Thursday, April 09, 2015

The romance of orthodoxy is mannerism

Arguments over "religious liberty" are a waste of time. Liberals are as confused as conservatives.

Holbo quotes Dreher
On the conservative side, said Kingsfield [Dreher’s pseudonymous law prof. correspondent], 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.”

Kingsfield said that the core of the controversy, both legally and culturally, is the Supreme Court’s majority opinion in Planned Parenthood vs. Casey (1992), specifically the (in)famous line, authored by Justice Kennedy, that at the core of liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As many have pointed out — and as Macintyre well understood — this “sweet mystery of life” principle (as Justice Scalia scornfully characterized it) kicks the supporting struts out from under the rule of law, and makes it impossible to resolve rival moral visions except by imposition of power.

“Autonomous self-definition is at the root of all this,” Prof. Kingsfield said. We are now at the point, he said, at which it is legitimate to ask if sexual autonomy is more important than the First Amendment.
For liberals like myself, this is a topsy-turvy view. I think of religious liberty as an aspect of individual liberty. I’m not sure I endorse Kennedy’s exact phraseology, but it’s close enough for government work. Dreher and Kingsfield take almost the opposite view. For them religious liberty functions as a check or curb on individual liberty. Their concern is to maintain a safe space for orthodoxy. This is quite explicit later in the post.
The professor brought up the book The Nurture Assumption, a book that explains how culture is transmitted to kids. 
“Basically, it says that culture comes through your peer group,” he said. “The most important thing is to make sure your kids are part of a peer group where their peers believe the same things. Forming a peer group is hard when it’s difficult to network and find other parents who believe what you do.”
Individual liberty and the state: Wickard v. Filburn is foundational to modern liberalism.
repeats of repeats. The same points in different contexts.
And again, as to the New Deal, both modern liberals and conservatives ignore that the biggest result was the economic unification of the country. Most modern conservatives are in favor of US economic dominance, and without Wickard v. Filburn and other decisions the US would not have become what it is. Similarly the civil rights cases had as much to do with economic efficiency, and liberal self-love, as concern. Read Derrick Bell’s dissent in What Brown v. Board of Education Should Have Said. Capitalism requires the collapse of public and private; private life has shrunk and continues to.
As to liberal pretensions: Wickard v. Filburn helped secure US domination of the post-war world. Democracy might have been stronger if the decision had gone the other way. And then there's Derrick Bell on Brown. [not the same link as above]
The market trumps community and individualism, collective and individual conscience, always.

The romance of orthodoxy is mannerism. Rawlsian scholasticism is mannerism, not modernism.

"Mr. Chesterton’s brain swarms with ideas; I see no evidence that it thinks."

etc. etc.  And I'm still getting hits from the LRB, a fair number from the Oxford Union. I'll be in London in a month. You should invite me.
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see also the ACLU's contradictions.
When Christian educator Bill Jack ordered a cake last year from Azucar, a Denver bakery, he had a special decoration request for owner Marjorie Silva. He wanted the cake to say "God Hates Gays" with a drawing to match. Silva refused, and now she's facing a half-baked complaint from Jack alleging he was the victim of religious discrimination.

Jack and others are touting this as equivalent to what happened at Masterpiece Cakeshop in 2012, and they are pointing to both cases as reasons to support laws allowing businesses to discriminate against gay couples. As you have likely heard by now, Masterpiece owner Jack Phillips turned away gay couple Charlie Craig and David Mullins from shopping for wedding cakes, citing his faith as the reason. The couple filed a discrimination complaint and the ACLU stepped in to represent them. An administrative judge and then the Colorado Civil Rights Commission ruled that yes, they had suffered illegal discrimination. Masterpiece and Phillips are now appealing that decision.
Also Volokh
But while Jack has succeeded in getting publicity for his cause, he doesn’t have a legal leg to stand on. Colorado law bans discrimination by a wide range of businesses, but only when the discrimination is based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” This means that a store may not specifically refuse to sell cakes to gays, or sell them to (say) Baptists. It may well mean that it may not specifically refuse to sell cakes for use in same-sex marriages, or in Baptist events. It may even mean that it may not specifically refuse to inscribe messages that identify buyers as gay (e.g., “John and Bill’s marriage”), or as Baptist (e.g., “Baptist Church Picnic”).

But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he’s a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it’s discriminating based on the ideology of the message, rather than the religiosity of the buyer.

Here, there’s no reason to think that Azucar Bakery discriminated against Jack because of his religion, or even because of the religiosity of his message (though I don’t think discrimination based on religiosity of message is barred by the law in any event). I suspect that if the message had read “Gay is unnatural” or “Gay is disgusting” — with no reference to religion — Azucar would have refused to write that message, too. To win on a religious discrimination claim, Jack would have to prove that he would have been served based on his religion, and he can’t do that if the Azucar people credibly testify that they would have rejected such an anti-gay message regardless of whether or not it was religious. (Nor can Jack argue that this was “creed” discrimination; in such statutes, “creed” simply means “religion.”)

I do think there are serious Free Speech Clause problems with some application of public accommodation discrimination laws, such as to wedding photographers; but that is a separate matter. Here, the law simply doesn’t even purport to prohibit refusals to write messages on cakes based on the messages’ ideology.
Volokh links to Volokh
I’m pleased to report that I filed a friend-of-the-court brief, on behalf of the Cato Institute, Dale Carpenter, and myself, arguing that wedding photographers (and other speakers) have a First Amendment right to choose what expression they create, including by choosing not to photograph same-sex commitment ceremonies.
According to the logics above, religion is distinct from ideology and people are separable from their beliefs. The latter is easier in some cases than others: are the Jews a people?"

"Affirmative action" was and is problematic. The simplest way to apply it would be to base it on economic status, but that would never pass. Think of what would have happened if Reconstruction meant 40 acres and a mule for freedmen and for poor white trash.

In the US, you can be fired for membership in a political party.

Pedantry is lousy model for politics and an even worse model for politics in a democracy.
more above.
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And I'd forgotten about Kelo

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