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.

Discomforting

The US Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid yesterday.  The case was a challenge to the procedures used in the last election in Pennsylvania.  It was, more recently, a vehicle to test the latest Republican theory on how to constraint voting, a sort of state legislative supremacy view of election rules.  With the election over and no likelihood that a decision in the case would have any effect on the electoral outcome, there was a genuine question of mootness, and that is the basis for denial.  There were dissents by Thomas and Alito.  The key point in Thomas' dissent was that the problem raised by the case is not going away, and that it will return at a point hen the briefing and consideration will be quite compressed.  It makes sense for all to address the question about regulation of election now when there is time and quiet to do so. 

I think Thomas and his co-dissenters are more interested in getting a case that will enable them to restrict voting, and see this as a respectable means to achieve that end (because it sounds like a neutral judicial effort), whatever the outcome.  Take away a potential shadow on a next election.  In other words, the dissents seem to me disingenuous.  But, the dissenters have a good point.  It does make more sense to solve the problem now rather than wait for the contested election that makes resolution crucial, and highly political.  It leaves me in the unexpected and somewhat uncomfortable position of reluctantly agreeing with Thomas -- the only reason I see for denial is the thin hope that several justices on the way out right side of the bench will retire or die or be disabled in the next couple of years.  In addition to very poor odds, there is something at best unseemly and perhaps worse, in having such a hope.

Well, then, fall back to the mantra - the Supreme Court is a super legislature, and all courts are reduced politics.  The oath is a lie or we give allegiance to an unjust state. 

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. 

 

Impeachment Is Not About Crime

Some law faculty talk about impeachment as requiring the commission of a crime, with the problem being exactly which crimes might serve as the grounds for impeachment.  Blackmon, for example, reject the idea that there should be any basis other than violation of the criminal code (and only some select part of the criminal code) as grounds for impeachment.  His concern is that impeachment based on abuse of power fails to give notice to the President of what might be an impeachable offense, and unduly politicizes impeachment.  The latter argument is, I think, disposed of by Mark Graber.  Graber argues that much of the history of impeachment proceedings (at least for political offices) was long ago fully politicized.  The votes in the House and Senate regarding Jackson, Nixon, Clinton were highly partisan.  That is not changing.  The process, like almost everything about the Constitution has tenuous connection to the conception of the Constitution and its processes when it was adopted.  Politics is there to stay. 

Blackmon's argument is that  impeachment should be grounded in the criminal law so that the President has adequate notice of what conduct may be impeachable misconduct.  That seems to me a somewhat odd approach to impeachment.  Two suggestions:  the criminal law approach advocated by Blackmon means that he thinks that impeachment is improper (and inappropriate to consider) when a President does any of the following sorts of things, none of which are (I think) crimes:  directs the FBI to investigate a political opponent; not to enforce particular laws or not to enforce laws which may benefit or protect some group or person out of favor; redirect funds intended for the welfare or education of a particular state to other uses, depriving the state of those funds, refusing to declare emergencies in states dominated by political opponents; directing the IRS not to investigate or prosecute friends or allies; impound the passports of disfavored persons; refuse to enforce environmental or health standards; directs the Justice Department never to investigate her or himself or family; and so on.  That such conduct might violate some statute does not make it a crime. Why would conduct of this sort not be enough for impeachment?  I see nothing in Blackmon, or Turley, or their colleagues that explains why perjury in a private lawsuit is impeachable but massive abuse such as the preceding is not. Blackmon says that there is not enough or clear enough notice.  I find that deployment a little disingenuous.  I have a test for such arguments.  Is there less here than would satisfy an indictment for distribution of illegal drugs, or less than would satisfy for asset seizures?  No.  What is at work is that as social standing rises, so does the standard for enforcement, a tendency I do not care for.  Or, to engage more directly, the idea that an impeachment based on abuse of authority would strike out of the blue is hard to believe.  That the President would feel inhibited and frightened to act because he or she might be impeached for abuse of authority is, in a word, ridiculous.  There is no evidence at all for such a view. 

Imagine what takes little imagination - an executive fully devoted to a strong unitary executive theory (in which the President controls all executive activities exclusively) along with a strong departmentalism so that the executive may act on its own views of the Constitution along with a particularist theory of standing and remedies so that each remedy in a lawsuit must be for just the individual plaintiff (so no nationwide class actions, no nationwide injunctions).  Blackmon and Turley would leave us with nothing in such circumstances but to wait for the expiration of the tyrant.         

Turlock - Sort of Something

I watched the opening statements of the law professors before the Judiciary Committee.  The oral presentation of Turlock was a bit odd it seemed to me.  I was not sure I understood what his position was.  I thought is a bit too informal for the context (I think Karlan made the same sort of error -- testimony is not a classroom lecture.)  Was he saying that there was no basis in the Intelligence Committee Report for impeachment?  Or was it that the effort now was premature, that further testimony and evidence would make the case better, or that it was all a waste of time? I downloaded the written testimony and have made it about half way through. It looks like he was saying two main things.  That there is a possibility that an abuse of office or abuse of power article could be presented, but not yet, and that the other proposed grounds for impeachment are not adequate for an impeachment because the acts do not clearly and incontrovertibly violate existing criminal law.

The abuse of power claim is not made out because Congress withdrew its subpoenas too quickly and has not pushed the subpoena issues before the courts.  If Congress stays with the subpoenas, the courts may rule for it and then documents and witnesses will be made available.  From them, a case may be made.  I think part of that is right.  I agree that Congress should push its subpoenas, should not have withdrawn the subpoenas for various administration and former administration witnesses to appear, and should have continued the fights for documents.  In some ways, that set of battles is more important than the impeachment because it is the way to get more clarity about the oversight powers and investigative powers of Congress.  I think letting them go is a long-term error, or loss.  Trump's and Barr's views are wrong and dangerous, they embody a contempt for democratic processes and contempt for Congress.  But that is all I can agree with in Turlock.  The rest of his argument, which is by far the greater part, seems wrong and wrong-headed.

The details are not what I want to discuss.  I think he is wrong on what the evidence is and means, but the underlying approach is where he goes awry.  Turlock admits that at the time of the adoption of the impeachment provisions, there was no federal criminal statute, or even yet a federal common law of crime.  English law, which is the general source for the provision was largely common law.  Common law crime is not definitionally sharp.  There are cases, usually not using exactly the same definitions or interpretations.  If the impeachment provision of high crimes and misdemeanors is to be understood relative to criminal law, then, for Turlock, we look to the definitions in the current criminal code.  I don't think that makes sense.  The phrase has no special meaning in the US criminal code.  There is no section High Crimes or High Misdemeanors.  The understandings of that past eera are not precise and do not build on careful definitions.  For example, is there evidence of bribery in Trump's conduct?  Within the understanding of then or of now?  If we look to current federal criminal law, the answer is that it is close and there may not be -- that is what all the talk of quid pro quo is about.  The Supreme Court decided a few years ago that the federal crime requires a specific quid pro quo -- lavish gifts in return for favors is not really enough.  But it was for decades before that decision.  So, if Turlock wants us to care about the history of impeachment processes and cases, and the history of enactment of the provision, why does he want us to abandon the historical work when it comes to understanding what crimes and misdemeanors count?  

As to the 1half of the piopulation1 will be mad if the impeachment proceeds is inane.  No one will be mad if the impeachment process stops now? Or does that half not matter?  Was half the population upset about the proceedings against Nixon?  Well, up to the day he resigned it was pretty close to half who stood with him.

 

 

Plain as Day

While the Supreme Court considers whether anti-gay discrimination and anti-trans discrimination is (or is not) already barred by statute, we can pause over the argument.  (My guess is that the Court will find the statute encompasses those protections, a conclusion that is more from the tone of the questions than the substance.  Listening made a difference.)  One line of argument, the centerpiece of the Petitioners' arguments was that the plain language of the statute covered anti-gay or anti-trans discrimination because such discrimination is built on the sex of the plaintiff.  The idea is that one determines whether the discrimination is based on sex by changing the sex of the plaintiff  and looking at what the expected conduct would have been.  So, discrimination against a gay man dating a gay man is discrimination on the basis of sex because there would be no problem with the plaintiff dating a woman.  And that is the plain meaning of the text. 

The plain meaning of the text, on this approach, is at least sometimes not plain.  In the instant case, it is not controversial that Congress and the President at the time would not have believed, and in fact did not believe, that the statute barred anti-gay discrimination or anti-trans discrimination.  That is to say that the plain meaning at the time of enactment did not encompass that discriminatory conduct (but it does now).  Plain meaning seems to mean the meaning that virtually everyone accepts for the phrase or words.  So the meaning of the statute's plain language goes so far as the meaning accepted by more or less everyone.  At the time of enactment?  Well, the Supreme Court is gung-ho on originalism, at least for the Constitution.  And in recent years has talked a bit along the lines of applying originalism to statutory interpretation as well.  (Not all that salient here, but I do not see any convincing story about why the Constitution would be more sunk in the stone of enactment than a statute, but that is for another day.)  If there is an originalism equivalent for statutes, then the argument about plain meaning of the anti-discrimination statute should fail.  Before the Supreme Court, however, this sort of analysis was shunted off to legislative history, as some sort of alternative to plain text.  Perhaps, although I admit that I that attitude is wrong.  But, to get back to the point, the import of the Supreme Court adopting the argument that the statute encompasses anti-gay discrimination is that the plain meaning of the text is not the plain meaning of the text except at some particular time, evolving over time into new meanings.  Assuming one thinks that the meaning of words and phrases depends on the use and understanding of the linguistic community.  Not only though.  One could take the plain meaning to be clear reference to plain meaning of the concepts, and the plain meaning then changes over time because the understanding of the (unchanged) concepts changes over time.

I think one conclusion from these considerations is that realism is right. 

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?