Ciceronian Review

Sharp and Smudgy Lines

Earlier I wrote about the Arizona Brush & Nib case, another in the line of legal cases addressing the conflict, real or apparent, between religious freedoms and anti-discrimination law.  I suggested the possibility of carving out marriage for special treatment by anti-discrimination law, but did not really say why that would be reasonable.  Marriage is a peculiarly mixed religious and secular event.  Marriages are registered with the state and many are performed by civil servants.  )I have no idea of the relative numbers of civil and religious marriages.)  The practice in the US is not clearly one or the other, but for a large portion of the population, the religious significance of marriage is quite clear and quite important.  It is then reasonable to think that for some the religious significance of the marriage is integral to the event, for those directly participating as the ones being wed and their witnessing families and friends, and for those providing services enabling the celebration.  It looks and is different from the services enabling a graduation party, for example.  Recognizing this and allowing the religious to limit their participation in marriages that are contrary to their religious views treats their religious committments with respect, it respects their religious identity, which is to say their identity.  It says nothing about the identities of others or about the place of others in society.  It could be read then as not challenging or impugning the citizenship and dignity of others.  So the same-sex couple are not denied dignity or rightful place by allowing the religious to decline wedding specific services for a wedding the religious believe offends their religious committments.  

Of course, it looks or may look rather different from the perspective of the persons denied services.  Even if one accepted the above, there must certainly be available equivalent services (in cost and quality) in the same place, which I think likely in large urban areas.  So one has a line that accommodates both the religious and same-sex couple.  And the line looks sharp.  Well, looks.

This is a candidate in large part because it keeps a tight focus on marriage, building on the peculiarly religious aspects of the event.  I am not bothered by the secular versions -- fight for civil unions outside of marriage and put the marriage into a fully religious category.  That is not the big obstacle at hand.  The big obstacle at hand is that it does not look reasonable to confine the special treatment of the religious to the little world of wedding cakes and invitations or photo shoots.  The religious view can as well be pervasive and ubiquitous.  Religion is a fundamental aspect of identity, or can be. And where it is, it can be expected that in some significant portion of cases to imbue every aspect of life with choice that it is weighty.  There is no means to put a line around weddings that will not, on more or less the same grounds, be drawn to include all or most other transactions or interactions.  Hobby Lobby comes to mind.  So one exempts weddings and paying insurance.  Why stop there?  How to stop there with reasons? 

I think then one is at a fork in the road:devalue the religious identity, leave religious practice with little dignity, or leave others at the mercy of the religious.

Drawing Lines

On Monday, the Arizona Supreme Court decided an important case on commercial services and same sex weddings.  The decision, 4-3, can be found this link.  The context of that decision, Brush & Nib Studio v. City of Phoenix, was that Brush & Nib declined to provide calligraphic services for same sex weddings.  The business is owned in partnership by two religious Christians who believe that same sex marriage is wrong.  The business provides handmade, individually designed wedding materials -- invitations, notice, and so on.  They decline to provide the services for same sex weddings.  They sued the City of Phoenix to prevent enforcement of Phoenix's anti-discrimination ordinances.  Brush & Nib lost at the trial court, and before the Court of Appeals, but prevailed, in significant part, before the Supreme Court.  Relying on the Arizona Constitution and the state Freedom of Religion statute, the Supreme Court held that Brush & Nib could decline to provide services to same sex weddings.  There is a limitation, however, in that the religious protection extended only to special created materials, substantially similar to those in the appendix.  (I think it not a limit for Brush & Nib because almost everything they do is captured there.  But it may be a real limit for others seeking the same treatment, and clearly is so intended, whether or not it is a workable standard.). 

There are ways in which the case echoes Masterpiece Cakes.  It takes account of that decision and the decisions by the Washington and New Mexico Supreme Courts, although Arizona rejects the analyses of its sister states.  One piece that is similar to the Masterpiece Cakes case is that in both that and this case, the business testified, without contradiction, that it did not refuse service based on sexual orientation and that it would refuse to provide services for a same sex wedding without regard for the sexual orientation of the customer.  The Arizona dissenters thought that a fraud, or to be less polemical, were unpersuaded that there was a line to be drawn there.  In refusing to provides services for a same sex wedding, the businesses necessarily were refusing service on the basis of sexual orientation.  The dissenters in both cases took the line that refusal of service for same sex weddings was indistinguishable from refusing service for inter-racial marriages, and the latter is clearly barred by law (refusing service).  I am not sure how the Masterpiece majority thinks of the purported line, but the majority in Arizona did not accept that there was no line.  For them, there is a difference between refusing service because of sexual orientation and refusing to provide services for a same sex wedding.  (The arguments in the Arizona opinion are state law arguments -- they run from the state Constitution which has broader language on speech and religion protections than does the US Constitution.  I want to come back to that another day.)

Is there a defensible line where the Arizona majority drew it?  Is refusal to service a same sex wedding indistinguishable from refusing service because of sexual orientation?  For lots of reasons, one can see an affirmative response.  The analogies to race are tremendous pressure in that direction.  But I think it is harder question really.  Assume that there is some significant artistic expression involved in the calligraphic work.  The evidence says that they provide services without regard to sexual orientation -- so Brush & Nib provide their services for different sex weddings when purchased by one with same sex orientation.  There is no inquiry about sexual orientation of the purchaser; no inquiry about the sexual orientations of the to-be-wedded people in different sex weddings (gay men and lesbians still get married to other sex partners).  That is different than the race cases.  There, service was refused on the basis of (perceived) race of the purchaser.  It was a blanket refusal.  These cases aren't.  I am not sure if it makes a difference in the end, but it complicates things.  The refusal is not, or not as easily characterized as, an expression of contempt for those refused, there is no air of 'taint' attached to service here that was throughout and strong in the race case.  We do not need to doubt that Brush & Nib have no ill-will based on sexual orientation.  At least the refusal of service does not express hatred or contempt or the like.  It is a religious view.  Well, imagine the issue is abortion rather than same sex wedding, and how courts treat refusal to pay insurance that might cover abortions, or refusals to provide accurate or truthful counseling information about abortion.  The judgments made about the participants are, I find, complicated.

     

Desert

Bolton is gone from the Administration, reportedly because he was too belligerent, i.e., too ready to go to war with Iran.  The list of defects of Trump and his administration is long, but he has not yet take the US into a new war.  So grant him that, as Robert Paul Wolff says.  Trump has not actually ended US involvement in any wars either, so he is a kind of half dove.  More or less Obama, as both promised to end at least one war for the US and did not, and both, I think, raised US involvement a bit.  

A refinery in Saudi Arabia has been bombed, apparently by drone attack.  Iran denies involvement.  The US accuses Iran of involvement.  The Houthi in Yemen claim involvement.  Houthi rely on Iran for various forms of support.  The US supports Saudi Arabia in many ways.  Do any of them tell the truth?  I can say I do not believe Iran about much of anything, and, about that part of the world, believe some but not a lot of what the US says, and nothing much of what Saudia Arabia says, or the Houth.  But now the US is making its case, with an eye on military action.  

First of all, we have several wars in the area and have no need of another.  Saudia Arabia has a big military: the US sells SA high value armaments and an advanced air force.  So far it seems mostly used to whack residents of the country and to bomb wedding parties in Yemen.  Why then not defend their own oil facilities?  Is the point of the weapons sales to SA just to provide income to US companies?

 

 

And Baby Makes for a Stay.

North Carolina has adopted a new General Rule 26 (actually a revision of an existing Rule) according lawyers who are parents a 12-week period they may designate in which no deposition or hearings will occur in any case for which they are counsel of record.  (See here and here for example.  The Rule is here.) The previous Rule provided three weeks which an attorney could designate s free of depositions and hearings.  The idea is to make lawyers' lives more pleasant, and the new versionb to enable new parents, whether by birth or adoption, to spend time with the new child early in its life in the family.  It looks like a good idea for the families of lawyers and will very likely improve the lives of the lawyers and their families.  It has made some national news. 

As I read the Rule, the three week period is open to any lawyer for any reason, on 90-days written notice (and before any proceedings are scheduled that would conflict with the period).  Hence, it is possible to go on vacation for more than a weekend.  The amendment adds 12 weeks out of any 24 week period following birth or adoption to the secure-leave.  The "secure-leave" periods are allocated on calendar years.  There are some aspects that are puzzling to me, like where the notices go and whether there is service, but I expect that those are solved by the other procedural rules of the courts.  (E.g., notice in criminal cases goes to the DA, not the relevant court, and the Rule does not say anything about service on other counsel/parties.)  I infer from mention of depositions and proceedings, that what is involved is a stay of events that require the lawyer to appear somewhere.  Written and document discovery goes ahead without pause, and disclosures.  Does motion work get stayed or does it proceed?  I suppose that practitioners in NC have that sorted out.  Of course the Notice has to say that the attorney has taken measure to protect the interests of their clients during the secure leave, and that it not being designated "for the purpose of interfering with the timely disposition of any proceeding."  Side benefit is okay, just not main or sole purpose? 

As stated above, it looks like a good idea.  I wonder if there are any studies on how it works in practice.  The three week period are relatively short, and do not seem very amenable to significant delays or obstruction.  But 12 weeks is a significantly longer time, particularly as the Rule does not seem to require seriatum sequential week designations, i.e., the 12 weeks can be broken up and not taken as block.  Taken as a block, it is a three-month delay in the case -- or at least a three month stay of proceedings and depositions, which could turn into a significantly longer delay depending on when and how taken.  But every Rule has its possible use for delay or obstruction, and can be abused.  I am not saying it is especially subject to abuse, or that it is subject to much abuse.  Another aspect that I am wondering about is the effect in larger cases.  Plaintiff has a team of five lawyers and Defendant 1 has a team of four lawyers and Defendant 2 has a team of 7 lawyers.  No particular lawyer on any team is actually necessary for any proceeding or deposition, although the clients are likely to have preferences about who does what.  If lawyer A for Plaintiff gives notice of secure weeks, does that stay all proceedings and depositions even though Lawyer A is not necessary for any of the proceedings or depositions?  The Rule seems to say so, but that would be unnecessary delay.  I suppose one would address it to the trial court by motion, but there is nothing in the rule about such motions.  The closest is the provision telling courts to make reasonable accommodation for untimely notices connected to birth or adoption.  That is quite different however.  What happens if secure leave periods are stacked?  Lawyer A takes weeks 1 through 12, then Lawyer B takes the next block, and so on.  Left to the good graces of the Court? 

An interesting experiment.  Worth watching.

Vigili

Janice Dowell and David Sobel have drafted and circulate a kind of petition or statement of action (here and here).  Distilled to its essence, the proposed course of action is this:  academic philosophers should listen to reliable reporters who tell them that someone has engaged in sexual harassment and, in response, remove the accused person from those who are invited for talks, included in invited to contribute to volumes, or invited to conferences.  The statement has a good number of signatories, 190 by my count.  The statement does not endorse or call for some formal process, e.g., an index of forbidden persons (to exaggerate).  It is a bit coy on whether there should be any public comment at all, or if it is just an internal informal activity within departments.  A significant number of people, obviously, think it a good idea and have signed on.  I have not seen any commentary about it, but the idea is not new and there have been discussions on closely related ideas.  I am not so interested here in the text or the details of the statement -- note 4 is problematic, but it hardly matters whether the note is there or not.  I want to talk a little about the idea.  To put it starkly and somewhat unfairly, it seems to be a call for academic vigilantes.  (I said 'somewhat unfairly,' so pause a moment.)

How it is like vigilante justice.  We take the word of a reliable reporter, and acting on that word punish someone.  No formal process of evidence or confrontation, neither adversarial nor inquisitorial.  Someone says and someone else is punished.  To be sure, the punishment is sort of hard to identify: how would one know that one was not invited to a conference for that reason (rather than, say, the organizers dislike the person or think their work poor or just ran out of space).  And, as the statement notes, no one is deprived of a right by the action -- there is no right to attend or participate (at least no legal right in the form of an entitlement).  But everything operates on word of mouth, and without any further process.

How it is not like vigilante justice.  The punishments are relatively small.  No one is publicly names as, no one is physically harmed.  

More important things about the statement.  It fits within lots of other forms of punishment.  There are lots of social networks that impose punishments without any formal process, based on the word of a reliable reporter (or some similar functional role).  Consider social circles, where some are pushed out because another has something against the person, or intra-familial sanctions, or, for some religious groups, expulsion from the flock by social pressure, or shunning.  Or gossip.  The notion that punishment is at work in circumstances other than formal processes is, I think, old enough even in US philosophy circles.  I wrote about it back in the day, or for someone better known (but still a pretty nice person and kind to me), Jean Hampton.  

Something else to note.  It would be good to see a discussion of what sort of effect, if any, adhering to the statement may be expected to have on formal processes.  There is a brief note about contractual obligations of faculty to report harassment, but nothing (that I found) about whether this will (or reasonably can be expected to) strengthen the formal processes.  I think that important for two reasons: part of the justification for the statement of action is that formal processes do not seem to be effective at present and for what sorts of things should we want informal enforcement of social standards rather than formal enforcement.  

So vigili, watchers, not vigilantes.  Except for the cowboy hats, because that is the style now. 

Mr. Fix-It

There is an interview of Justice Gorsuch with the Wall Street Journal, a summary of which is available outside the paywall.  It is mostly one expects: bromides and bland statements that sound good but have no real content.  But that is to be expected.  Justice do not allow themselves (mostly) to talk honestly and frankly about their work or what theories they work with.  I do not quarrel with that diffidence, not today.  But Gorsuch goes on about originalism in constitutional law.  Like so many originalists on the bench, I wonder if he really means any of it.  The talk is always about the meaning being fixed at the time of adoption or ratification.  Like a creature caught in resin, and now available to us as an interesting piece of amber.  It is not, despite my tone, a question of good faith.  I don't see reason to think these folks are dissembling.  It is just that it is very hard to see how it is they get to their conclusions about basic features of the legal order they plainly do support -- equality of race and sex, for example.  Gorsuch says that Dredd Scott was awful because Taney did not find racial status in the Constitution.  The bar on citizenship for free Blacks was just not in the Constitution, and that is why Dredd is wrong.  It is valiant, and Gorsuch is far from alone in agile attempts to get Dredd Scott and Plessy and Brown onto the list of defensible orginalist decisions.  I do not see any of the efforts as getting close to success.  These attmept alwsy end up with some story of meaning in which those who adopted the Constitution (or some amendment to it) have little idea of what they are doing.  They don't understand the Constitution they adopted and whose meaning is fixed at that time by their adoption.  It looks like magic.  I am dubious that the meaning of a document at a time could be independent of the use of the language at the time, and use is application.  Concepts are not so bound I think, but the Constitution is not a concept.  It is not a list of concepts, or if it is, then originalism is pretty thin gruel, or more accurately, pretty dirty water.  I know it is a bit of recurring roundof complaints on the general topic -- the history if poorly done and too often wrong, there is no account of how the entire thing does not change when amended, there is no account of how it is one takes an oath to uphold something the person cannot understand by reading but has to have a special legal history (which is fake history), how it makes nonsense of the Constitution as political foundation, it is a sort of idolatry of law and lawyers, and on goes the list.  It is, in the end, for me, that if the Constitution is not living it really is a relic and the reliquary is in the courthouse.