Ciceronian Review

Creative Dissent

From the dissent, by Judge Tymkovich, in 303 Creative:

It is important to understand from the outset that Ms. Smith and Colorado agree that she will serve anyone, regardless of protected class status. In the district court, both she and Colorado stipulated that: (1) Ms. Smith is ”willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender”; and (2) Ms. Smith does “not object to and will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites do not violate [her] religious beliefs, as is true for all customers.” Aplt. App. 2+322. Ms. Smith and Colorado also agree that she “will decline any request to design, create, or promote content that: contradicts biblical truth; demeans or disparages others; promotes sexual immorality; supports the destruction of unborn children; incites violence; or promotes any conception of marriage other than marriage between one man and one woman.” Id. At 2-323. And counsel for Ms. Smith confirmed at oral argument that she would represent clients regardless of sexual orientation in creating websites that celebrate opposite-sex weddings. (55-5)

This establishes that there is no discriminatory intent, and that the policies are applied uniformly, i.e., flow from religious belief. And it makes clear that it is her involvement in and expressive action that are the basis for her commitments - the design work is expressive of her, including her religious commitments which do, after all, go to her identity. 

The dissent then makes what I think is the key point. On the majority’s approach, 303 Creative is compelled to create expressive content celebrating same-sex weddings (contrary to religious beliefs) as long as she creates expressive content celebrating opposite-sex weddings (consonant with religious beliefs). Compelled speech, in other words, is what the majority approves of. (55-56) The Supreme Court cases on compelled speech require a different outcome. (56-64) ”A state may not regulate speech itself as a public accommodation under anti-discrimination laws. But CADA does so here, making Ms. Smith’s artistic talents the vehicle for a message anathema to her beliefs.” (69) As CADA by its own terms and as administered by Colorado has exceptions, its application to religious beliefs here clashes with Supreme Court holdings. I think the dissent is right to point to application to other sorts of artistic endeavors, that the majority’s view entails compelled speech in a host of situations where it is not justified, i.e., violates the constitutional order. Islamic artists compelled to provide Zionist murals, Jewish cantors required to perform Catholic services, and so on. (All of these involve someone who is paid for their work, so well within the scope of CADA according to the majority.)

The dissent also makes out a strong case that CADA is not neutral as to religious beliefs and that it involves exemptions that are based on the content of message, e.g., secular reasons for refusal to produce expressive content are accorded more consideration than are religious reasons. This decision puts the Tenth Circuit into conflict with the Eighth Circuit. There is hope that the Supreme Court will take up this case and sort out at least some of the boundaries for interaction between the First Amendment and anti-discrimination statutes.

A final few small points. The majority downplays the import of the holding of the Supreme Court in Masterpiece Cakeshop, brushing aside the religious bigotry of the record as found by that Court. It is a little troubling that the majority is not concerned that, on remand to Colorado, one of the commissioners asserts that the remarks noted with disapproval by the Supreme Court were right, or that counsel for the commission describes religious beliefs as beliefs “termed” sincere religious beliefs. Perhaps not enough to vitiate the decision-making, but also not the language of people intent on playing an unbiased adjudicatory role. The beliefs are not “termed”, they are religious beliefs and should be treated as such. Just so it would be an improvement if the majority here (and other courts) would stop using quotation marks around sincere religious beliefs and religious belief -- it signals a lack of sincerity by the courts, that they hold the beliefs as sincere religious beliefs in name only, as window-dressing.

An I For An I

In deciding Fulton the Supreme Court sidestepped both the question of whether to overrule Smith and how far accommodation of religious beliefs in conflict with anti-discrimination policies may go. In summary, the Supreme Court found that the Philadelphia policies and laws were not of general application, because they provided for exceptions, and so the requirements of Smith had not been met and the case could be decided without addressing the standing of Smith.  Catholic Social Services won, at least for the moment.  The litigation is likely to continue in another form, as one response Philadelphia may make is to amend the relevant statutes and policies to eliminate exceptions, thereby curing the lack of general applicabiity of the laws.  That route would result in another suit and the Supreme Court facing directly whether to preserve or overrule Smith.  A reason not to go that route is that there are already three Justices prepared to overrule Smith, and another 2 or more thinking about overruling Smith.  My impression is that, when the question comes to the Supreme Court, Smith will be overruled. Philadelphia then ought to take the loss and let others litigate the status of Smith. The result in Fulton surprised me.  I thought that the Court would both address Smith and either find for, or suggest a method of analysis favorable to, Catholic Social Services. That did not happen, obviously, but there is writing on the wall. 

The ACA decision (California v. Texas) took up most of the commentary on the decisions handed down Monday.  That seemed to me an easier case, indeed, one that would not have made it to the Supreme Court had the lower courts not be so ideological.  The technical nature of Fulton also helped lower its profile, but the problems the case presented are not going away.  The conflict between religious belief and anti-discrimination laws and regulations is not solved.  The apparent commitments of a majority of the Supreme Court look to me to invite further litigation, that is, the Court will overrule Smith and will try to work out means by which there will be greater accommodation of religious views as exempted, to a limited but real degree, from anti-discrimination law.  Stay with CSS as an example.  It is not a simple anti-gay bias that is at work.  CSS serves unmarried gay men and lesbians along with their heterosexual counterparts.  (So the Supreme Court says anyway.). CSS draws a line only between married same-sex and married different-sex couples.  Married couples is the locus of conflict here.  CSS has religious commitments concerning the nature of marriage that entail that preclude treating same-sex marriages as equal with different-sex marriages.  But as it willing serves unmarried persons of various sexual orientations, it is not really true that it is excluding or denigrating gay men or lesbians.  If the analysis of Bostock gets applied that fact may not matter because denial of service to same-sex married couples would seem to be in virtue of sexual orientation of the married couple.  But Bostock does not yield a clean answer because it is, after all, just within the set of married couples that different treatment arises.  I.e., it is not solely sexual orientation that matters, as was the case in Bostock. 

For many, any exemption would be anathema, i.e., any exemption will denigrate gay and lesbian married couples, and so gay and lesbian persons.  They would be an affront to their identities.  And the absence of any exemption denigrates the adherents to the Church.  CSS is not a business; it is part of the religious practice and mission of the Church and its members.  Forcing them to abandon the mission denigrates the importance of religious identity, denigrates beliefs fundamental to identity.  Which I carries the day?  I am not at all certain.  Tentatively, my thought is that the accommodation and exemptions is the better route.  In Philadelphia, there are 21 or 22 other agencies involved in offering credentialing to prospective foster parents.  I think all of the other agencies work with same-sex married couples, so there are lots of alternatives to CSS, and its presence has no material effect reducing opportunities for same-sex couples.  Certainly the continued presence of CSS doe snot impose an undue burden on prospective same-sex married couples with to become foster parents.  Permissible obstacles to abortion are higher.  Pharmacists, who are engaged in business, are able to opt out of service involving contraceptives.  These too involve rights grounded in the Constitution, and yet exemptions and accommodations are to many quite acceptable.  Tentative thoughts.

It Is Everything

Prof. Fraser's argument is, in part, that there are interesting and serious losses when literature is dominated by white men, insights are lost (or never really offered).  (As already noted, it is hard to credit the white part unless the discussion is just of the UK or the USA.  I rather doubt white men are dominate in the literary production and consumption in China, India, Japan, etc.)  Her observation is, I think, correct.  A wide range of sources is more likely to generate information - here, expressions of and insights of a wider variety of people or characters.  I have found that true for myself, which is, to be honest, not much in the way of evidence.  

Still, it is not clear why that is an argument for dominance being an injustice.  An epistemological shortcoming, problem, deficiency, I agree.  We do better with a wider range of sources (all else being equal), and so there is, on this basis good reason to read a variety of authors, and authors with a variety of backgrounds and identities.  For convenience, we can rely on broad categories, as we do often in a variety of contexts.  So more women writers, and more writers (for folks like me) from other parts pf the world, and various social and economic classes.  But am I committing an injustice if I do not widen my reading?  Assume the questions from the prior post and move now to the question of what the injustice is or would be.  I think I need to find something that is not merely the instantiation in the production of literature of the general social and economic structure.  I do not think Prof. Fraser is arguing that the kind of late capitalism we are living in the US and UK is unjust -- well, maybe she is but focusing on literature if a peculiar way to go about it.  A change in this aspect of the economic world is not likely to have the right kinds of impact to alter the wider and more robust other areas of the economic order.  It is far stretch from more women writers to adequate child care and improved economic and social equality broadly.  One might make that sort of argument about integration of the upper reaches of corporate worlds, although I doubt it matters greatly that the demographics of exploitation alter.  Maybe, but even so assuming does not do much for the issue here.  It could be that Prof. Fraser is using the literary world as an example, except she never says that.

What sort of injustice is it that Prof. Fraser identifies?  Epistemic failures are moral failures?  Not doing the best one can with respect to imaginative empathy with others is a problem of justice?  I am stumped here.  I think a significant part of the reason is that I have difficulty with the notion that everything is a moral issue.  That disparities of every kind are problems for morality and/or justice.  Failing to fairly consider a manuscript because of demographic features of the author is sometimes a question of injustice.  But it is not always.  I can see a failure to fairly consider a manuscript for a book on modal logic from someone who lacks even a high school diploma would be a disappointment to the author, but, given ordinary constraints on time and resources, not an injustice. 

Duty to Read

Rachel Fraser has published an interesting essay, described at Daily Nous this way: What’s so bad about the literary dominance of white men? The essay (in New Statesman) has a slightly different title: Do We Have A Duty to Read Women Writers?  The second is, I think, better -- more accurate about the essay and a lot more interesting a proposal.  Fraser does not quite conclude that we have such a duty, but doe slay out a case for thinking that there is some injustice in the current state of literary affairs, understanding 'literary affairs' to mean the USA and UK (and maybe the EU?).  She does not say much and cites nothing showing white men dominating literary affairs in other parts of the world, e.g., India, China, Argentina, and so on.One could go on about that sort of oversight or gap, but it is not what I am interested in, which are two topics.  What is a duty to read some set of authors?  How widespread is an inability to name authors who are not men or not white (an opening gambit in the essay)?

A duty to read works by women....is there a duty to read at all?  That caused me to stumble.  When I stopped reading for some months, was I doing something immoral?  Would it matter why I stopped reading?  I suppose if there is such a duty, then, say, loss of eyesight might excuse not reading for a bit (while developing other skills for accessing literary works).  Would a challenging emotional event be sufficient excuse, or just fatigue?  It seems odd that one could a escape a moral by fatigue.  How serious a fatigue would it need to be?  Is the duty to read women at the same time a duty to buy books (or other works) by women from bookshops, etc.?  I mean, new volumes, is the duty one to buy books or read the books, or both?  I think it has to be one of the last two for Fraser because part of her case for a duty is an argument about the economic disparities of men and women authors.  (That part of her argument would apply quite broadly, in support of duties to buy motorcycles designed or manufactured by women (or maybe just sold by women?), clothing designed by women, restaurants owned by women, fly  as a passenger in planes piloted by women.)  My point is that if there is such a duty, it is pretty complicated duty to delineate.

If there is a duty to read works by women, what it call for us to do?  Read just anything written (or published?) by a woman?  Do I have to read Jane Austin or Virginia Woolfe, or is it enough to read Rita Mae Brown or Donna Leon?  (The economic part of Fraser's argument suggests that Austin and Woolfe are not in the game because no money flows to them from book sales.) 

I do not think, however, that there is a duty to read nor a duty to read literature by women.  I do not think there is a duty to buy art, or to listen to music (or particular sorts of music), or a duty to dance for that matter.  I do not have to attach duties to these activities to think them valuable or to think that they deserve social support, including state support.

"Sorry" Is Not Enough

Had the rally and invasion of the Capital been by a predominantly African-American crowd, there would have been, I believe, much greater and more effective police protection of the building and those within.  And a more violent response from the police.  Had the rally and invasion of the Capital been by a predominantly liberal or left-wing crowd, there would have been, I believe, much greater and more effective police protection of the building and those within.  And a more violent police response.  Race is not the only line to draw here, and seeing additional factors does not lessen the import of the fact that this crowd was overwhelmingly white; that it was overwhelmingly right-wing is also a part of the story, and should not be forgotten.  The reliance on language encouraging violence and extra-legal conduct is a greater part of the Republican party than elsewhere.  The verbal violence of Gringich is one starting point in that story, and his success within the party leads to this week's failed insurrection.  The thousands were and are part of the local party apparatuses of the Republican party.  It is up to that party to remove them from influence.  The talk of unity and so on is to the good, but remains advertising chatter until the Republican party turns against the violence and illegality demonstrated this week.  A single vote will not do.  That Romney was virtually alone for months against Trump means that too much of the party is intertwined with Trump's cult of illegality and violence and unifocal drive for power.

Part of what needs to be done is to reject local leadership like that of the head of the Chicago Police Union.  An apology for minimizing and excusing the events at the Capital seems to me inadequate.  Catanzara should not be head of the union.  Defending violent felonies, which is what he did, can't be reconciled with his position as the leader of a police union.  The Senators and Representatives who condoned the attack -- which is just what the votes objecting to the Electors fo Arizona and Pennsylvania, etc. -- should have no place in a national party.   

The pathetic performance of all of the security agencies and leaders shows that there is a need to reorganize and reassign, and fire, a good number of agencies and persons.  It was plain from the news reports in advance of the rally that violence should be expected, that there was an intent to attack the Capital.  Yet too few officers, no presence outside the building, no National Guard, and so on.  The Capital deserves at least the defense of a courthouse in Portland.  But it got very little. 

Over and over violence by Trump's supporters was excused and explained away.  Certainly by Republicans and conservatives.  Also by police and prosecutors, and by judges.  Courts too excused violence by right-wingers.  From little things, like the Trump bodyguard who assaulted a protester without suffering any punishment, to crowds encouraged to rough of and attack protestors, to that disgrace to the Army, Flynn. 

Change the politics, change the race, there would not have been an invasion of the Capital.  But then, there have not been calls and planning by BLM or left and liberal groups to attack the Capital. 

Distance

The issues of (meaning about and related to) immigration and refugees continues, obviously, to bedevil the EU and USA, and Australia, and so on.  For many, the presence of immigrants and refugees calls for theories of moralitry and politics that extends protection to these groups.  Countries are not the sort of thing which can justifiably exclude newcomers as it chooses, but must find ways to accommodate and protect refugees.  The problems are pressing because the numbers are large.  An common idea is that the only status that really matters is that of being human beings.  It is not only cold or heartless, but immoral or evil not accommodate refugees in whatever numbers, to integrate into society.  Crooked Timber, for example, has posts along these lines with some regularity. It does not really matter where one is from, where born, etc., one's claims on a society, once one is present or sufficiently near, are the same for all within the circle, the physical circle. It is an arena in which the notions of right are to be grounded in being human.  The others, they do not matter as much or not much at all.

Distance is in a curious role in these lines of thought.  One the one hand, place is not important.  That this one has been in a place always gives no moral advantage over that one who has only just come seeking entry.  It is curious that the physical distance of various people governs the moral and political relations. Those near at hand, refugees, have greater call on concern and resources than those far away, those still in the place the others fled.  No claim that latter are better off than the former, or that the former are more virtuous than the latter.  Maybe more deserving, but it seems odd that desert would tie top the distance traveled.  Distance traveled hardly seems a morally compelling category.  But how else to distinguish the former from the latter?  On the other hand, social distance is to be ignored.  That those at hand, have limited social connection to those already present is wholly discounted.

Perhaps there is something to Hume's account. 

 

Forstater

The judgment against Forstater received a lot of coverage.  In the news versions, Forstater lost her job for holding a gender critical view, that is, sees sex as largely biology and women as adult females, for holding the view that trans women are entitled to and should receive appropriate protections and treatment but are not entitled to displace protections for cis women (or women for Forstater).  See, for example, this and this.  There is also lots of political commentary on the decision.  For example, this.  I thought I would read the judgment because reports of judgments and court decision in the US of US legal systems are very often inaccurate, and often do not even state the court's decisions, providing instead summaries of comments on the decision.  Also, the UK system is different from the US systems.  Plus, it is an employment decision and that is, or can be, a world of it own in law.

A couple of caveats:  I do not know much about the structure of the UK legal system and am not sure I read the judgment correctly.  Even the most salient legal standard is more than a bit odd sounding to me.  If that so for a lawyer, what might it be for reporters?

First, Forstater was not fired.  Her contract was not renewed.  That is a quite different situation from being fired.  Second, the case seemed to me to be about tweets. (There was also a letter to her MP. (¶28.)) By which I mean what the Judge decided was based on his analysis of Forstater's remarks on Twitter, not on any other conduct.  She did not, as I read the decision, do anything else; she did not insult client, deny them service, provide lesser services or lower quality services to clients, denigrate clients, etc.  The central question was whether Forstater's views regarding trans women and trans men was a "philosophical belief" within the meaning of the European Convention and Human Rights Act.  To qualify as a philosophical belief (and so be protected expression, as I understand it): (1) the belief must be genuine, (2) it must be a belief and not an opinion or viewpoint based on the present state of information, (3) it must be about a weighty and substantial aspect of human life and behaviour, (4) it must be minimally cogent, serious, cohesive, and important, and (5) must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.  (There are some other legal issues, e.g., defining harassment, but I think them secondary and will not spend time on them.)

The core analysis is at ¶¶ 74-93, especially 90 to 93.  What the Judge seems to me to conclude is that, while Forstater is free to campaign against the proposed revisions to the Gender Recognition Act and free to advocate for spaces exclusive to natal women, her view that sex is immutable is not protected and she may not describe trans women as men or trans men as women.  Expressing that view is not protected.  In other words, although Forstater thought that there was no legal compulsion to use the pronouns chosen by one's interlocutor (¶91), she is wrong.  Her offense, then, is that "She positively believes that they [trans women] are men; and she will say so whenever she wishes."  ¶93.  So, in the end, Forstater's belief is not a philosophical belief because it fails condition (5): it is not worthy of respect in a democratic society because it is not compatible with human dignity and conflicts with the fundamental rights of others.  (There is a peculiar passage where the Judge says that Forstater refuses to address people consistent with their Gender Recognition Certificate - 41.) 

One quick note: although the Judge implies that Forstater refuses to accept gender changes in communications with others, e.g., refuses to address trans men as men or trans women as women, that is not what the cited evidence shows.  What it does show is that she thinks that she thinks such address is matter of politeness and not being rude, but is not a legal requirement.

I wonder if the decision is appealable, and to whom.  There is a good deal of discussion of biology, but I can't quite make out why. Biology helps with information, but opinion about information is excluded from philosophical belief.  Which takes me to the part I have the most difficulty understanding -- what a philosophical belief is.  The condition are: (1) the belief must be genuine, (2) it must be a belief and not an opinion or viewpoint based on the present state of information, (3) it must be about a weighty and substantial aspect of human life and behaviour, (4) it must be minimally cogent, serious, cohesive, and important, and (5) must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.  I understand what (1), (3), and (4) mean, and see the point of (5), but I have difficulty with (2).  I can't figure out what that is supposed to mean, which I suspect is because I do not know the legal materials behind it.  I do not think it is the ordinary meaning of the words, because that makes no sense at all.  How are beliefs differentiated from opinions, don't opinions necessarily involve beliefs and vice versa?  Why would the present state of information be excluded?  Or beliefs about the present state of information, or what inferences are best drawn from the present state of information?  Sorting out (2) is crucial to the decision, but it quite opaque to me (and I would guess to many in the US).  And there is a practical question -- how far would Forstater have to go in the way of round-about expression is to convey her concerns about the proposed revisions to the Gender Recognition Act?  Is the freedom to campaign left her by the Judge a freedom that has sufficient practical value?   

Hobbesian Laws of Nature

The Laws of Nature look like reasoning norms or rational guidance.  That is, if one considered the circumstances entirely or solely as a rational agent, then the Laws of Nature would be conclusions which guide action.  So maybe norms of practical reason.  But norms so far as they are the inevitable result of reasoning about the circumstances.  They cannot just be good advice or rules of thumb.  Those things are not what one would call laws.  Among other reasons, there is nothing wrong or condemnable in ignoring or not following or even transgressing advice or rules of thumb.  It is not immoral to ignore advice or not weigh it properly, at least absent some pretty special conditions.  The conduct might turn out poorly and in that sense one was wrong, but that is not the right sense of wrong.  It is like betting wrong, not like doing something wrong (immoral).  Whatever it is that may be wrong it is not that not adhering to the advice considered alone was wrong.  Really the only wrong is the outcome, whose status does not change depending on whether preceded by advice followed or not. 

The Laws of Nature also do not look like moral laws.  It may be unwise or imprudent to go contrary to one more of the Laws of Nature, but that would not make the conduct immoral. That might work if there is some kind of moral obligation to live well or to flourish, or more closely to the problem, a moral obligation to follow reason.  But that sort of obligation is obscure.  It cannot be that poor reasoners are by that immoral persons.  I fail statistics so I am evil or vicious? 

The Laws of Nature look much more to me to be rules of reasoning, and if moral laws then moral laws derivative from or based on demands of rationality.  It all looks, again, that poor reasoning is immoral, that failing to see what rationality requires is a moral failing as well as a defect of reasoning. That, I think, cannot be right.  Not being any good at understanding statistics is not a moral failing or a character defect.  Is there some line dividing forms of rationality or forms of reasoning so that some reasoning about circumstances is especially normative or somehow grounds or constitutes moral norms and others are not?

What would be wrong (!) in leaving the Laws of Nature as rules of reasoning about the human condition, or, as I prefer, circumstances? 
 

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.

     

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.