing their best to finish the job.

#9 Comment By Prof. Woland On September 22, 2017 @ 4:49 pm

This will be more persuasive when you get a random survey. (like what others have said above..)

Otherwise, this is too much like online polls that have been so accurate that they showed Ron Paul Winning Republican debates in 2012–because his supporters were particularly interested in voting in internet polls. ( [10] )

This doesn’t mean there isn’t an issue here. I’ve had my own arguments with SJW’s and younger folk about this on the left–but if you want to make serious claims–rather than just stoke outrage–the push to get actual SCIENTIFICALLY VALID polling on the same issue.

If you get the same numbers then–you will have a much stronger hammer to use in these things.

#10 Comment By Jesse On September 22, 2017 @ 5:10 pm

“A direct line from gay wedding videos to the Antichrist in 35 paragraphs. Dreherism at its finest.”

It’s amusing when you realize that it’s entirely likely that Rod’s grandkids will likely have the same exact views on social issues that he entirely opposes.

[NFR: Assuming you reproduce, yours might regard your views similarly. Things are changing so rapidly, and indeed convulsively, that I don’t think any of us can really say with confidence what two, three generations from now will believe. — RD]

#11 Comment By Joan from Michigan On September 22, 2017 @ 6:04 pm

and churches will soon be forced to allow them in their halls

When the laws forbidding discrimination against women in hiring (which have been on the books for decades now) are used them to force the Catholic Church to ordain women, then I’ll worry about this.

#12 Comment By The Color of Celery On September 22, 2017 @ 6:21 pm

Those who believe that driving on the Sabbath is wrong make sure to live within walking distance to their synagogue.

Those who believe drinking alcohol is wrong do not become bartenders.

Christians want to believe they own the culture and all should live as Christians. But they no longer own the culture and now they are the ones who bear the disapproval of society. They are the receivers of disapproval rather than those who provide it. How uncomfortable for them.

It has always been a successful propaganda technique to insist the enemy desires total elimination of the targeted group. What if, once Christians stop insisting they have the right to define culture for the masses, the masses ignore them? It’s entirely possible.

I know some neo-pagans. They are unconcerned with Christians unless Christians take a stance against them, and they must respond. Maybe Christians take themselves too seriously. Too much belief in a devil out to get them to analyze a threat correctly.

#13 Comment By Stephen On September 22, 2017 @ 6:42 pm

Two comments. First of all I would point out that the US constitution’s provision in article four prohibiting religious tests for public office was clearly aimed at American equivalents of the religious penal laws of the British.

On the other hand, the US itself enacted its OWN counterparts of those very same penal laws–albeit against political opponents rather than religious ones–when it enacted section 3 of the Fourteenth Amendment, a provision aimed at keeping Confederate supporters and sympathisers out of public office in the wake of the Civil War.

The second point is that there was a recent Constitution Day poll by the Annenberg Public Policy Centre. When asked what rights the First Amendment protects, less than half of American adults (48 percent) knew it protected freedom of speech, while more than a third (37 percent) could not list ANY of the rights it protected. A mere 3% knew it had a right to petition, only 10% could name the freedom of assembly, and freedom of religion did not get a much better score: 15%.

It gets worse. 20% were had no idea that the Amendment’s freedom of religion also protects atheists, while a third of Americans could not name any of the three branches of government and only a quarter could name all three.

#14 Comment By Jesse On September 22, 2017 @ 6:51 pm

“[NFR: Assuming you reproduce, yours might regard your views similarly. Things are changing so rapidly, and indeed convulsively, that I don’t think any of us can really say with confidence what two, three generations from now will believe. — RD]”

Well, Rod, this is the difference between me and you.

I hope my grandkids or grandnephews or random young people consider me an out of touch fuddy duddy who doesn’t understand modern life by time I’m an old man.

As a progressive, I’d consider that a fantastic accomplishment.

#15 Comment By Siarlys Jenkins On September 22, 2017 @ 8:14 pm

I’ve said it before, but I think that the only way a Christian baker, photographer, florist, etc. will be able to avoid doing same-sex weddings without running afoul of anti-discrimination laws would be to issue a blanket statement of, “We don’t do weddings.”, (and then not do weddings).

Or, maybe a pending U.S. Supreme Court decision will provide precisely the protection they need to make these common sense distinctions.

On the other hand, the US itself enacted its OWN counterparts of those very same penal laws–albeit against political opponents rather than religious ones–when it enacted section 3 of the Fourteenth Amendment, a provision aimed at keeping Confederate supporters and sympathisers out of public office in the wake of the Civil War.

Our constitution didn’t ban penal laws… we have laws against murder, arson, rape, assault, battery… As a nation we made a decision that religious belief was not relevant to the rights and duties of citizenship. We never made a decision that individuals could take up arms against the elected government because they didn’t like the election results, and no civil disability would ever be imposed upon them. That was punishment for acts, not belief. In fact, instances of invasion or rebellion are cause for temporary suspension of the writ of habeas corpus, and could have been cause for imprisonment or execution. That would not have been good policy, but denying leaders of a rebellion the ability to hold office in a reunited nation and subvert it to the cause that induced them to take up arms is only common sense. It should have been retained for life.

Sic semper analogy.

#16 Comment By Tom D On September 22, 2017 @ 8:33 pm

Generally, I’m quite liberal on social issues, but laws mandating what jobs photographers and videographers have to take make me extremely uncomfortable due to First Amendment freedom of speech concerns.

Specifically, I believe that photography and videography are speech, and so a government mandate that people in those two fields be required to photograph or film any type of wedding against their beliefs is a profound problem. And it’s not just an issue with sexual orientation, but also with religion (and perhaps other categories).

That said, I’m less sympathetic to the arguments of caterers and others — those things are services, not speech. And some other categories are probably gray areas…ie, the difference between buying a standard wedding cake versus requesting a specific message on the cake (the latter hits free speech issues, the former doesn’t).

#17 Comment By Michael On September 22, 2017 @ 9:19 pm

The “moral argument” presented by Rod applies to any marginalized group. William Rehnquist once wrote, “the minority has only those rights the majority chooses to give it.”

Rod gives a spirited defence of this core principle of conservative jurisprudence. Christians have a fundamental right, as a majority, to repudiate the extension of rights to the marginal group.

The Constitution itself contains no protection for minority groups per se. You can argue this case on legal or constitutional grounds. But it’s repugnant to every principle laid down by Jesus Christ. The Christian church reduces itself to a social club.

#18 Comment By Siarlys Jenkins On September 22, 2017 @ 10:31 pm

The Constitution itself contains no protection for minority groups per se.

True, although that doesn’t sustain Rehnquist’s dictum.

The 13th, 14th and 15th amendments were not about “minority rights.” They were about, race, color, and previous condition of servitude not being a basis for inequality with regard to citizenship. As it happened, those who benefited from the removal of this set of distinctions were a numerical minority.

Most of the rights enumerated apply to all persons, not to any or all minorities. Those who say “I’m a numerical minority, do I get some rights too?” are misguided. They have rights as persons, and whatever makes them “different” probably makes no difference.

Specifically, I believe that photography and videography are speech, and so a government mandate that people in those two fields be required to photograph or film any type of wedding against their beliefs is a profound problem.

Precisely. This not only makes a lot of sense, it also rests on well established Supreme Court precedent. As for caterers, yes, that is a service, but if their “service” is woven well into the substance of the ceremony, which is expressive, they might have a claim that they don’t want to be there. A cake off the shelf — there is nothing expressive about that.

#19 Comment By Potato On September 22, 2017 @ 11:16 pm

I think that none of the parties have clean hands in this case.

I do think that the baker has a right not to bake a cake for anyone that he doesn’t want to bake a cake for, but I don’t believe it is “speech” to have a bake a cake for someone whose beliefs you don’t agree with.

I also think that the baker is ridiculous for not wanting to bake the cake. Just bake the cake! Do something nice for fellow humans (and make some money while doing it).

And I think that the couple who sued the baker has exaggerated their feelings and their claims of being second class citizens, etc. Get over it!

Thank you Dave. Finally someone is making sense. The whole thing seems petty. What’s the thought? Gay people won’t get married because some baker refuses to make them a cake, so this will stop the spread of such Evil in society?

Christian baker, your side lost. These people will get married with or without your cake, and you can’t stop them.

And on the other side, you can’t get married without a cake? Everyone should get over themselves.

#20 Comment By galanx On September 23, 2017 @ 12:05 am

In the 17th, 18th and early 19th centuries Anglicans in England, Ireland and Wales discriminated against other types of Christians (not Presbyterians in Scotland, they were too strong.)Lutheran countries discriminated against Catholics and non-Lutheran Protestants; Catholic countries discriminated against Protestants of any kind. Enlightenment Deists like Jefferson wrote the Constitution to ensure freedom of religion. Conclusion: therefore, atheists are bad

#21 Comment By Stephen On September 23, 2017 @ 3:48 am

Siarlys Jenkins: “Our constitution didn’t ban penal laws… we have laws against murder, arson, rape, assault, battery.

OK, you clearly have no idea what the term “penal laws” means, least of all in the context I was using it in.

That term “penal laws” referred to the statutes the British enacted which PENALISED Roman Catholics and non-conformist religious denominations so as to keep them out of public office. I never claimed the US Constitution banned laws against murder,rape etc.

Siarlys Jenkins: “That was punishment for acts, not belief

In the first place, section 3 of the 14th Amendment is NOT limited to those who take up arms against the federal government. That was demonstrated in 1919 and again in 1920 when it was invoked to justify preventing Socialist Party of America member Victor Berger, who had been convicted under the Espionage Act for opposing the war in Europe, from taking his seat in the House of Representatives.

In other words, his opponents considered him disloyal; and then proceeded to equate that supposed disloyalty with engaging in rebellion and insurrection, By that yardstick anyone who opposed (say) the War in Iraq could equally face the same disqualification today.

Secondly, note that nowhere does section 3 of the Fourth Amendment require that there be a CONVICTION in a court of law as a condition before section 3 is invoked. For example, no court of law sentenced Berger to be penalised under section 3. It was the House of Representative which imposed that particular penalty.

In other words, section 3 is basically a bill of attainder. Those penalised under it do not NECESSARILY have to have been convicted in a court of law. A mere BELIEF in a person’s disloyalty suffices. At least that was what happened to Berger.

Siarlys Jenkins: “We never made a decision that individuals could take up arms against the elected government because they didn’t like the election results, and no civil disability would ever be imposed upon them.

Really? Isn’t “taking uo arms” what Washington, Madison, & Jefferson et al did in 1776 when they rebelled against their lawfully elected British government?

In fact I seem to recall something in a thingie called the Declaration of Independence which bears on that point: “ …whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

here we find a group of rebels claiming it is their inalienable right to rebel. If that argument could apply to the rebels of 1776 why not the rebels of 1861?

Siarlys Jenkins: “In fact, instances of invasion or rebellion are cause for temporary suspension of the writ of habeas corpus, and could have been cause for imprisonment or execution.

You mean like Lincoln did when he jailed all those Northern newspaper editors and Maryland legislators without trial?

Or FDR when he interned all those Japanese Americans during WW2?

Could you remind us what their crime was? The one which saw them shoved behind bars.

Siarlys Jenkins: “It should have been retained for life.

That sounds like the sort of policy a Saddam, Stalin, or Erdogan would institute. American should count its blessings that YOU don’t hold public office.

#22 Comment By david On September 23, 2017 @ 9:17 am

Okay you’re a Christian and you own a video/photography/bakery business. A gay couple approaches you to work at their wedding. You can as many have done or tried to do refuse to do so saying your Christian values beliefs preclude you from participating, that this is not a life or death medical issue, and while they have a legal right to get married their right does not impose an obligation on you to get involved. As the old saying goes their rights end where yours begins.

Well and good. Or as a Christian you can use the opportunity presented to do Acts 1:8 be HIS witnesses to this couple. You can do what Paul said in Second Timothy 4:2 and Preach The Word, politely respectfully, but do it viewing this as an opportunity to share the message of salvation with two people and their guests who might otherwise not hear it. That perhaps there was a reason why these two are in front of you.

What is God’s will for us here? This gets ignored all the time in discussions like this. It’s not what you and I want, it’s what God wants, what furthers His glory, His plans. Let’s think in those terms. And maybe after reading the Bible and praying we will reject their request. Or maybe we will use the opportunity to share the message with them.

(This does not apply to ministers/pastors/priests who under no circumstances can perform the ceremony or allow it to take place in the church or on church property.)

I’m open to suggestion here.

#23 Comment By Siarlys Jenkins On September 23, 2017 @ 11:25 am

What’s the thought? Gay people won’t get married because some baker refuses to make them a cake, so this will stop the spread of such Evil in society?

Sometimes, Potato, you get too immersed in legal technicalities to see the bigger picture our Bill of Rights was intended to protect FROM the blunt instrument of the law. No, the baker cannot prevent a same-sex couple from being lawfully married when the law offers them a civil marriage license. Nor can the baker veto any church or social hall willing to host the wedding ceremony, nor should he or she have such power. But, by the same token, the happy couple may not require the baker to be a PARTICIPANT in celebrating the happy event, which the baker considers anything but happy, even fraudulent, and possibly a peril to their immortal souls.

I don’t have to agree with the baker to say this. I have my doubts that God is really all that bent out of shape by the fact that the biochemistry of God’s creation is imprecise and some individuals feel that way. BUT, the point, constitutionally, is that in this sphere, individuals are free to act as they see fit. The baker doesn’t have to conform to the happy couple’s view of the world, the happy couple doesn’t have to conform to the baker’s view of the world, and the government has no jurisdiction to compel either.

I recognize that intruding this argument, almost undeniable in the pure spheres of religion and speech, into commerce, has its dangers. There is always someone ready to hijack the most careful prose, to declare “Yeah, so if the restaurant owner thinks black people are doomed by Scripture to be hewers of wood and drawers of water he doesn’t have to serve them either.”

There is a simple answer to this, firmly rooted in existing constitutional jurisprudence. COMMERCE is, in general, explicitly subject to government regulation, and a personal belief does not exempt anyone from compliance with a neutral law of general application. Occasionally, commercial services involve a craftperson in crafting an expressive message… and in that case, they have a constitutional right to bow out.

#24 Comment By Dylan P. Straub On September 23, 2017 @ 12:56 pm

Rod, do you recommend any particular book of Girard’s for the uninitiated to begin with?

[NFR: [11]is a good intro. — RD]

#25 Comment By John Dixon On September 23, 2017 @ 1:47 pm

“EXPOUNDING a written document. Controversies in the gray zones can be highly controversial, but nobody could construe the constitution to authorize a general tithe assessed by the federal government for the support of any or all churches.”

What part of “emanation from a penumbra” don’t you understand?

“Christians are far more interested in using their religious beliefs as a means to condemn and curtail the adoption of lifestyles they deem to be deviant than they are in their own personal salvation.”

Tell it to the nuns staffing the AIDS ward.

#26 Comment By Rob G On September 23, 2017 @ 4:36 pm

“I hope my grandkids or grandnephews or random young people consider me an out of touch fuddy duddy who doesn’t understand modern life by time I’m an old man.”

And I hope you’re that sanguine about things when they decide it’s time for your lethal injection.

[NFR: BAM! Yeah, I was thinking that he wouldn’t be saying that if his grandkids were neo-Nazis who thought old left-wing Pops didn’t understand a thing about modern life. — RD]

#27 Comment By Carl Kuss, L.C. On September 23, 2017 @ 6:23 pm

The anti-Christian left paints Christ/Christianity/Christian morality a Opression. But the pseudo-Christian Right plays into the hands of the same mechanism (masterfully described here by Girard) when it paints the same portrait approvingly, when it tells us that Christianity is Opression and we ought to love it. It behooves us therefore to make a new reflection on the sense of Christian morality and on the visage of Jesus Christ.

#28 Comment By Chris Mallory On September 23, 2017 @ 6:54 pm

We threw Free Speech, Free Association, and any hope of winning the culture war with the Civil Rights Act of 1964. You can have diversity, peace or freedom, pick two.

#29 Comment By CharleyCarp On September 23, 2017 @ 10:19 pm

I can see how one might draw a line between cake baking and wedding photography.* Or how the line might be drawn on either side of both these activities.

Our Supreme Court is something of a black box, but to outward appearances, it looks like there were not 4 votes (and maybe we should assume Justice Scalia was a yes) to consider overturning the photographer case, and there were only 4 votes to look at the bakery case after Justice Gorsuch was on board, and had time to fully review the case. My prediction — and no one should make predictions — is that Justice Kennedy writes either an opinion affirming, or a concurrence, that satisfies no one.

* Saying something is creative is not, by itself, a magical incantation. House painting is also creative, but we wouldn’t excuse a painter from working on a house owned by a black family just because we don’t want to impose forced expression. In my opinion, a wedding photographer is a lot more like a house painter than like a poet: although I suppose the facts of a particular case might push the needle a bit. What we’re going to get, though, is a baker selling a cake that is no different from any other cake they’d sell to any other marrying couple. If the baker wins this on compelled speech grounds, chaos will be sown in civil rights jurisprudence, quite likely to the detriment of disfavored minorities like, in some places, crankily orthodox Christians.

#30 Comment By CharleyCarp On September 23, 2017 @ 10:23 pm

(Did Justice Kennedy vote to take the baker case because knowing now who would appoint his successor, he wanted to be on the Court that decided the issue of services to same sex weddings? We won’t know for decades, if ever.)

#31 Comment By Siarlys Jenkins On September 23, 2017 @ 11:33 pm

We threw Free Speech, Free Association, and any hope of winning the culture war with the Civil Rights Act of 1964. You can have diversity, peace or freedom, pick two.

What a clever little cliche. Evidence? I’ve lived my life by all three without any contradictions. I’ve provided details framed in existing jurisprudence many times, but I could give another synopsis if you offer a substantive argument worthy of refutation.

What part of “emanation from a penumbra” don’t you understand?

I understand the concept quite well. Its a phrase of long-standing in constitutional jurisprudence that long antedates the Warren Court. “Freedom of Association” is an emanation from the penumbra. Ever find those specific words in the First Amendment?

OK, you clearly have no idea what the term “penal laws” means, least of all in the context I was using it in.

Sure I do. The meaning of the word “penal” doesn’t change. What is being penalized changes. Our constitution restrains the government from penalizing some things, not others. You argued, ‘If the government cannot penalize this, why can the government penalize that?’ I answered your question.

section 3 of the 14th Amendment is NOT limited to those who take up arms against the federal government. That was demonstrated in 1919 and again in 1920 when it was invoked to justify preventing Socialist Party of America member Victor Berger, who had been convicted under the Espionage Act for opposing the war in Europe, from taking his seat in the House of Representatives.

Could you cite specific reference to Section 3? Its not immediately available when rounding up the usual sources. It would be useful to see specific words. If true, it meant that a valid constitutional clause can sometimes be mis-used. That doesn’t mean that EVERY time it is invoked, it is invalid. If a police officer is prosecuted for killing an innocent black man without cause, does that mean a police officer should never kill a black man in the act of committing murder?

Section 3 is not a bill of attainder. A bill of attainder declares a person guilty of crime without trial and regardless of facts. I would argue that the espionage act could constitutionally be applied only to direct acts of espionage, not to political advocacy. But the confederate officers did not merely write editorials calling the American people stupid for electing Lincoln as president. They took up arms against the government of the United States. Section 3, if invoked against Berger, was misapplied, because Berger had not. (For what its worth, Berger also thought blacks were a lower form of life unworthy of equality).

Really? Isn’t “taking uo arms” what Washington, Madison, & Jefferson et al did in 1776 when they rebelled against their lawfully elected British government?

They won. If the confederacy had prevailed on the battlefield, it would have been in the same position. Wrongly perhaps, but they would have had a certain pragmatic impunity. And if Washington, Madison, and Jefferson et al. had lost, as Benjamin Franklin observed, they would have “all hung separately.” My southern unionist ancestors blamed the confederacy for overthrowing “the government established by our forefathers.” It meant something. You attempt rebellion, you fail, you pay a price. Nobody fights a war for the purpose of telling the losers “OK, now you set up the government any way you want it.” Confederate leaders were treated with extraordinary leniency, perhaps for good reason, but it was extraordinary, and in my view, a LITTLE too lenient.

You mean like Lincoln did when he jailed all those Northern newspaper editors and Maryland legislators without trial?

Or FDR when he interned all those Japanese Americans during WW2?

Maryland legislators — imminent military necessity. Only a few months. Newspaper editors… no, Lincoln did not. General Ambrose Burnside did. Lincoln counter-mandated the order. A lady visiting the White House urged him to suppress newspapers pushing blatantly pro-confederate positions. Lincoln lectured her on the importance of respecting the liberties of the people. (Which the confederacy did not, and was fighting to not do evermore.)

Interning the Japanese was done in the name of military necessity. It was wrong, because ethnic Japanese were overwhelmingly loyal to the United States. As the lady in the 1975 movie “Midway” said, “Why aren’t we treated like the German Americans and the Italian Americans?” So, how do you feel about expelling loyal American Muslims because some Muslims pulled a “Pearl Harbor” sort of surprise on the World Trade Center?

That sounds like the sort of policy a Saddam, Stalin, or Erdogan would institute.

Listen to yourself. Anyone who took up arms against any of the above would be summarily executed, not subjected to civil disabilities for a long and productive life. Robert E. Lee could, e.g.., still have served as president of Washington University without having his right to vote restored. He actually didn’t run for office , which was sound judgment on his part. General Wade Hampton was another story.

#32 Comment By Donald ( the left leaning one) On September 24, 2017 @ 12:51 pm

Okay, I have nothing substantive to add here, but this issue, (speaking generally without necessarily agreeing on the details ) is where I think you make a very strong case. And it needs to be heard, loudly, on the liberal side, because I think a lot of us would find your position at least partially persuasive.

So if you are pals with Brooks and Douthat, maybe urge them to write about this more often? I think Ross probably does already, but it needs to be said loudly and often. A great many NYT readers will react in typical kneejerk fashion (I don’t think liberals are nearly as rational as we fondly imagine ourselves to be), but some of us really are believers in the First Amendment and this issue should transcend the usual culture war divide with anyone who supports free speech and religious freedom.

#33 Comment By Mia On September 24, 2017 @ 1:03 pm

There’s a recent example in China as Xi continues to go retro and almost start a new wave of the Cultural Revolution on his own terms:

[12]

Between this and the proposed Sesame Credit Score, big trouble ahead.

[13]

#34 Comment By John Dixon On September 24, 2017 @ 4:14 pm

“‘Freedom of Association’ is an emanation from the penumbra. Ever find those specific words in the First Amendment?”

That the Supreme Court doesn’t heed any “bright lines” was established by Justice William O. Douglas, who claimed in GRISWOLD v. CONNECTICUT, that: “[P]enumbras, formed by emanations” are sufficient excuse for a disingenuous parsing of the First Amendment. He wrote: “The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice – whether public or private or parochial – is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”

It is stunningly obvious that the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”
…clearly protects the right of people to associate. How else might they assemble? Suggesting that freedom to associate is not directly described by the phrase “peaceably assemble” is ludicrous. Using that as the basis to assert emanations and penumbras as legally binding, is laughable.

Justice Douglas had to reverse the logic of the Founders by pretending that what is not found in the Constitution by a spell-check is not protected. The Constitution was expressly designed to LIMIT the power of government – so what is not found there is automatically protected from meddling by any branch of government. Douglas also needed to ignore the existence of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Compounding the hypocrisy of his elevation of semantics over logic, Douglas wrote “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” – while proceeding to to just that.

[14]

“Light, seeking light, doth light of light beguile.”

#35 Comment By Ben H On September 25, 2017 @ 12:36 pm

If a videographer can be forced to work at a gay wedding he can be forced to shoot a porno movie. If conscience can play no role whatsoever in choosing business it can’t play a role period.

Of course we’re beyond the point of actual rules that presuppose an objective standard and well into the world where you simply have to comply with whatever liberalism demands that day.

#36 Comment By Siarlys Jenkins On September 25, 2017 @ 3:43 pm

…clearly protects the right of people to associate. How else might they assemble? Suggesting that freedom to associate is not directly described by the phrase “peaceably assemble” is ludicrous. Using that as the basis to assert emanations and penumbras as legally binding, is laughable.

My dear John Dixon, you have it backwards. But you would, since you are desperately trying to justify your own pet “rights” while denying that the process which gives jurisprudential substance to those rights is legitimate.

“Peaceably to assemble” does not, ipso facto, mean “right to form an organization with by-laws and refuse to give a membership list to the state government.” It may merely mean, right to turn out in the public square when something emergent is going on.

The full concept and right to freedom of association emerges from components and derivative meaning of the right peaceably to assemble, the right to freedom of speech, some implications of the right to free exercise of religion (which is generally on the basis of association), as well as retention of certain rights by the people (not necessarily by the states).

Further, you mistake legislation on social conditions, with restraint on the government’s power to legislate about social conditions.

#37 Comment By John Spragge On September 26, 2017 @ 4:32 am

Three things:

1) You can’t generalize the responses of a self-selected group to the corresponding population. Statistics simply don’t work that way. If the “20% approve of violence” claim comes from a sample of people who chose to participate in a survey on the subject, it only means 20% of the participants in that particular panel condoned violence against offensive speakers. It means nothing else because we can’t know whether or not some or all of the people in the 20% made a special effort to participate in the panels because they wanted to express their support for violence to suppress objectionable speech.

2) The counterargument to the expressive speech versus religious freedom argument involves commercial contract: in offering a service to the public, you make an explicit promise to provide that service. If you open a cheese shop, you should have cheese on hand to sell. If you hang out a shingle as a wedding photographer, couples should have some assurance you will photograph their wedding, rather than regale them with reasons to not do so.

3) To quote from the article:

“Patient autonomy” and nondiscrimination are the principles that trump all conscience considerations, and physicians are expected to fall in line.

“If they make compliance a matter of licensure, there will be nowhere to hide,” said this physician.

If “patient autonomy” means what the plain words suggest, that I should have the ability, within the law, to make my own decisions about my health and treatment, then reconciling it with the freedom of doctors or other professionals not to outrage their consciences poses no huge problem: at the minimum, doctors who intend to invoke a right to refuse a legal treatment on grounds of conscience have at least a responsibility to disclose their stance as far in advance as practical, and not obstruct patients who choose to make other arrangements. Ideally, professionals would refer patients to providers willing to render services they will not.

#38 Comment By bkh On September 26, 2017 @ 11:16 am

@Carl Kuss, L.C. said: “It behooves us therefore to make a new reflection on the sense of Christian morality and on the visage of Jesus Christ.”

Change to what? Jesus and the disciples healed the sick and raised the dead yet were killed for their witness save for John. The Pentecostals/Charismatics are about the only groups still accepting the fact open signs and wonders are possible. Jesus even goes so far as to talk about the rich man and Lazarus and mentions even if the rich man was to come back from the dead, his relatives would still not believe. What do you want these rebellious people to see?

What we have today is a shell of what Christ offers. It has been gutted to appease a listless gaggle of congregants to maintain mortgage payments. We complain about TV evangelism, yet refuse to accept the fact Christ was far more dynamic in His miracles and rebukes and admonishments. He knew their hearts and proclaimed the world has already been condemned. We try to argue, debate, and vote on things in hopes we don’t offend anyone. God forbid the adulterer not got to our church. Let’s just make jokes of the gluttony running rampant in our churches. We hold a Bible in one hand and a partially eaten chicken leg in the other. We should be throwing bread to the masses. If America or Europe doesn’t listen, throw it elsewhere. We should not be placing any hope whatsoever in politics or the SCOTUS or the masses that are quickly being turned over to reprobate minds. We should be killed for our witness, not our voting records. We should show we are more willing to go to the furnace and than bowing to an idol or eat “food prepared for idols.” But we get bent all out of shape over things that one day will be burned up and be no more.

#39 Comment By John Dixon On September 27, 2017 @ 1:56 pm

The will bends the judgement in the direction it desires. (Cajetan)

Funny how a guy who derides Transubstantiation has no problem swallowing “penumbra from emanation”. Do you enjoy indulging in wilful self-deception about the nature of current jurisprudence? What precisely do you think is meant by “living document” and “read in”? The Constitution has been a blank canvas for some time now. If you think liquid modernity and merited impossibility don’t apply, pay attention. Any good communist will tell you that the law means what the Party says it means. To see Griswold, Roe, and Obergefell as anything other than a rat king is to enjoy drinking from an oxbow lake.