Thursday, April 23, 2015

The World Upside Down

Can we enjoy liberty, if we deny liberty to others?

Recent events have provoked me to continue exploring the essentials of liberty. Today, I am giving thought to the connection between liberty and tolerance.


George Orwell suggested a rather contrarian and discomfiting view on liberty. He tied the idea of liberty to the right to speak thoughts considered unthinkable by others. He wrote,
But at least let us have no more nonsense about defending liberty against Fascism. If liberty means anything at all it means the right to tell people what they do not want to hear. The common people still vaguely subscribe to that doctrine and act on it. In our country — it is not the same in all countries: it was not so in republican France, and it is not so in the USA today — it is the liberals who fear liberty and the intellectuals who want to do dirt on the intellect: it is to draw attention to that fact that I have written this preface.
A recent incident at Valdosta State University has provoked me to give some further thought to the meaning of liberty, and its future in our society.

The "Incident at Valdosta" involved the brief detention by police of a veteran that had rescued a flag from being stomped on by a student group protesting on campus. The actions of the students involved in the protest, shown in this picture, are reprehensible to me.

I grew up in eras of conflict, our involvement in Vietnam began in my toddler years, Johnson's surge occurred before my young eyes, and at a time when I was, precociously perhaps, becoming aware of the political dimensions of life. My teen years witnessed the highly contentious Watergate years and their aftermath.

But I witnessed all these things through the lens of life in a military family. My siblings and I were Marine Corps brats. Our dad fought in World War II, in the South Pacific, and in the Korean Conflict, before most of us were born (he came home from Korea to twin babies). During the height of anti-war protests, we lived in the Washington, DC suburbs, and attended Catholic grade schools and public high schools, including while our dad served in Vietnam, and then served as Staff Judge Advocate of the Third Marine Division on Okinawa. Though it is over forty years ago, I still remember one older brother, along with friends, defending the flag at Thomas Jefferson High School in Alexandria, Virginia, when a group of anti-war students were threatening it.



In another era, treating the American flag contemptuously on a college campus would have resulted in disciplinary action. For good or for ill, we treated the flag like a talisman, a substitute for the Nation itself. Conduct deemed disrespectful of the flag was intolerable.

Remember, it was just seventy ago when students in American public schools were suspended from school simply for refusing to salute the flag during morning patriotic exercises. In fact, the dispute over compelling participation in flag salute exercises took two trips to the Supreme Court before the right simply to refrain from saluting the flag came to enjoy dimensions of constitutional protection.

In the decades that followed, a tidal shift has adjusted that reality.

In the oldest Supreme Court case involving an allegation of disrepectful treatment of the US flag, two brewers, the makers of "Stars and Stripes" beer, were prosecuted and convicted under a Nebraska law prohibiting the desecration of the flag. In Halter v. Nebraska, the Supreme Court held that Nebraska possessed legislative power to promulgate its flag desecration law under its general police power to safeguard public safety and welfare.

A quarter century later, in a case not involving the US flag, the Supreme Court held that the application of a California statute prohibiting displays of a "red flag" to indicate opposition to government violated the First Amendment rights of those that displayed such flags. Stromberg afforded the Court its first opportunity to provide First Amendment protection to so-called "symbolic speech." The Justices deciding Stromberg v. California were divided over the outcome, in part because, in the view of the dissenting justices, the kind of symbolic expression at stake was in pursuit of the destruction of liberty through anarchical revolution. In defense of the Court's conclusion that the flag display was constitutionally protected, the Court stated, "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment."

Nearly four decades after Stromberg, the Supreme Court took up the issue of verbally disparaging the United States flag. In Street v. New York, Sidney Street's disparagement of the flag consisted of his spontaneous and immediate reaction to hearing word, by television news, of the assassination of civil rights activist James Meredith. Street had a United States flag of his own, that he displayed occasionally. He took it from a drawer in his home where he kept it stored. Street went out onto the public sidewalk and disparaged the flag verbally, saying that, if the government could allow the assassination of the civil rights leader, then "we don't need no damn flag!" Street set the flag, his own property, on fire.

The justices, as is often the case, split in their views of how to handle Street's appeal of his conviction. Rather than addressing the constitutional dimensions -- if any -- of the act of burning a flag as a form of expression, the Court couched its decision overturning Street's conviction as one based on the protected status of his "don't need no damn flag" statement. Based on the record, though, the majority of the justices came to the conclusion that it was not just the act of burning the flag that resulted in Street's conviction, but also likely that his remarks disparaging the flag formed a basis for the prosecution. For that reason, the Court reversed Street's conviction.

Three years later, in a case resulting from the attachment of a flag patch to the seat of a pair of pants, the Supreme Court struck down a Massachusetts flag contempt statute. That case, Goguen v. Smith, arose when a police officer noticed a teen, Valarie Goguen, wearing a pair of jeans that had a flag patch sewn on the rear pocket. The charging officer had alleged, and the trial court found, that Goguen treated the flag contemptuously by sewing to the seat of his pants. A Massachusetts court convicted Goguen for this violation of Massachusetts' flag misuse statute. The trial court sentenced Goguen to a six month jail term.

After Goguen's conviction, a federal trial court ruled that Goguen was wrongfully detained because his conviction arose from application of an unconstitutional statute. The Supreme Court agreed. The Court overturned the teen's conviction based on its conclusion that Massachusetts flag statute was unconstitutionally vague.

Two years later, the Supreme Court overturned yet another conviction arising out of anti-war protests. In Spence v. Washington, Spence, a college student, displayed a US flag out his window. On the flag, he had placed adhesive tape in the shape of a peace sign. Spence stated he did so to enhance the connection between the flag and peace. The recent Kent State massacre, and military use of force in Southeast Asia provoked Spence's acts. A Washington court convicted Spence for placing a mark or sign on the flag.

The Supreme Court held that Washington could not convict a person for attaching removable tape in the form of a peace sign to a flag. The Court could not find under the First Amendment a sufficiently important governmental interest to justify regulating this form of symbolic speech. Spence marked the Court's first clear statement that protests involving use of the US flag were forms of expression protected by the First Amendment.

Today, as the Incident at Valdosta shows, one who defends the flag from desecration is made out to be the outlaw, and those who trammel it enjoy constitutional status as expressive savants.

As I have been penning this post, I chatted a bit with my mom about it. My mom recently joined the distinguished class of American nonagenarians. As I shared portions of an early draft, I could tell she was being provoked by the facts. Clearly, for Americans like her, who survived a Great Depression, a World War, two Southeast Asian military conflicts, and all the other upheavals one of her years had witnessed, it was a source of mental pain even to hear of acts of flag desecration.

I knew as I read the following paragraph to my mom, she understood the constitutional significance of it, but it did not assuage the hurt she felt, as one of those who love this Nation feels, to know that we have come to the place in time and discourse in which it is an exercise of liberty to profane its emblems.

To be clear, I celebrate the liberty made of such stern stuff that it rejects official attacks on the expressive act of desecrating the flag. I do so yet still find the behavior of defiling the flag contemptible. I do so while fully sympathizing with the veteran, Michelle Manhart, whose systemic shock at seeing the open revilement of our national emblem led her to rush in and rescue the flag when none other would do so. But Ms. Manhart failed to measure the temper of the times, or to gauge the nature of the constitutional dimensions of the right to dissent.

Principally, the right to freedom of speech and the right to freedom of the press are rights of dissent. There is little or no need for a constitutional shield for speech and writing that enjoys broad acceptance and approval. When all speak well of your words and thoughts, little danger presents itself to your right to speak and to think. It is in the moment of dissent where the value of the rights are tested. It is against the voice of dissent that the moral fiber of liberty is measured. 

Harry Truman understood the nexus between dissent and liberty. He observed,
Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.
The Incident at Valdosta State is not, yet, ordinary.

The Valdosta students were, it seems, protesting against the heritage of slavery that made them descendants of the oppressed. For those students, the American Flag embodied that unprincipled oppression of the rights of their ancestors. Those that valued the symbolism of the flag were, accordingly, descendants of the oppressors. So, as the protesters later explained, stomping the flag was stomping the oppressor. This thinking of these students, however, was not so clearly communicated by their actions as to be obvious to the veteran. In fact, when she learned the reason for their actions, she was sympathetic, although we can all regret her suggestion that next time they wished to oppose their oppressors they should find a white man to stomp on, rather than the flag.

But the opacity of the students’ message is important here.

I hope that we all agree that spoken words expressing views on government policy enjoy robust protection from governmental suppression by the Constitution. Here, though, there is a remove, a space, between such direct exercises of the fundamental rights of free speech as are obviously protected by the Constitution and this instance of flag trampling by students. That distance reflects the choice of the Valdosta students to propagate their message without words, by acts of expressive conduct. While some might choke on the reality, such expressive conduct has been found by the Supreme Court to enjoy the same kind of constitutional protection … so long as the conduct is intended to express a message and so long as the conduct is reasonably calculated to communicate the intended message.

And that gets us to the heart of the matter at Valdosta. Did these students intend, by walking on a flag, stomping it, to communicate a message? Were their actions reasonably calculated to communicate the message. Based on their explanations, it does seem likely that they intended to communicate a message critical of America's historical role in the enslavement of Africans. Based on Michelle Manhart's reaction afterward, when she learned the motivation behind the protest, I suppose it is an open question whether the flag stomping was reasonably calculated to communicate the students' message.

We have trod this path before.

It is only a couple decades since the Supreme Court struck down the application of a Texas statute, and then a federal one, barring destruction of a United States flag. In those two cases, protesters expressed their views by burning the flag, in violation of law directly prohibiting one from doing so.

Yet, as the Supreme Court has construed the First Amendment, it may not be made a crime to express disrespect toward, or to disdain, the US flag by acts of desecration. In two separate decisions, Texas v. Johnson (Texas statute prohibiting flag burning) and United States v. Eichmann (federal statute prohibiting flag burning), the Court -- while recognizing that such acts are profoundly offensive to many -- concluded that the expressive elements often present in acts of protest that destroy our National standard warranted protection from GOVERNMENTAL interference in the form of a flag burning prohibition.

Justice Brennan, concluding his opinion for the Court in Eichmann, expressed the important notions tied up in the controversies that arise when flag desecration is the voice by which protesters speak:
We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets [sheltered from prosecution in Terminiello v. Chicago], vulgar repudiations of the draft, [sheltered from prosecution in Cohen v. California], and scurrilous caricatures, [sheltered from civil liability in Hustler Magazine, Inc. v. Falwell]. If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. [] Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.
In the flag burning cases, the Supreme Court revisited the topic of symbolic speech it had addressed on other occasions. Of particular interest here, one of those earlier cases involved burning draft cards as a way of expressing opposition to America's involvement in the Vietnam Conflict. In the tumultuous 1960s, some young men opposed to America’s involvement in Vietnam, and others more generally opposed to war, expressed their opposition to the "draft," or Selective Service, by tearing up, burning, or otherwise defacing the draft card issued to them when they registered with the Selective Service.

By happenstance, the obligation to register with the Selective Service was briefly suspended during the period when I would have been expected to do so. I was not required to register, and I never did. Others in my family, older than me, did register. I remember the reaction in our house following one of the annual draft lotteries, I think that had to do with the order of call that affected my oldest brother, Paul. I also remember my mother showing me the draft card that had been assigned to her father, Thomas Quinn. His card, issued when he was, I think, about fifty years old, reflected the continuation of the Selective Service with the advent of World War II. No one of my personal acquaintance burned their draft cards, or refused to report for classification by the Selective Service.

Still, the war in Vietnam did not enjoy the kind of broad public support that our declarations of war against Japan and Germany did, perhaps for the obvious reason that the Vietnam conflict was so localized and distant while World War II was, in fact, a global conflagration. Other reasons undoubtedly contributed. The war in Vietnam was part of the Cold War. In many respects, we fought a war against Communism by proxy. Such a war -- against Communism -- could hardly be popular among young men when there was a certain level of appeal toward communist ideology already holding sway in popular culture and on American campuses. But whatever the reason – moral, political, well-considered, cowardice – a vocal group of young men said "no" to involuntary military service by the very public act of destroying a federally issued Selective Service card that law required they keep on the persons, and that a then-recent amendment to law prohibited them from defacing or destroying.

As a way of saying, "I disapprove of American involvement in Vietnam and I refuse to serve if called
to do so," burning your draft card is quite an oblique message. Sure, in the moment of your act, those around you will understand what you are meaning to say. Out of context, however, a recording of the moment, showing a young man burning a credit card-sized paper likely has little communicative value without further elucidation. Take the accompanying photograph as an example. When you look at the picture I included here, you cannot know for sure whether the burning of the draft card is meant to express opposition to the Vietnam War, or the Korean Conflict, or World War II (although the desert boot is a powerful hint), or more generally to involuntary servitude in the military.

Burning a draft card is more than a way of expressing your views. It is also a way of getting prosecuted for the destruction of your draft card, an act that violates federal law, particularly Title 50 U.S.C. § 462(b)(3). In fact, as a young man in Boston, David O'Brien, found out, burning a draft card can get you free room and board in a federal correctional facility. O'Brien burned his draft card on the courthouse's steps of the federal court in Boston, along with three other young men. The federal government prosecuted O'Brien.

In an effort to avoid conviction, O'Brien argued that his defiant act of burning the draft card constituted a message of opposition to the Vietnam War, and that the government's prosecution of him for his expressive actions violated the First Amendment. The Supreme Court sustained O'Brien's conviction. Nonetheless, the Court used the case as an opportunity to explain circumstances in which symbolic acts rose to the level of expression, and in which the First Amendment would prevent government interference with such expression.

What was the upshot of O'Brien's defiant act of burning his draft card? O'Brien served a term in prison rather than a tour in Vietnam for his symbolic speech. For the rest of us, the Court articulated a standard for the decision of future cases involving symbolic expression.

This Incident at Valdosta is different from O'Brien and from Texas and Eichmann, and it is different from the flag cases discussed above, in which individuals were prosecuted for burning the flag, for defacing it with removable tape, for defaming it by displaying it on the buttocks of their jeans, and the like. Here, the government did not intervene to protect the flag from those that desecrated it. Instead, a veteran, stunned and offended (as the Supreme Court recognized would be the likely outcome of such acts), stepped in to protect the flag from further desecration. It was at that point that the government intervened, briefly detaining her.

Viewed coldly -- removing the particular article, the flag, and substituting some other item, a used textbook, for example -- it is obvious that this veteran interfered with the private ownership of property. That is called a trespass. She may have had offensive contact with those that desecrated the flag. That is called battery. Fortunately for her, the students and the police decided not to press charges.

Isn't it a strange world? Campus police detain a military veteran for stopping acts of desecration of the American flag. Those same campus police protected those responsible for that desecration. Ultimately, a show of government "mercy" was necessary to protect from criminal prosecution one who have bled, if need had required it, the reds of that very flag in defense of the Nation it represents.

Still, it occurs to me that we ought to take our lessons where we find them. This incident offers us lessons in liberty, in tolerance, and in self-control.

As to the first lesson, the Incident at Valdosta proves that the right to OFFEND others with our speech continues to enjoy robust protection, at least depending on the message, its speakers, and the identity of those offenders. The Supreme Court has explained this concept in many cases. It struck down a DC Code section that protected foreign embassies from speech subjecting them to "public disrepute" in a case called Boos v. Barry (some protesters in Boos wanted to picket at the Soviet embassy with signs reading "Free Sakharov" and "Solidarity;" others wanted to picket the Nicaraguan embassy with signs reading, "Stop the Killing"). In another case, the Court insulated Hustler Magazine from damages after the magazine published a parody advertisement suggesting that Jerry Falwell's virginity was surrendered to his mother in a boozy session in the family's outhouse in a case called Hustler Magazine v. Falwell.

As we have learned subsequently, the student protest at Valdosta was "against slavery" and the flag desecration was undertaken to show that these students (presumably the descendants of slaves, but certainly not, themselves, slaves) were throwing off the yoke of oppression. That's a fine message, although not an entirely obvious one. Absent clarification, simply walking on the flag fails to communicate that one's disdain is directed particularly at the Peculiar Institution of Slavery.

Yet, even as ugly as their actions were, there is something in our legal reaction to it that is worth celebrating. We live in a nation, one of a select few, in which one's outrage -- whatever the cause -- can be expressed by burning, reviling, spitting on, or stomping the very symbol of our Union without legal ramification. Ken Kesey, author of One Flew Over the Cuckoo's Nest, put it, somewhat psychedelically but acutely, this way:  "Nowhere else in history has there ever been a flag that stands for the right to burn itself. This is the fractal of our flag. It stands for the right to destroy itself."

Imagine those same students, at the Hitler Institute for National Socialism, in, say, 1939, stomping on the Standard of the Third Reich. Do you, in your wildest imagination, see Hitler and his minions tolerating such disrespect for the Fatherland? Do you envisage the Waffen-SS detaining stout hearted veterans of the Wehrmacht for disrupting their disrespectful actions against the Nazi flag?

No, no, you don't.

Of course, you don’t. The demise of the German Republic and the appointment of Hitler as Fuehrer was accompanied by orders eliminating freedom of speech and freedom of the press. So, no, the socialists in Germany would not have tolerated disrespect for their standard disguised as expression. In fact, if you know history at all, what you picture, when you contemplate the response of the Third Reich’s government to such a protest, is internment in a concentration camp, or summary execution.

But where statist Socialists, whether National Socialists and Marxist Socialists, place great patriotic stock in their symbols, we place great stock in our liberties, even when that liberty is a device for disrespecting our very Nation.

America has been, over many generations, a place that nurtured the seeds of, and carefully Husbanded the tree of liberty. Americans have been, over many generations, a people who have tended, in darkest hours, the failing embers of liberty against a rising storm if statist terrors of Marxist and Nationalist Socialism. Not that we have always held faith with that liberty, or carefully tended those dying embers, but it has remained our national aspiration at least in our most noble moments.

Abraham Lincoln, the Great Emancipator, in his 1862 State of the Union message to Congress, said that FREEDOM is the "last best hope of earth." He wrote, "In giving freedom to the slave, we assure freedom to the free -- honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best hope of earth." So, to protect our own liberties, we have to value everyone’s liberty.

In the Valdosta flag imbroglio, we encounter two different forces. One exercises LIBERTY of expression by defiling a symbol of our national commitment to that LIBERTY. The other exercises JUDGMENT to stop an attack on that symbol of LIBERTY. Under our constitutional rubric, however, it is the exercise of expression that enjoys protection from governmental suppression, while the private act of the veteran suffers the characterization of criminality.

Michelle Manhart, who served both at home as a training instructor, and overseas, committed her time, her talents, her relationships, her future, her hopes and her dreams to a period of service. True -- as my father's own story taught us -- she may have made the choice to serve as a path to an improved future. Yet, she chose to surrender present comfort, present opportunity, present LIBERTY, in the interest of our Nation's claim that a standing force of arms is needed to protect our Nation from terrorist (and other) threats. When you surrender a thing of value, not because you do not value it, but because you believe its current surrender will insure its perpetuity, you raise the value of that thing, perhaps immeasurably but almost certainly.

I appreciate that the students and the police refused to press charges against the aptly named Manhart. The students’ poor judgment in choosing such an oblique manner of expressing their views, in fact, is fully balanced by their recognition of how hurtful the impact of their chosen expression was to the veteran.

That brings me to lesson two, the connection between liberty and tolerance. Tolerance is not the bastard son of liberty, to be hid away from public knowledge and view. Tolerance is nothing more than the enjoyment by another of the liberty you prize for yourself.

But tolerance seems to be in short supply any more. Here are some evidences of our "tolerance poverty:"

In Colorado, a baker that refused to provide services for a same sex wedding was found to have engaged in illegal discrimination.

In New Mexico, a photographer that refused to provide photography services for a "commitment ceremony" between two lesbians was found to have engaged in illegal discrimination.

In Washington, a florist that refused to provide services for a same sex wedding is being sued ... for discrimination.

In Idaho, until public pressure backed the city down, a couple operating a private wedding chapel was threatened with daily fines for every day they refused to do so.

In Indiana, perhaps most notoriously, a pizza shop shut its doors after repeated death threats and thousands of nasty tweets and Yelp reviews. That incident occurred during the recent public spectacle over the adoption of a religious freedom statute by the State of Indiana. There, the owner of Memories Pizzeria had answered a hypothetical question about her willingness to cater a same sex wedding and she replied that, while she welcomed gays and lesbians in her restaurant, she did not agree with same sex marriage based in her religious beliefs and would decline such a request. (I'm still waiting to meet that mystical gay couple, the ones that would even consider an appropriate choice in catered wedding reception choices; maybe they will be featured in some upcoming episode of Queer Menu for the Straight Venue.)

So, now, for that second lesson, let's draw together burning draft cards, flaming flags, and same sex weddings.

When the dust settles, there is a reasonable likelihood that same sex marriage will be legally recognized in the United States. That result may obtain as quickly as the Supreme Court's final decisions of the present Term, sometime at the end of June, 2015. There, the Court is facing arguments that denial of the right of same sex couples to legally marry under State laws violates the Equal Protection Clause of the Constitution.

Set aside the profound unlikelihood that those who drafted the Fourteenth Amendment contemplated that the Equal Protection Clause would require States either to exit the marrying business or to legalize same sex marriage. The Supreme Court's patchwork approach to constitutional construction positions no one to confidently anticipate that the intention of those that wrote, and those that ratified, a constitutional amendment is of any particular importance in deciding the meaning of their words. The Constitution is, in the hands of activist judges, rather like the casings made from sheep and pig intestines: great for stuffing full with things that were never meant to be in them.

Even if the Supreme Court overturns the lower court cases imposing same sex marriage on States that had enacted State laws or State constitutional provisions defining marriage as limited to opposite sex couples, the legal recognition of same sex marriage is a cause celeb. For that reason, even if the twenty-six or so States that have had judicial oligarchs thwart their popular sovereignty return to the prior status of opposite sex marriages only, the culture war has powerfully alliances afoot to portray those that oppose legal recognition of same sex marriage as despicable, as the Jim Crows of the 21st Century.

In either event, there will continue to be a voluble melange on marriage, on homosexuality, and on discrimination. The temptation -- on all sides -- will be to portray all opponents as evil, as enemies, as loathesome. The rhetorician skilled, by nature or practice, in this art, will follow a program that is, actually well-worn. William Brennan, a professor in the St. Louis University School of Social Work, has written extensively and in depth on the trail that leads from verbal bullying of the sort directed by Bill Maher to evangelical Christians in America today all the way down to the concentration camps of the Third Reich. Brennan's well-documented works show that the Nazis did not start with mass exterminations of Jews.  A century of anti-Semitic propaganda preceded Krystallnacht. The effectiveness of such dehumanizing propaganda is testified to by six million dead Jews, just as equally as it is by one million dead Armenians, and as it was, at one time, by the ugly remark that the only good Indian is a dead one.

So, as the debate heats up, and as the language heats up, there is a real danger to our liberty. "Liberty for me, subjugation for you," is not liberty, it is tyranny. In these times, no matter whether you support marriage equality or support traditional marriage, you better be aware how you use your liberty, how you tend it and propagate it.

If you attack the liberties of others, you endanger your own.  Let me show how that works. In 1984, I began my legal career as a first year law student. I attended St. Louis University School of Law. St. Louis University is the oldest university west of the Mississippi, a Jesuit institution. Despite its titular catholicity, the law school was not particularly welcoming to my pro-life views.

There was a student bulletin board in the lobby outside of the break room on the law school's ground floor. I pinned a pro-life poster to the board. It got torn down. I pinned another poster. It got torn down. After the third poster was torn down, I used a bit of Elmer's School Glue to attach my poster to one promoting Planned Parenthood.

Yes, unsurprisingly, both were torn down.

That's the way of it for social Nazis. The message -- respect the lives of children developing in the womb -- was too offensive to be tolerated ... even if destroying the message destroyed one favored by the speech Nazis.

Tolerance for opinions that offend you is a necessary and integral aspect of the liberty you desire for yourself. In this day, as lawsuits and human rights commission actions are being brought against those whose religious scruples prevent them from participating in the celebration of a same sex marriage, such toleration is being sacrificed on the altar of public confrontation over the legality of same sex marriage.

And that is an oddity. Take court decisions out of the equation and no State would current have or recognize same sex marriage. But now that anti-democratic forces have co-opted self-governance with judicial tyranny, the popular media has leaped in with ready comparisons of tolerant business owners -- willing to serve persons whose lifestyle choices are deeply offensive, just unwilling to join in those choices -- as the Jim Crow Democrats of the late 19th Century.

It is, more and more, a strange world indeed. American flag disrespect enjoys protected by police as an honored exercise of freedom of speech. Interventions to protect American flags from desecration falls to the level of criminal thuggery. Same sex marriage, unimaginable at the Nation's founding, enjoys protect by court orders from unconstitutionally discriminatory denials by States. Conscientious objection to aiding in the celebration of same sex marriage by bakers, photographers, printers, and others in the wedding services industry likewise falls, to the level of Bull Connor ugliness.