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.

Modi

India is in trouble.  It is about to adopt an immigration law directly and incontestably aimed at its Muslim population.  The proposed law provides for immigration of persons who are of a religion other than Muslim.  Hindus, of course, Buddhists, Christians, etc., are fine, but Muslims need not apply.  It is a long-held aim of BJP, politely described as a Hindu-nationalist party, but really something worse.  It is clear now, as it  has  been for years that the general program is to rid India of Muslims and turn it into a monolithic Hindu state.  This is a loss for democratic regimes.  The unsettling fact is that authoritarian regimes are increasing and increasing in power, economic and military.  India is moving away from the Euro-American models of democratic government, onto the path taken by China.  

This legislative development follows on the Supreme Court decision approving the destruction of a mosque and the utter failure of the government to react to mass riots that resulted in thousands of murdered Muslims.   (Sure, the Court said the government should find some other piece of land somewhere else for the Muslims to build a mosque.  At least no special tax on the Muslims to pay for the Hindu temple.)  The imposition of martial law on Kashmir and suppression of local government and politics is of a piece. 

Sad.

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.

     

Where Did They Come From?

The August 27 NYT had a long story about a revival of interest in reincarnation.  The revival is being led (or advanced?) by psychiatrists, not theologians (according to the NYT).  Apparently the notion of reincarnation offers some therapeutic value to the psychiatrists' patients, “allows you to experience history as yours. It gives you a different sense of what it means to be human.”  I found it somewhat amusing.  It does hark back to the foundations of psychiatry, Freud's infatuation with cocaine, the weird anti-scientific theories, the religious fabulations of it all.  But the piece that kept popping into my head was 'where did all the souls come from?'  Everyone in the article had prior lives as human beings (which is itself pretty odd), and of course all led pretty admirable lives -- he heroic anti-Nazi German, and so on.  No drunks or laze-abouts, all hard working and admirable.  The first oddity, as noted, is that they all claimed prior lives as human beings, and that is a bit odd.  There are far too many people alive now for it to be plausible that they all were human beings before.  There are not enough dead about to fill al the bodies.  Some of them had to come from some other line of biota, or be brand new.  o the souls fissure?  Is there some block of memory from time as other forms of life?  I think it would be very interesting indeed for some of the reincarnated to recall life as a dog or a penguin.  Do they jump across families?  Can one go from the selfless morally great spider to a human being?  Anyway, where did they all come from?  The second oddity was no one seems to have been a sluggard or creep or thief or anything less than admirable the last few times around.  How come?  Is there some memory limitation on bad behavior, or do the bad folk get sent down as it were, to become raccoons or wasps or slime mold?  (It is true that plenty of mammal lines are dying out and some of them could be pushed up the ladder (so to speak) but you still will be pretty short of souls.)  And what do insect souls spend their time on?

Which all leads back to -- psychiatry -- it is no wonder they still lag placebos.      

The View Gets A Little Long and Confused

The NYT ran a review of Christianity: The First Three Thousand Years by D. MacCullough in the Sunday Book Review.  A favorable review, which I won't gainsay as I've not read the book.  The review and the reviewer's views are not quite coherent, however.  Consider this bit from the early portion of the review:

Christianity’s foundational belief is that Jesus was the Son of God, who died and rose again as an atoning sacrifice for the sins of a fallen world. It seems banal even to note this. But guess who did not know it on that epic morning of Resurrection long ago? Those closest to Jesus, the disciples, who, when told of the empty tomb by the women who followed Jesus, were perplexed: what could this mean? Jesus had not adequately prepared them for the central dramatic action of the new salvation history that was to take shape in the wake of his Passion. Read carefully, the Gospels tell the story of the disciples’ working out what a resurrected Messiah might mean, and the conclusions they drew formed the core of the belief system that became Christianity.

Why the initial uncertainty? Because it is vastly more likely that Jesus’ contemporaries expected his imminent return to earth and the inauguration of the kingdom of God — a time, in first-century Jewish thought, that would be marked, among other things, by a final triumph of Israel over its foes and a general resurrection of the dead.

(Emphasis added).  Now compare that to this bit from the end:

To suggest that such supernatural stories are allegorical can be considered a radical position in even the most liberal precincts of the Christian world. But the Bible was not FedExed from heaven, nor did the Lord God of Hosts send a PDF or a link to Scripture. Properly understood — and MacCulloch’s book is a landmark contribution to that understanding — Christianity cannot be seen as a force beyond history, for it was conceived and is practiced according to historical bounds and within human limitations.

The inference which this suggests rather strongly, but does not explicitly draw, is that the allegorical interpretation of Bible passages is not at all what was intended in their composition.  If not allegorical, then absurd.  And so off from reason. 

The example of Christianity and abolition, though, is ultimately a cheering one.

Cheering because it took only about two thousand years for Christianity to repudiate slavery? 

In the Sunday Times, God and evolution get reconciled yet again.  The science writer gives us a few words about his recent book arguing that there is an evolutionary foundation for religious belief.  Contra the title, which says there is a gene for belief in God.  The latter is simply ridiculous.  There is no way at all to get to a genetic foundation, i.e., reproductive advantage, for belief in God.  It is a common conflation - religion and Judeo-Christian monotheism.  Unfortunate as well.  Not only is the conflation intellectually indefensible, it is redolent of a culture myopia so severe as to disqualify anything further from the author.  Even adding in Islam leaves one with a silly view of history.  But Sunday's author is about religious belief, not monotheism.  He offers up a short story about how religious belief might convey some advantage.  It is an interesting thought, but seems not to go very far.  The evidence identified in the article has to do with other things -- an interest in getting high, advantages of high social cohesion.  But there is nothing there, nothing in the article to connect social cohesion with religious belief, or how the propensity to religious belief gets into the genes.  Where is the evidence that the religious survive better or in greater numbers than the non-religious?  That is not something that comes out of archeology.  Where are the examples of the non-religious societies succumbing to the religious?  Anyway, what is the religious here other than causal attributions and limitless magical thinking?  Is it magic that marks religious beliefs? 

In any event, the argument is very bad news for the current religious in this country, at least the folk in the Christian, Judaic, and Islamic traditions.  They all need a free will believing, not a genetic predisposition.  Not so convincing that there is free belief and faith if it is really all  in the genes.

Into the Woods

One of the courses I took with Gary lease involved, albeit as something wholly extracurricular, sacrifice of a ram.  I made a half-hearted effort to locate a description of the course - it would be in the transcripts but could not find them in the one place I looked - so I am stuck with what I recall of the class, and what the aims were.  The course focused on mystery religions; well, religions of the Eastern Mediterranean, at least in my memory.  Lots of texts, being university and a course for credit.  So we read and talked about various religious myths.  Dionysian stuff and some re Cybele.  Apuleius' Metamorphosis (The Golden Ass) was the other thing I remember clearly about the class.  I was taken by the translation (being solidly modern language only, an essentially monolingual, translation was it).  I still have my copy of the book, which I re-read about 12 years ago.  (I think I will dig it out and put it with the stacks of things to be read.)  That book was at the center of the course, which was (in my  mind I again go out of my way to note) about transformation through religious experience and religious experience.  

I thought of the course as focused on trying to make apparent what i was that these older religions gave or provided to the adherents, what experiences drove membership and adherence.  I think that is the right way to approach it.  The view of religious belief as science stories without the science struck and strikes me as wrong.  No one over the age of 10 or 12 could really believe there was some goofy fellow on a mountain throwing lightening bolts at things because he hasn't had a bath in a while.  There was an awful lot of sophisticated technology and construction.  A good many somebodies had to be paying close attention to the world as it was.  It is not matters get  better with the advent of the fish eaters.  Plainly ineffectual causal protections, so something else kept people involved in the religions.  That is the experiences induced.  And that was a part of the course: what was happening during the events?  Of course, can't be re-created with a bunch Christianized and intellectual youngsters at a modern university.  But it does not have to be to go some ways and be useful.  

So, after the close of the class, a bunch joined with Lease, bought a ram, killed it in a sacrifice and ate various bits roasted.  No blood on the face, etc., but it still had a significant emotional impact.  I had never seen an animal killed and butchered (or either) up to that point.  And that was part of the point, to create a  bit of the emotional impact of something there dying immediately.  I can admit to a sort of tourism about it, but not different than the excursions to Christian services of various kinds I had made. Those who select their church by doctrine are few, quite few I think.  (Once you swallow resurrection and an omnipotent omniscient loving God, the choice of whether the Trinity is one or three, and ordination, etc., is not worth bothering about.  Which makes explaining the long religious wars of Europe a bit of s mystery.  (It's my hole and I will dig it just as I like and just as deep.).)

Ah, yes, where.  In the woods.  We hiked out about 20 minutes to a very small clearing.  There were about 10 or 12, about half to three quarters of the class.  And it was spring, so lovely.  

  

Meander

I gave up on the Lincoln/Douglas book.  The writing was not good, and it took far too long to get to any point.  I mention this because I normally finish up non-fiction even when very poorly written.  The aim is usual to learn something and I am more tolerant of bad presentation when there is something I want from the text.  This time, no.  Not that the writing was notably bad -- it wasn't.  Maybe the stack of other books is weighing on me. The standard which led to ending that book prematurely is close to the standard I use for fiction (excepting airports when I am desperate for something, then it is a book in hand is a book read).  As a result of the book, I am thinking of re-reading the LOA volumes of Lincoln writings, or selection anyway.  The fall in quality of speech since Lincoln is scandalous.  When I watched West Wing, it seemed even that made-up land of oratory and posturing could not offer up a moderately well-written speech.  Certainly not the President or McCain.  The point not being about Republicans ("Republicans Make Good Barbie -- Throw One on Today") but about speeches.  Clinton did not give very interesting speeches.  Seems the country is not much interested in oratory, at least outside the church. 

Or maybe a sour mood.  van Inwagen's book, a nice piece of writing, but ultimately a disappointment.  he arguments really came to a very thin couple of reeds, unbound.  Free will and what looks to me a version of compossibility, which ends up being some special pleading or pleading for faith at key points.  Omnipotence that isn't really, and the secret plan. 

Power and Good

I have started on van Inwagen's The Problem of Evil.  Lecture 2 (the book is based on his Gifford Lectures) is about the meaning of God.  van Inwagen is interested in the traditional Abrahamic God of Jews, Christians and Muslims.  Two of the properties of this God are omnipotence and good.  What omnipotence means is pretty hard sorting, which is not going to be done in this book.  God can do anything possible means such stuff as he can lie, which seems an odd ting to say.  I am fine with that decision, as it is certainly a book in itself trying to describe and sort the notions of possibility necessary to make sense of the claim.  God is also good, that is, morally perfect.  That is also weird.  It is weird because it seems to mean that God does and can do only good.  But certainly the world is not under that description.  Van Inwagen tells us that

Suppose, for example, that a human being inflicts pain on others--without consulting them--to produce what is, in his judgment, a greater good.  Many of us would regard this as morally wrong, even if the person happens ot be right about the longterm consequences of the pain he inflicts.  Let us suppose that judgment is correct.  My point is that it does not follow from the correctness of this judgment that it would be wrong of God to inflict pain on human beings -- or angels or beasts-- to produce some greater good.

Is it that the wrongness depends on some property of the actor?  That is very odd thing for a theist of his sort to say I think.  It cannot be that A is good because done by God.  That makes the property of moral perfection vacuous.  Moral assessment must be tied to something about the conduct or the effects.  Why then would it matter who did the act?  Surely it is not like some institutional authorization (that leads to A is good because God did it or says so, which cannot be, at least not in this context).  So it looks like it is a claim to the effect that there is (at least) one morality or good for folk like us and a different morality or good for other things.  God is under a different set of rules, so to speak.  That won't work either.  There is no sense to the claim that God is morally perfect but we have no idea what morality he is perfect in.  If it is not the morality we work under, then the property of moral perfection is useless.  It really is like saying God is not subject to morality.  I suppose van Inwagen is saying that there is no formal entailment from the claim that state of affairs or conduct A is immoral for human beings to A is immoral with respect to God.  Maybe.  Why is that any help?  If the entailment conditions are tight, one can get the same result by changing the person involved, and there is no God part at all.  If the entailment is weak enough to do some work in this world, it seems to be a commitment to the view that morality is different for different kinds of things.  That is a view that would seem to be very difficult to square up with theological context.

So it is a fun book so far.