Thursday, April 30, 2015

Marriage Equality, the Fourteenth Amendment, and Loss of Religious Liberties: Not Everything Is a Function of the Law of Unintended Consequences




On the Law of Unintended Consequences

In Jurassic Park, Ian Malcolm introduced many of us to the Chaos Theory in mathematics. Chaos Theory, he explained, seeks to explain the behavior of highly complex systems, particularly the impact of small changes on such systems. In Malcolm’s wake, some folks wonder whether a butterfly flapping its wings in New York's Central Park might cause rain in China. Even given Chaos Theory, I suspect anyone that accuses a butterfly in New York City of intending to cause rain in China is bound to be looked on as "special."

Chaos Theory might help us understand another phenomenon, often identified as the Law of Unintended Consequences. How often have we been told that some ill outcome was not intended to be provoked by some action? There are too many instances of folks describing something as being the result of the law of unintended consequences to try to detail them all. Still, it is a source of disturbing amusement to consider examples of the Law of Unintended Consequences, so let me offer a couple examples.

Yes, The Law of Unintended Consequences Can Kill

Under Chairman Mao, Communist China instituted an agricultural campaign to improve production. They called it the "Four Pests" campaign. The four pests were sparrows, rats, flies and mosquitoes. Yes, sparrows. Sparrows enjoy grains, and fed on growing crops. So the Communists included sparrows in its extermination program.

Of course, any good campaign by the People must have good posters. Here's a poster showing siblings working hard to protect the Proletariat from the sparrows. (Notice the young lady's stringer of dead sparrows!)

The Four Pests Campaign aimed to insure great crops for "Ten Thousand Generations." Of course, doing so would depend on involving children in more than just the sling shooting of sparrows. So, here is a lovely poster from the early 1960's showing
Chinese children attacking the four pests; you can see the four pests depicted in the center rhombus.

Apparently, the Four Pests Campaign succeeded, after a certain manner. The sparrow population was substantially culled. In fact, so many sparrows were killed that its decline impacted the Chinese agricultural ecology. As it turns out, sparrows are a natural predator of locusts. Having killed of so many sparrows, the population of locusts exploded. The locusts ate freely and the Chinese agricultural economy suffered greatly.

That is a great example of the law of unintended consequences.

Here, the Chinese adopted the Four Pests Campaign as an intentional policy. Eliminate pests to increase crops and health. In the process, eliminate the predator in a natural prey-predator relationship. With no predator, the population of the prey explodes. Depending on the source consulted, some 20 million Chinese died during the Great Chinese Famine. It isn't known the precise number whose starvation resulted from killing the sparrow population and freeing the locust from its natural relationship in a predator-prey relationship.

Consider another example.

Under colonial rule, the British Government sought to ameliorate the problems of a heavy population of the highly poisonous cobra snake in India. The British Government attacked the problem with bureaucratic efficiency. It would pay a bounty for each dead cobra. The problem of the cobra population should have abated.

Enterprising Indians, however, realized that the British Colonial Government was offering more for a dead snake then the cost of breeding and rearing snake.  As a consequence, Indians began breeding cobras. Eventually, program expenses grew too great and the British Government canceled it. Indians, unable to sell the snakes to the government quickly resolved their own, new cobra problems. They release the snakes they were breeding into the wild. Ultimately, the snake control program increased the native cobra populations.

Now, suppose you worked in the Chinese government. Suppose you knew that the sparrow was a key predator for locusts and other crop pests. Suppose studies demonstrated that the damage and loss caused by the predatory sparrow would be infinitesimally smaller than the harm caused by locusts and other crop pests no longer suppressed by the sparrow. Suppose, finally, that you imposed the Four Pests Campaign anyway.

Could you really call the deaths and privations that followed crop failures due to locust swarms and pest infestations an "unintended consequence?" Of course you could, because you are the government, after all, and you are seldom held accountable for the consequences of government programs.

Frederick Bastiat, the French economist, didn't refer to the law of unintended consequences by that moniker. In his last monograph, What is Seen and What is Not Seen, he spoke of the immediate effects of our actions, and of the effects that come later and that should, to prevent harms, be foreseen:
In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them. There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.
Marriage Equality: Fourteenth Amendment Inevitability?

On Tuesday, April 28, the Supreme Court heard arguments in a set of consolidated cases arising out of Ohio, Michigan, Kentucky and Tennessee. In the cases, a federal appeals court had upheld the constitutionality of state laws limiting marriage to opposite sex couples. The appeals court rejected arguments by Marriage Equality advocates that the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment required States to license couples of the same sex to be married.

Other federal appeals courts to consider these issues had held that the Fourteenth Amendment required States to allow same sex couples equal access to marriage. Consequently, the decisions in the Ohio and related cases produced a conflict among the federal appeals courts. One of the Supreme Court's primary responsibilities is to insure uniformity across the Nation in the application of federal law, including the federal constitution. Consequently, the Supreme Court faced just such a lack of uniformity and just such need to address an inter circuit conflict.

The Supreme Court's decision, expected by the end of June, will either affirm the Sixth Circuit's decision or overturn it. If the Court affirms the Sixth Circuit, its decision would have the effect of restoring to other States the ability to enforce laws limiting marriage to opposite sex couples. If, on the other hand, the Court reverses the Sixth Circuit, the likely outcome will be the sweeping completion by judicial fiat of the alteration of the definition of legal marriage in the States of the Union.

Will Harms to Religious Organizations Result from Recognizing a Fourteenth Amendment Right to Marriage Equality

Now, as to the law of unintended consequences, an exchange between the Justices and Solicitor General Donald Verrilli has drawn some modest, post-argument attention.

The Solicitor General speaks for the United States in cases before the Court. Here, the Solicitor General filed a brief as "friend of the Court" and argued orally in support of the Petitioners. To clarify, the Solicitor General, representing us, argued that the Constitution requires recognition of the right to same sex marriage under the Fourteenth Amendment.

Remember, as we are told, legalizing same sex marriage has to do with recognizing the equal human dignity of gays and lesbians, and with recognizing that their intimate choices in relation to love, sex, and, yes, marriage, are accorded treatment under current law that leaves them as second-class citizens. Given the humanitarian appeal of such arguments, we might tempted to conclude that there are no dangerous unintended consequences that would result from ensconcing in the Constitution the recognition of a fundamental right to same sex marriage. And it is on that point that the Solicitor General's participation is concerning.

Here is a transcript excerpt from the argument:
CHIEF JUSTICE ROBERTS:  Counsel, I'd like to follow up in a line of questioning that Justice Scalia started. We have a concession from your friend that clergy will not be required to perform same­ sex marriage, but there are going to be harder questions.
Would a religious school that has married housing be required to afford such housing to same ­sex couples?
GENERAL VERRILLI:  I guess what I'd ­­ I'd like to make three points about that, if I could, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS:  Well, the first part ­­
GENERAL VERRILLI:  And I will ­­ and I'll go right at the question you asked. The first one is, of course, this Court's ruling addresses what the States must do under the Fourteenth Amendment.
And the ­­ and the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well ­­ you know, different states could strike different balances.
CHIEF JUSTICE ROBERTS:  What about Federal ­­ it's a Federal question if we make it a matter of constitutional law.
GENERAL VERRILLI:  But the question of what ­­ how States use their enforcement power is up to the States.
CHIEF JUSTICE ROBERTS:  Well, you have enforcement power, too.
GENERAL VERRILLI:  Right.  And ­­ and ­­ well, that's certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out.
And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same­ sex marriage, where there are and, in fact, they have arisen many times.  There ­­ there are these commitment ceremonies.
For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage.  That arose out of a commitment ceremony, and the ­­ and these, you know, commitment ceremonies are going to need florists and caterers.
JUSTICE ALITO:  Well, in the Bob Jones case, the Court held that a college was not entitled to tax ­exempt status if it opposed interracial marriage or  interracial dating.  So would the same apply to a university or a college if it opposed same­ sex marriage?
GENERAL VERRILLI:  You know, I ­­ I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I ­­ I don't deny that.  I don't deny that, Justice Alito.  It is ­­ it is going to be an issue.
So what was that all about?

Here, in a nutshell, is what that was all about. If the Constitution guarantees the right to marriage equality, it does so because it prohibits discrimination on the basis of sexual orientation. (The possible exception would be were such discrimination was required to meet a compelling government interest and was served by the most narrowly drawn regulation possible.) In turn, if the Constitution does this, if it says, not in so many words, that legal classifications based on sexual orientation are invidiously discriminatory, then marriage equality will not be mandate for change to be found in the Constitution.

In fact, based on a prior decision of the Supreme Court, it is entirely possible, if not likely, that the right of religious organizations to define their doctrines, to select their ministers and teachers, to maintain their identity, would be lost.

How is that likely to be the case?

As the excerpt above shows, the justices raised as a concern that a decision finding that the Fourteenth Amendment mandates marriage equality could result in revocation of tax exempt statuses of religious schools. The Solicitor General did nothing to assuage the concerns raised by the justices.

Remember, Justice Alito referred to "the Bob Jones case."

Bob Jones University: Losing Tax Exempt Status Due to Important Public Policies on Discrimination

In Bob Jones University v. United States, the Supreme Court held that the IRS had not violated the free exercise of religion rights of the University by revoking its tax exempt status. The IRS revoked BJU's tax exemption because it maintained a scheme of racially discriminatory admissions policies. For years, BJU denied admissions applications from blacks; later, BJU admitted blacks, but maintained a ban on interracial dating.

(As bizarre as it may be to say it, BJU apparently believed that God prohibits interracial marriage. As an aside, despite searching, I've been unable to find BJU's explanation of how its racial discrimination avoided what I like to refer to the Sin of Aaron and Miriam. Remember God inflicted leprosy on Moses' siblings after they made fun of Moses' dark skinned wife.)

BJU, having lost its tax exemption, sued the IRS to recover its exemption. The case came to the Supreme Court, which granted review. In its Order granting review, the Court stated that it would review this question:

Can the government prohibit race discrimination at the expense of the First Amendment's Free Exercise Clauses?

The Court concluded that BJU was ineligible for tax exempt status because, given its racially discriminatory policy, it did not qualify as a charitable organization. BJU never regained its tax exempt status, although a number of affiliated organizations are, themselves, set up as tax exempt organizations. Nearly the entire opinion for the Court focuses on interpretation of tax laws.

Despite the question on which the Court granted review, the Court's opinion barely glances at the issue of religious freedom as it speeds past it. The glance was, apparently, just enough to justify rejecting the argument for religious liberty. First, the Court concluded that the government had a compelling, fundamental, overriding interest in eliminating racial discrimination in education. Second, the Court concluded that the interests in religious freedom asserted by BJU were not able to be accommodated because no less restrictive means to secure the government interest was available:
The governmental interest at stake here is compelling. [T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education -- discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, [] and no 'less restrictive means,' [], are available to achieve the governmental interest.
Now, you can see Justice Alito's concern and the reason for his questions. By deciding the question presented by the petitioners, in the way requested by the petitioners, it is at least possible that the Court would be setting the stage for additional, "unintended" consequences. Among the consequences is the threat to the religious liberties of religious organizations, depending on their doctrines related to marriage, their policies on employment, and on other issues, such as admissions.

Petitioners challenged Ohio's statutory marriage scheme as a violation of the federal Constitution. To obtain relief from a federal court, they crafted a legal argument that depended on federal legal authority. That legal authority, as they posited it, is the Fourteenth Amendment, particularly the Due Process and Equal Protection Clauses of it. Had the federal courts agreed with Petitioners, concluding that Ohio's definition of marriage -- limiting legal marriage to opposite sex couples -- violates the Fourteenth Amendment, then Ohio's law on marriage would be unconstitutional.

Past is Prologue: Employment and Other Disputes Accusing Religious Organizations of Discrimination in Matters Sexual are Already Ongoing

So now we are left to ponder, as we await the likely June decision of the Supreme Court, what will be the consequences of recognizing a constitutional right to same sex marriage? Will the right to free exercise of religion -- a right expressly protected under the First Amendment from diminution by government -- get the same slipshod and shortchanging treatment in a future case that it received from the Court in Bob Jones University?

Now, lest you believe others who assert that it is panic peddling to warn that Catholic schools, Orthodox Jewish yeshivas, and B'ahai worship centers could lose their tax exempt status as a consequence of a Fourteenth Amendment right to marriage equality, you should know that there is a rich history of legal disputes over religious identity and moral conduct requirements in the arrangements of religiously affiliated schools.

Just last year, for example, a teacher employed with a Montana Catholic school sued the Butte Diocese (under law and Catholic doctrine, Catholic schools are administrative units of the Diocese, and the Diocese answers for the acts of the school). Shaela Evenson taught literature and physical education, and her employment was under a contract with the Diocese. When an anonymous tip advised the Diocese that an unmarried teacher in one of the Catholic schools of the Diocese had become pregnant, an investigation followed. The Diocese offered Evenson the opportunity to resign rather than to suffer termination due to her breach of contract.

Evenson declined and the Diocese fired her. She filed suit. Evenson's complaint states that she is not a "ministerial" (religious) employee, not even Catholic, and not involved in the teaching of religious classes. Her termination, she alleged violated the employment contract, federal law and state law.

Evenson's suit follows on the heels of another, brought by a teacher in a Catholic High School near Detroit. There, Barbara Webb, who lived in a same sex relationship, became pregnant through artificial insemination. The school investigated, and her termination also quickly followed. In Webb's case, the school offered to continue her health care coverage (presumably for the sake of needed health care during the pregnancy). Webb declined.

These two examples are just culled from a quick search on an internet search engine.

The idea that religious grounds might justify policies treating people disparately based on their religious identities, or based on their comportment with religious teachings seems to aggravate various issue groups. The American Civil Liberties Union, for example, warns of these dangers on its Religious Discrimination web page:
Similar warnings can be found on the pages of the Secular Coalition of AmericaAmericans United for Separation of Church and State, and People for the American Way.

Obviously, others have drawn the likely connection between a newly recognized constitutional right to marriage equality and practices previously recognized as protected due to their religious dimensions. Bob Jones University tells us that the IRS -- already shown to be a potent political tool when the administration in power seeks to use it in that way -- can justifiably deny tax exempt status where a sufficiently compelling government interest exists as part and parcel of an important public policy.

So we have been warned. We have been warned that schools, hospitals and convalescent facilities, elder care homes, and a variety of other religiously affiliated providers of services in the United States precariously possess their tax exempt status under federal law.

The thing is, I am fairly certain that, if such consequences follow, it won't be because they were unwanted, unforeseen, or, for that matter, unintended.

Tuesday, April 28, 2015

Cry Havoc and Let Slip the Charm City Dogs of Riot

Many of us watched, mesmerized, as rioters attacked their own city, Baltimore, yet again. Some will have asked, "how could this be allowed to happen?" Some will retort, "what do you mean, 'allowed to happen?'"

But, as we all know, the Mayor of Baltimore appears to have stated that, as a matter of policy and tactics, the government of Baltimore intentionally allowed the destruction. It's the quotation every news agency has played, and every political adviser thinks was the most idiotic thing to have said. The Mayor explained, “We also gave those who wish to destroy space to do that as well.”

Hmmmmmmmm.

Imagine how that plays out in your home, as a child begins a tantrum in the dining room near the cherished, antique china, left to you by your revered aunt. "Sweetheart, let's retreat to the bedroom and give her the space she needs to destroy stuff, if that's what she's inclined to do."

Yeah, not so much.

Then, later on, as you examine the two remaining partial plate settings, and your Mom walks into the dining room, in stunned horror, she says, "how could you let this happen?" And you reply, "let this happen? what makes you think I let this happen?"

She's obviously been talking to your hubby, because she immediately quotes your words back to you, "give her the space she needs to destroy stuff?" "What about giving her the paddling that will teach her to STOP destroying stuff?"

Incensed at hearing your words thrown back at you, you reply, "I won't tolerate having my words taken out of context!"

Yeah, so you've got that going for you.

That would be the automatic verbal recalculation power, where the words you spoke, which mean precisely what everyone understood them to mean when you said them, now no longer mean precisely what they mean when you said them. Fortunately for you, that power exists, otherwise, most parenting experts, family members, and friends would think you were some kind of idiot for letting a child run wild in a fit of destruction.

Then, of course, there's the mayor of Baltimore.

Monday, April 27, 2015

The Newest Logical Fallacy: Conscientious Objection as Jim Crow

As we continue our long slouch into societal moronism, the quality of conversation to be had on matters of keen public importance continues to decline. Perhaps part of the problem is that heart yearning has been substituted for rhetorical skill, sound information, and logic. Too often anymore, I see logical fallacies offered in argument as substitutes for reasoned discussion. If you are a bit older than me, you may have seen "Love is a Fallacy," a popular episode of the television comedy, The Many Loves of Dobey Gillis. If you haven't seen the episode, then you can read the script here.

These days my thoughts are focused on a particular fallacy, "poisoning the well," and a particular instance of it, the accusation that the exercise of conscientious objection to participating in same sex marriages constitutes the latter day revival of "Jim Crow." An argument "poisons the well" if it serves to prevent its refutation by instilling an unavoidable distrust in the one who would provide the refutation. In the Dobey Gillis episode, the example offered is of a debater who rises and begins by charging that his opponent is, and always has been, a liar. Such a charge risks the ability of the reasoning mind to even entertain what the opponent might place before it.

"Jim Crow!"

It has the identical effect. Who, after all, wants to be seen to be a racist? For that matter, who wants to be seen with a racist?

In my lifetime, laws that treated others differently based on race were invalidated as the Supreme Court came, more and more, to understand the color-blindness of the Constitution. Had the Court, in Plessy v. Ferguson, followed Justice Harlan, and then recognized that colorblindness, it would have rejected "separate but equal" schools, and other statutory racial classifications. Unfortunately, it took nearly three quarters of a century for the majority of the Court to catch up with Harlan.

Plessy held that a Louisiana statute requiring that public transportation (trains) be racially segregated did not violate the Fourteenth Amendment. The States had ratified the Fourteenth Amendment as a means of spanking the Supreme Court for its unwise, incorrect, and constitutionally unnecessary decision in Dred Scott v. Sandford. In Dred Scott, the Supreme Court stated that blacks were not, and could never be, citizens of the United States. The Fourteenth Amendment rebuked the Court with these words:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Thus, every black man, every black woman, every black child, every black baby BORN in the USA, born in the States of the Confederacy, born in the Border States, born in the Free States, every single one of them were immediately conferred with two legal statuses: national citizen and state citizen. As you can see from its text, the Fourteenth Amendment did more than that too. The Amendment debarred States from violating the "privileges and immunities" of US citizens, from depriving persons of life, liberty or property without due process of law, and from denying equal protection of the laws to any person.

Yet, Democrats in southern, "reconstructed" States began inflicting an additional 100 years war against racial equality despite the Fourteenth Amendment.

How did they carry out this war?

By enacting laws that legally required segregation of white and blacks in all, or virtually all, aspects of public life. Separate accommodations, separate schools, separate neighborhoods. These effects were directly imposed by statutes. This was GOVERNMENT imposed, GOVERNMENT enforced discrimination.

And, so as not to lose track of that important distinction, that is what JIM CROW LAWS were. They were the laws that IGNORED the FOURTEENTH AMENDMENT'S EQUALITY COMMAND and gave GOVERNMENT imprimatur to the concept, summarized in Plessy v. Ferguson, of "separate but equal."

What JIM CROW wasn't, however, is just as important as what it was.

Jim Crow was not the private choices of millions to prefer the company of others like themselves. Such choices might reflect an ugly heart, a prejudice based irrationally on skin tones. But such private discrimination never was within the reach of the prohibitions and mandates of the Fourteenth Amendment. So, although Jim Crow laws -- as the Supreme Court finally came to understand -- violated the guarantees of the Fourteenth Amendment, private discrimination never has and never did.

Why does this matter today?

Because today, if you search "Jim Crow" on news services of Bing, Google, or Yahoo, you will discover that many of the results are related to the question whether small businesses that refuse to participate in same sex wedding services are the "new Jim Crow."

That's right, despite the complete dissimilarity between private conscientious choice about providing support to the celebration of a same sex marriage and government mandates to segregate races, the statists and social fascists are afoot.


This isn't my first rodeo, cowboys.

From 1989 through 1993, I fought against a similar rhetorical attack that sought to
align persons of conscience today with racists of the past. Then, radical pro-abortionists responded to the peaceful, nonviolent actions of Operation Rescue by filing lawsuits under the "Ku Klux Klan Act of 1871." Imagine the kultur kampf had pro-abortionists succeeded in pinning the KKK moniker on pro-life demonstrators! Thankfully, the hard work and diligent research and writing that I, and others, lent to the battle resulted in the Supreme Court rejecting the application of the Ku Klux Klan Act to anti-abortion protests.

Still, there's nothing quite like skipping the engagement, nothing like not being put to the intellectual challenge of having your arguments sifted and measured by a reasoning mind, and nothing like going straight for the throat with a karate chop that stuns and blocks the windpipe. And that is precisely what is behind the effort to portray opposition to participation in same sex wedding ceremonies as the new "Jim Crow." Those who stridently charge that conscientious objection to participating in same sex wedding is the one and the same as the kind of brutal, dehumanizing discrimination and segregation of Jim Crow do so in what they hope will be a successful form of verbal martial arts.

So, it's important to understand the differences between conscientious objection by private citizens to engaging in conduct that violates their religious scruples and government coerced and directed segregation and discrimination. Having a full grasp of these points is an essential part of answering the questions that are popping faster than Orville's corn kernels in my microwave on the newest high contention issue of the 21st century.

Jim Crow Laws were precisely that:  laws.  Whether state laws, such as anti-miscegenation laws prohibiting racial intermarriage, or whether state laws like in Plessy requiring that transportation systems provide racially separated travel accommodations, or whether local ordinances requiring that parks and recreational facilities be racially separated. The dispute today is not over laws compelling segregation or discriminatory treatment. No one is being compelled by statute to separate Gays and Straights into separate accommodations. That is just not happening.

Here is what is happening.

As individuals begin to take advantage of this new-found right to "marriage equality," those individuals are, in fact, getting married. Some, of course, have quite publicly gotten married at courthouses and justices of the peace as soon as the right sprung. Others, however, more traditional of mind, are planning weddings. For them, unsurprisingly, the assistance of wedding services providers may be desired.

Wedding services providers include wedding planners, dress designers, printers, bakers, caterers, venue providers, and wedding performers including officiants, musicians, and DJs for receptions. As gay men and lesbian women seek out wedding services providers, they find some that gladly partner with them in creating a memorable wedding day and others that decline doing so. It appears that those declining to do so fall into a couple categories.

Of course, some service providers are overbooked and unavailable. No ground of complaint or controversy there. After all, if you arrive at Olive Garden or whatever you favorite eatery might be, and find you are facing a sixty minute wait, you might opt for a different provider. But controversy is arising in other cases, where wedding service providers decline to participate in the planning and execution of celebrations of same sex marriages based on religious scruples regarding marriage.

Among that smaller group, some of the refusals probably do not result in any further kerfuffle. That may be because the same sex celebrants take the refusal with a decent toleration for the sensibilities of others. Or, it may be that the service refusal occurs in a jurisdiction that does not treat religiously-based service refusals as a form of prohibited discrimination.

But, there is that smaller portion of total instances that comes to the public's attention. Disputes over refusals to make wedding cakes, provide floral arrangements, cater pizza receptions are being reported. (The Queer Eye for the Straight Guy really twitches every time it contemplates a pizza-based wedding reception -- unless the wedding toast is being done with a light pilsner.) Already there a small handful of administrative and judicial decisions has been generated arising from complaints that such service denials violate human rights codes or civil rights statutes.

Now the public conversation about these cases tells an ugly story.

More and more frequently, it appears that a kind of brutal and intolerant scheme is afoot. By that scheme, it is pretended that a view of marriage -- whether you share that view or not -- that has held sway for thousands of years, across hundreds of cultures, in dozens of religions, taught by well-regarded voices is, suddenly, a pernicious form of hatred, apparently the verbal equivalent to public lynching of blacks. As I have found myself saying, with algebraically increasing frequency, we are living in strange times.

Mind you, the marriage equality movement may prevail. If it does, that victory could be as soon as the end of June when the Supreme Court traditionally concludes its business by releasing decisions in any cases not yet decided from the current Term of Court. The same sex marriage cases being argued this week at the Supreme Court have the potential, if the Court reverses the decisions at issue,

If they do, then we can test whether those who prophesy the destruction of society are true prophets or false, simply by observing the progress of our society over time.

Whether they prevail or fail, we are threatened with greater losses.

First and foremost, as the bullies within the marriage equality movement (and that is, by no means, everyone in the movement) seek to arrest discourse by such attacks as the Jim Crow charge, there is a loss to liberty of discourse on matters of great public importance. This nation has always valued liberty of expression. We have sheltered even the expression of false facts from prior restraint, so great our commitment to that liberty has been.

Second, the demand that those that enjoy the natural right to liberty namely to engage in businesses, trades, and professions related to weddings, whether bakers, photographers, musicians, tailors and dressmakers, or the like, surrender their religious liberties as the price of doing so reflects a profound loss and harm. Our Nation was born because the previous governance here oppressed the enjoyment of the natural rights to life, liberty and the pursuit of happiness. The loss of the natural right to liberty embodied in conducting the affairs of one's profession or vocation is then compounded by the unreasoning attack on religious conscience.

I fear that some aspect of these losses will not even be missed. When Americans lose sight of Nature's God as the source of those rights, and concludes that these rights are granted by government, or by the Constitution, then they obtain an artificial spirit of objection to the stern stuff that are those natural rights. Ultimately, I don't have a sense that Americans will rise up in arms if this continues to spiral out of control, but if the statists continue to press for legal suppression of dissent and to punish conscience with economically fatal fines, the time for anger may slide into the time for the exercise of the right and duty to stated in the Declaration of Independence:
That 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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Friday, April 10, 2015

White House Introduces . . . the Genderless Restroom

The White House announced today that, to complete the cycle of expanding gender equality, it has completed plans for, and will shortly open, the first Gender Free Bathroom.
The announcement was accompanied by this photo of the new restroom.
White House spokesman Josh Earnest explained critical design features of the new facility:
"These unique restroom facilities comport with the psychological metareality of the genderless. As they understand themselves to be without gender (and therefore without urogenital configuration), these facilities are real cost savers. No plumbing. No running water. No paper towels versus hand dryer battles. While, for all the world, these strongly resemble empty rooms, these are precisely the kinds of restrooms that the genderless demand, and that the public's previous denial of have caused so much pain and anguish among the genderless."









‘Ere Now, I Wun’t Do That, If I Were You

A tragic story recently dropped in the news of a couple that drove off a road onto a non-existent bridge. An ensuing conflagration took the life of the woman, the man escaped with his life. Numerous “Road Closed” signs, cross bucks, and traffic barrels stood silent testimony to the non-existent bridge ahead. Still, Iftikhar Hussain relentlessly obeyed his GPS, which apparently had not been updated with information showing the bridge closed and demolished. News coverage can be found here.

A story like that will put you to puzzling.

How do you ignore all the visible evidence of danger? Why would you trust technology when your eyes tell you something different? Had this just been a bump in the road, we would chuckle, but a woman died, so laughter is unseemly. The caution in the tale remains.

A lifetime ago, I studied law at St. Louis University School of Law. Too many tales to tell there, but one that connects to this post is a well-known case from our first year Torts class. Torts are claims for damages to persons or property, and Torts class introduces law students to the law that governs such claims, the defenses against them, and the public policies that overarch a system of damage claims in our society.

One of the first cases we took up involved the unfortunate reality of spontaneous combustion. Not the X-Files kind of spontaneous combustion shown here, but the one that occurs when vegetative matter ferments, creates sufficient heat, and ultimately combusts. This case was one of badly stacked hay, and the failure to heed cautions.

As keepers and herders of cattle, sheep, horses and other farm animals, humans have relied on stored grasses to feed their animals for centuries. Such grasses are commonly called “hay” (hay’s cousin, straw, is not a food stock for animals, but used for bedding, insulation, and other purposes). To meet the needs of their herds, and as a commodity, farmers grow grasses and legumes, harvest the plants before blossoming, and gather the harvest in bundles called “bales.” You have seen hay bundles (or straw ones). Probably you have seen these, the cube bundles, or if you have been into farmland areas, you have probably seen the giant rolls.

Hay bales are a kind of insurance against hungry livestock. Oddly, hay, the product of planning, labor, and diligence, also represents a significant source of risks for the careless. If poorly gathered, poorly baled, or poorly stored, mold or bacteria can contaminate hay, raising risks of harm to livestock and to humans. Gathering, moving and stacking hay bales presents logistical considerations, safety not being the least significant one.

In law school, in that Torts class, we studied a case involving one of those hay-related risks, realized. Studying the case afforded us, as students, the opportunity to consider whether one property owner owed a duty to the owners of adjoining properties in situations where they stored bundles of hay on their property. Manlove (a suggestively naughty name for, as it turns out, a naughty man) owned property adjoining that of Vaughan. Their properties, bucolic, rural, English ones, productive of the kinds of grasses that could serve well as animal fodder, ought to have been home to two harmonious subjects of the Crown. Had that been the case, then, of course, there would not have been a case for us to study. Had Manlove put his property to other use, too, he might not have become the watchword he did become. For Manlove has become the watchword to law students, to tort law professors, and to lawyers, for a legal concept called reasonable care.

The law, like many professions, floats on a sea of jargon. The word Torts, taking the place of the words, personal injury, or damages, is one such instance. Others could be offered. Manlove gives us a legal concept of “duty,” expressed in legal jargon as reasonable care. It all started out innocently enough.

Manlove grew grasses for hay. Manlove harvested those grasses. Manlove made bundles, bales, of those grasses. Manlove stored those bundles. His manner of stacking and storing his bales gave rise to the dispute between Manlove and his neighbor, Vaughan.

Manlove’s stack of bales – what farmers called a hayrick – spontaneously combusted. His neighbor’s property, with two cottages on it, adjoined the location of the flaming hayrick. The cottages suffered serious damage from the flames of Manlove’s fire.

Now today, like me, the Average Joe probably could not make a good bundle on his own (and we all know how tough it is to make a bundle under this administration), though he might, just maybe, make a reasonable stack from bales formed for him by another. But, would I have known, would the average Joe have known, that unless careful planning and execution were involved, the hayrick might become a flaming pyre?

As it turned out, even if Manlove did not know about fermentation of vegetative matter, the risks of spontaneous combustion and the like, his neighbors did. Our Torts professor, Nicolas Terry, hails from Ye Merry Olde England. Professor Terry gave us, in the accent of his native land, a rendition of the neighbor’s caution: “Ere now, I wun’t do that if I were you!”

It seemed that passersby could see that the hayrick constructed by Manlove presented serious risks of fire. Indeed, Manlove gave every indication of understanding the possible risk of fire, because, in response to the neighbor’s adjuration, he bombasted that “he would chance it.”

We tell such lovely tales, at least in law school, only because they turn out so badly. As a tale, the story of the bales of Manlove ends badly. The bales, too tightly packed, overly wet, and very fermentable, spontaneously ignited. Sparks carried on the wind to Vaughan’s cottages. Vaughan’s thatched roof cottages caught fire. A conflagration ensued. The result was much like that shown here.

Ere now, I wun’t do that.

Afterward, of course, a caution like that, ignored as it was by Manlove, is fairly damning. In the subsequent suit, Manlove resisted Vaughan’s claim for damages. He asserted that the conflagration and its consequence were not foreseeable outcomes and, therefore, preventable.

Yet, there were those words, “’ere now, I wun’t do that if I were you!” Ultimately, an English court concluded that Manlove failed to act with “reasonable care.” That advance caution told the tale of his carelessness, for even the casual observation of the passersby testified that Manlove created the risk that caused Vaughan’s loss.

We have the story of Manlove ignoring the advice of neighbors and passersby that his hayrick was a fire risk. We have the story of Iftikhar Hussain and his late wife, ignoring the obvious warnings all around them, blindly obeying the out-of-date GPS system. Cautionary tales like these have value, if at all, when we take the lesson of them. So let us take the lesson.

In 1787, the united States, thirteen of them, sent delegates to Philadelphia to consider changes to the Articles of Confederation that would strengthen the ability of the confederated States to respond to dangers and unrest. The proximate motivation for that meeting was the recently concluded Shay’s Rebellion. That armed uprising, most fiercely involving farmers of Massachusetts, including the eponymous Daniel Shay, resulted from a combination of rising tax debts, crop losses, and the threat and reality of foreclosures on family farms. Uprisings extended down to South Carolina, but were particularly heated in Massachusetts.

Under the Articles of Confederation, the ability of the confederated States to provide military assistance to each other when threatened with such uprisings, even when devolving into anarchy, was quite constrained. Worse, when Congress was not in session, it required the assent of a super-majority of the States – nine States – to exercise the powers delegated to the Congress. In the face of Shay’s Rebellion, the need for military assistance arose. Due to the restrictiveness of the Articles, however, the Confederation could not call out troops in a timely fashion.

With the “weaknesses” of the Articles thus exposed, the States responded to a call of the Congress to assemble representatives in Philadelphia to consider how the Articles might be improved, the Confederation strengthened. Ultimately, the Philadelphia Convention in the summer of 1787 produced the proposed Constitution of the United States. Congress, in turn, propounded that Constitution for consideration by the States. The requisite number to ratify the Constitution – nine States – did so by 1789. Getting to ratification provoked a national conversation. It was in that national conversation that, I would like to suggest, one or more “’ere now, I wun’t do that” appeared.

For present purposes, and because of the centrality of the federal courts in most every contested issue of public policy today, I offer this insight into the “’ere now” that cautioned against the specific constitutional framework for the Judicial Branch being considered by the States.

First principles, though, we should lay briefly out.

First, the States pre-existed the Constitution. In fact, the States gave life to the Constitution by their ratification of the same. Ronald Reagan, in his First Inaugural Address, explained, “All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.” Subsequent machinations – for example, by the Supreme Court – to deny or to denigrate the role of the States and to attribute the ratification of the Constitution to the People of the country generally – simply ignore fact and history.

Second, the general government set up in the Constitution was one of defined, limited powers. James Madison, the architect of the Virginia Plan that guided much of the discussions in the 1787 Philadelphia Constitutional Convention, and one of three authors of the Federalist Papers, put this point as follows:  “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Delegates from States less than sanguine about a growing general government viewed this principle as an essential bulwark against the aggrandizement of power in the general government. Any claim that a Constitution setting up a government of unrestrained powers would have been accepted by a sufficient number of States is beyond suspect.

Third, in framing the general government, the States divided the powers of that government among three branches, assigning entirely and solely to each branch powers of particular kinds. To the Legislative Branch, the States assigned all legislative powers; to the Executive Branch, the States assigned all executive powers; and, to the Judicial Branch, the States assigned all judicial powers.

Many points of dispute needed resolution by the States as part of, or prior to, their ratification debates. For example, not all the States agreed on the need for a stronger general government. The means of accomplishing various tasks typical of governments had to be addressed, including such things as regulating internal and international commerce, regulating relations with other nations, the designation of officers and functionaries of the government, had to be decided on, and justified when questioned. These and myriad other issues required resolution. Resolution required evaluation and debate.

Debate ensued. Key voices in the debate spoke through the journals and papers of the day. Opponents of the Constitution, Anti-Federalists, laid out their objections to the general framework and particular points. Supporters of the Constitution, Federalists, offered rebuttals to the Anti-Federalists’ arguments, and separate arguments for the Constitution and its particulars.

In The Federalist No. 78, Alexander Hamilton responded to Anti-Federalist concerns about the dangers inherent in the Judicial Branch proposed in the Constitution. Hamilton sought to assuage fears of an encroaching, threatening, and enlarging Judiciary. He wrote:



The least dangerous branch to the liberties of the People, he asserted. Yes, Hamilton actually wrote those words. How times have proven him wrong repeatedly.

Beginning with its assertion of the sole power to construe, to state definitively the meaning of the Constitution, asserted by the Supreme Court as ground for striking down a federal statute in a case called Marbury v. Madison, the Judiciary has never shrunk, has never abandoned gained ground. Rather, whether actually expanding the bounds of its decisional territory in particular cases, or simply laying groundwork for doing so at subsequent opportunities, the Judicial Branch has worked relentlessly to aggrandize its power, to undermine the power of the States, and to arrogate to itself, in preference to the elected branches, powers related to determining the policy of the entire Nation on a broad spectrum of matters.

Now, as to that “’ere now, I wun’t do that,” allow me to expound.

One Anti-Federalist in particular, Brutus, widely accepted to have been the nom de plum of Robert Yates, saw matters rather differently than Hamilton. In fact, rather than the least dangerous branch, Brutus foresaw that the Judicial Branch, constructed as provided in the Constitution, would become the most dangerous to the liberties of the People.
In a series of essays, Brutus devastated Hamilton’s glib treatment of the Judicial Branch:







I have included highlights from Brutus’ essays only, but I link them so you can read them in full. At the same time, I summarize briefly what Brutus expressed:

First, under the proposed Constitution, the Judiciary will predominate over the Legislative Branch, and over the States. The key to its predomination is its duty of deciding cases “arising under the Constitution. . . .” The Judiciary is required to decide such cases, but is not beholden to a superior power. Moreover, its own powers are not expressly circumscribed, except to the extent that the Judiciary can act only in actual cases and controversies.

Second, as proposed, the Judiciary will not find itself bound to the letter of the Constitution. Rather, the Judiciary will seek to apprehend and enforce the “spirit” and “intention” of it. How presciently Brutus looked into the future, seeing today’s unsettled dispute between hide-bound Constitutionalists and living breathing constitutionalists, between the Scalias and Thomases (and Jeffersons and Lincolns) on one hand and the Ginsbergs and Breyers (and the Wilsons and Roosevelts) on the other.

Third, as the Judiciary conducts its business in the deciding of cases and controversies, it will, by steps large and small, constantly and inexorably chip away at the independent status of the States in their reserved powers and rights. This erosion of the status of the States will not come by accident, through unintended consequences. Rather, it will be in the nature of the Judiciary to so construe the Constitution as to expand federal jurisdictions and contract State jurisdictions.

Thomas Jefferson offered an insight into this aspect of the Judiciary. In a September 1820 letter to William Jarvis, responding to Jarvis’ gift of his then-recently published Republican, Jefferson addressed Jarvis’ view that judges would be “the ultimate arbiters of all constitutional questions.” Jefferson considered that “a very dangerous doctrine indeed, and one which would place [the Nation] under the despotism of an oligarchy.” He continued, “They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the states, and to consolidate all power in the hands of that government, in which they have so important a freehold estate.”

Fourth, and most disconcertingly, Brutus could not conceive of a plan better designed to abolish state and local government than the Judicial power of the proposed Constitution. It contained within itself the seeds of the destruction of States. Brutus, if he was Robert Yates, had grounds to consider that such a design was intentional. Among the proposed plans for the new Constitution, one plan, offered by Alexander Hamilton, would have virtually eliminated the separate State governments, reducing them, essentially, to departments or bureaus of the central government. Hamilton’s specifics too much resembled the English Parliamentary system and was rejected by the Convention. But Hamilton became a patron of the proposed Constitution and, with James Madison and John Jay, a principal author of the Federalist Papers.

Brutus offered his “’ere now.” Hamilton offered his sophistical contentions about the Judiciary. Now the time has come to tell the end of tale. In Hussain’s case, the story ended badly. In Manlove’s case, the story ended badly. In those cases, wise counsel was ignored, left untended.

And here?

It is fair to say, with the acuity of hindsight, that Brutus looked into this Nation’s future with surprising insight. His conclusions about the dominance of the Court over the States and over the other branches of the Court have proven correct beyond the wildest dreams of oligarchical rule.

Consider how, by bits and steps, the Judicial Branch, in its task of interpreting and applying the Constitution, whittled away at the power of State governments in areas long thought to be entirely separate and unreachable by the general government:

While education was a matter of purely local and State law, and was left alone as such for more than a century under the Constitution, in a pair of cases, Pierce v. Society of Sisters and Meyer v. Nebraska, the Supreme Court struck down state laws governing educational practices of the States. In Pierce, the stricken law prevented parents from exercising a prerogative to educate their children in private, parochial schools. In Meyer, the stricken law required all schools, public or private, to offer their courses of study in the English language. These two cases came out of an era of the Supreme Court’s growing affinity for the use of the Due Process Clause of the Fourteenth Amendment as an ax to hack away at State sovereignty across a broad field of human interests.

In like vein, in a case out of Virginia, Loving v. Virginia, the Supreme Court struck down a Virginia law prohibiting interracial marriage. Miscegenation laws served, I suppose, a highly dubious interest of the Commonwealth of Virginia in some irrationally perceived genetic danger resulting from such commingling. Again, before the era in which the Supreme Court had begun to assert a federal constitutional basis for evaluating and rejecting a raft of State laws long accepted as within the separate, sovereign spheres of State authority, such a decision would have surprised, if for no reason other than the assertion that the Constitution required it.

But Loving had simply trod further down a path explored by the Judicial Branch in striking State laws regulating contraception. There, in Griswold v. Connecticut, the Supreme Court again relied on some previously unknown matrix of federal power to invalidate a State law drawn and enacted to regulate in an area traditionally within the reach of State sovereignty.

A line drawn through State laws on contraception and miscegenation could be safely predicted to also strike out restrictions on the practice of abortion. Roe v. Wade followed rather quickly on the heels of those decisions. A judgment allowing a woman and her doctor, even in the face of a State’s interest in the life of a child, to gut that child, to aspirate her little body from the woman’s larger one, readily points down the path to a rejection of State authority to regulate human sexual relations at all. In fact, though it took a quarter of a century, the Supreme Court extended its reasoning in the Abortion Cases to strike down statutes prohibiting homosexual sexual activity, particularly sodomy, in Lawrence v. Texas.

In fact, that red pencil of Judicial arrogation is quite likely to continue right on striking down laws of the States regulating areas of human intercourse long thought to be solely the province of State regulation. By July, we will discover whether the next most likely victim of the Judicial Branch’s red pencil -- State laws and constitutional provisions limiting marriage -- to opposite sex couples will be swallowed by the gaping maw of the Judicial Branch.

Nor has the Judicial Branch been wanting in attending to the task of demonstrating its predominance among the coordinate branches of the general government.

The Judicial Branch struck down, and strikes down, congressional enactments at a pace that might seem glacial to activists, but maniacal to Brutus and to Jefferson. Beginning with the previously mentioned Marbury v. Madison, the Judicial Branch asserted and exercised a power to review congressional enactments. The Court used that power first in Marbury, where it struck down a law giving certain claimants a right to file suit in the Supreme Court. Subsequently, the Judicial Branch has interposed itself in (and today continues to interpose itself in) the great questions of law and policy formerly thought to be most safely reposed in the representative body of the People, the Legislative Branch.

In Dred Scott v. Sandford, for example, the Supreme Court ended three decades of uneasy truce between the States bitterly opposed to each other over this very question. There, the Supreme Court struck down the Compromise of 1820, which checked the growth of slavery and in federally administered territories entirely prohibited the practice. The Court not only held that blacks were not, and never could be citizens of the United States in that case, but expressly denied that the Congress had power to regulate slavery in federally administered territories. A war amended that decision, but at the cost of near a half million lives.

The Judicial Branch has struck down federal statutes on campaign finance.

The Judicial Branch has struck down a federal statute on Voting Rights.

The Judicial Branch has struck down federal statutes on marriage, and on religious liberties.

In the election of 1800, what Jefferson called the Revolution of 1800, the nation turned from the Federalists toward the Jeffersonian Republicans. Still, in the maddening rush of the lame duck Federalist Congress, the outgoing Congress revised the Judicial Branch’s structure, created the Circuit Courts of Appeal, installed a raft of judges of Federalist sympathy, and left in their ruinous wake, what Jefferson considered to be the most insurmountable problem.  For even with the great realignment in the Legislative Branch and the Executive Branch, the entrenchment of Federalist judges guaranteed great difficulty or complete impossibility for the tasks of shoring up the separate sovereignty of the States and the attendant liberties of the People.

So, ‘ere now, against Brutus’ warning, and with the insane encouragement of Alexander “Mr. Toad” Hamilton, our Nation has, in fact, been on a wild ride of judicial arrogation and excess extending two full centuries and beyond. So, when you ask yourself how could the Hussains have driven off a nonexistent bridge, how could Manlove have burned his neighbor’s cottages, even in the face of such obvious warnings a highway safety signs and neighborly “’ere nows,” it might be wise to wonder which tragedy is greatest.




Tuesday, April 7, 2015

US Citizenship: Membership Has Its Privileges


If you’re old enough, you remember the slogan, heavily promoted, for the American Express Card.  The long running campaign suggested that more was gotten by having the American Express Card than just a means of conducting cashless transactions. Even today, the campaign, officially retired in 1996 after a nine-year run, echoes in the company’s continued promotion of a broad array of services that constitute the “privileges” of being an American Express cardholder.

As citizens of the United States, we have a sense that we are “privileged.” Certainly, comparing the standard of living here with that in many other nations confirms that the average American is, in fact, very privileged. Still, many of us have friends, acquaintances, work associates, even relatives, who share in that higher standard of living, but who are not US citizens.

So, here is a question to consider:  if the United States decided to conduct a campaign to add additional citizens – not merely guests, permanent resident aliens, or undocumented persons – and it adopted as an adman’s pitch, “Citizenship has its privileges,” what would those privileges be?

Obviously, privileges of citizenship cannot simply be the same benefits that flow to anyone present within the territorial boundaries of the country. If it were, why bother to provide a system of naturalization that adds 700,000 naturalized citizens to our body politic each year? In the law, you are a citizen, or you are an alien. We work alongside, play alongside, recreate, shop and walk alongside aliens everyday. Yet, in the main, nearly one million aliens amongst us each year seek and get the “golden ticket” of citizenship. Also of note, a comparatively tiny number of citizens are rushing for the exit and renouncing our primal claims of citizenship.

So, then, what are the privileges of citizenship?

As it turns out, the answer depends on who provides it.

For example, the federal government lists these “benefits” of citizenship: bringing family members to the United States; the right to vote; the right to protection by the government when abroad, including when victimized by crime or endangered by disasters or emergencies; access to a larger pool of employment opportunities, as many federal jobs are conditioned on citizenship; the right to participate in a federal jury; and, a larger pool of federal student aid.

More specifically, if you ask the folks whose business it is to process applications for citizenship, the US Citizenship and Immigration Services, they supplement the above list with these additional “rights:” freedom of expression; freedom of worship; the right to a prompt, fair trial; the right to run for elective office; and, freedom to pursue “life, liberty and the pursuit of happiness.”

Attorneys in private practice note additional benefits of citizenship. If a naturalized citizen commits a crime and a permanent resident alien commits the same crime, unless the crime was one of fraud in applying for citizenship (think John Demjanjuk), the naturalized citizen cannot be deported to her home country. Her twin sister, the permanent resident alien, can be deported. Also, as lawyers will explain, the federal tax code exempts certain property transfers from a deceased spouse to a surviving one, but only if the spouse is a citizen.

Still, the foregoing benefits and privileges cannot fully answer the question.

Reading immigrants’ stories helps.

Opportunity. Freedom. A future with a future in it. Expressing appreciation for the sacrifices made by this Nation, particularly its military sons and daughters.

We tend to take these things for granted. The vast majority of Americans are not in reduced poverty, living, literally, moment by moment in fear of harms, whether from criminals, tyrants, famine, or otherwise. Nor have we lived all our lives – from cradle to grave – in a society that requires or prizes severe regimentation. We choose where we live. We choose what we study. We choose whether to pursue professions or to undertake trades. We even choose burial or cremation at the end of our days.

Some immigrants, particularly coming from lands of limited opportunity, note that America has been one place where everyone has the opportunity to be great, to stand apart from the crowd, to distinguish ourselves.

Just as Soviet-style regimentation is unfamiliar here in the US, many others come to America fleeing oppressions of one kind or another. For some, that oppression affects the most natural of human instincts: to propagate the species. The 1993 grounding of the Chinese merchant ship Golden Venture, followed thereafter by numerous asylum applications by Chinese nationals, brought new light to the brutality of China’s coercive one-child policy, enforced with nonconsensual abortions and sterilizations. Other repressive regimes have driving immigrants to America’s shores, including Myanmar, Communist Vietnam and Cuba.

I suppose that one privilege – to me – stands above all the others that might be named. That one is the power to cast a vote, and by that vote to help shape the future in which we will live, in which our children will live, and in which new Americans will be made welcome.

The next quadrennial presidential election season approaches. Already two would be nominees have announced their pursuit of the Republican nomination. As the race comes into full swing, the clamor and din, the clashing of issues and personalities, will not fade, but rise to its expected Kabuki crescendo. Strong opinions sharply stated will, at least for a time, offer voters, seasoned ones and virginal voters, seemingly irreconcilable conflicts among candidates and parties.

Now is as good a time as any to place firmly in our minds the sage and humble supplication of Abraham Lincoln, offered in his First Inaugural Address. Recall that Lincoln’s election, for those that feared an indomitable federal government would overwhelm that natural right framed in the Declaration, to throw off a government repressive of liberty, was a clarion. Such was the reaction that Lincoln, essentially, snuck into the Nation’s Capitol. While he avoided an assassin’s bullet that day, the danger of violent dissent never dissipated. Still, in speaking to the yet united States, he appealed to calm, to reason, to Christian sentiment, in voice no less needed now as then:





As the election approaches, I suspect some will find offense in my commentaries about various candidates and various issues. I hope you will find in me this same aspiration and invitation as offered by Lincoln:  “We must not be enemies. Though passion may have strained it must not break our bonds of affection.”

Wednesday, April 1, 2015

Bigotry or Liberty?

So I stopped at a kosher deli and ordered a ham sandwich. They refused me service!

Then I went by the Halal meat market and ordered a ham sandwich. They refused me service!

I tried to hire Jackson Pollock to paint a family portrait. He refused me service!

I stopped by the Washington Post and asked to buy advertising space to run a full page editorial criticizing the Washington Post's liberal biases. They refused me service!

I went by the Catholic Church and tried to get the priest to perform a bar mitzvah. He refused me service!

I visited the Baptist Church down the street and asked for some transubstantiated communion. He refused me service!

I slipped on a yarmulke and tried to get into a Neo Nazi meeting. They refused me service!

Suddenly, it struck me! This Nation is filled with bigots! The American University Women's Association, the National Association for the Advancement of COLORED People, La Raza, the Ku Klux Klan, Girl Scouts USA, etc etc etc.

And it's not just private clubs!

Businesses refuse to sell me the products I like.

Jewish delis and halal meat markets inconvenience me by not carrying ham. Artists inconvenience me by claiming a right to control their creativity. Editors oppress me by refusing to adopt my messages in their papers.

Or. perhaps, this Nation is filled with people who have the natural right to LIBERTY. A right not granted by the State (sorry Chris Cuomo) but by God. And encompassed within that right is a freedom to associate with others and to associate with ideas.

How meaningless is the right to associate and to associate yourself with ideas if the government can come along and compel you to associate with those that you do not freely choose to join with, or to express ideas that you have not freely adopted for yourself.

Do I think that Denny's or Kinko's should deny service to whites or blacks, straights or gays, Catholics or Protestants? No.

If I go into Denny's and demand that they serve me a product they don't carry, however, that's not discrimination. And, when it comes to printing, if I go into Kinko's and demand that they make 100 copies of a copyrighted work belonging to another, and they decline, that's not discrimination. Denny's isn't in the business of serving Big Macs and Kinko's is not in the business of copyright infringement.

Now, oftentimes, there is no particular exercise of natural rights to liberty at stake when a person seeks to have the benefit of another's entry into a business or offering of a service. And, for most businesses, a foolish insistence on the right to refuse service is a foolish commitment to less foot traffic, lower volumes and, subsequently, reduced income, 

So, some folks will prefer not to do business with me, or you, or another. Given our distaste -- ensconced in law -- for monopoly, the unwillingness of one to do business with another only means that the person denied service will get their product or service from someone else, someone that has no such strong sense -- whether founded in religion, morality, politics, ideology, or just stupidity -- that it's better to lose a sale than to compromise a view, an opinion, a belief or a conviction.

There is more than hubris in the current brouhaha over the Indiana Religious Freedom Restoration Act. There is a terrible shortsighted ignorance of how the ruination of the freedoms belonging to others ruins our own freedoms too.

Sure, we'd love the day when Klansmen invite African Americans into their homes for kindly discussions over dinner. We'd all love the day when vitriolic demagogues in the Democratic Party and rascally radicals in the Republican Party worked together for the common good. But who is fooling whom when it is the jackboot on the neck that obtains the cooperation of all?