Napoleon famously said, "Never interrupt your enemy when he is making a mistake." I am just going to sit here quietly and watch the Republican Party self-destruct. My guess is Nancy Pelosi has advised her caucus to do the same. What with the world going to hell in a hand basket, there is not much fun these days so you have to take the amusement where you find it.
Professor Wolff, I would be interested in knowing what you think about Jamie Bouie's recent opinion piece in the New York Times, "Before He Takes On ‘Woke Capitalism,’ Ron DeSantis Should Read His Karl Marx."
ReplyDeleteIt can be found here:
https://www.nytimes.com/2022/12/02/opinion/mccarthy-desantis-capitalism.html
David, Bouie is quite correct, of course. I have had a lot to say in various places about the development of capitalism since Marx's day and Lord knows there is a great deal more to be said, but the central point is absolutely correct. Capitalism is the most revolutionary social formation in the history of human affairs and continually alters the world in which we struggle to advance the interests of those with whom we have made common cause. I have just finished teaching my last course, I suspect, and most of it was devoted to the thought of Marx. I hope there are young people who carry that struggle forward in the decades to come.
ReplyDelete"I hope there are young people who carry that struggle forward in the decades to come."
ReplyDeleteI'm more optimistic about this than I was a few years ago. Bernie's success was a turning point in my mind. Prof. Leiter has also posted some pieces about the percentages of young people identifying/sympathizing with socialism and opposed to capitalism, and again, I found the information a welcome surprise.
I can't quite find the Leiter posts I had in mind, but this article comes from Gallup, 2019:
Young adults mirror the country as a whole in having a range of reactions to the terms commonly used to describe aspects of the U.S. economic system. Small business, entrepreneurs and free enterprise earn positive reactions from large majorities of all age groups, while fewer view big business and capitalism favorably. Where young adults differ from older generations is their particularly low ratings of capitalism and big business combined with their relatively high rating of socialism. Taken together, their different reactions to the terms suggest that young adults favor Americans' basic economic freedoms but have heightened concerns about the power that accrues as companies grow, and that younger generations are more comfortable with using government to check that power.
In other news... I thought I'd be able to say that my outstanding student loan debt was wiped away (I still have the e-mail from the Department of Education with the initial announcement), but now...? Wish me luck as our friends on the SCOTUS weigh in, LOL. :/
Just as I said in a prior comment. The Roosevelt/Taft comparison is timely.
ReplyDeletehttps://www.cnn.com/2022/12/04/politics/trump-teddy-roosevelt-parallels-blake-cec/index.html
I don't see very many parallels between Trump and TR, nor all that many between Trump and Wm Howard Taft. Haven't read the CNN column.
ReplyDeleteBtw have been dipping into the Logevall bio of JFK that I mentioned earlier. V readable. How many people now know the details of the 1952 Massachusetts Senate race? I didn't.
I remember reading about the 1952 Senate race between Kennedy and Lodge in Ted White’s The Making Of The President 1960. The Lodges were the established Protestant dynasty in Massachusetts,
ReplyDeleteWhere the Lowells speak only to Cabots,
And the Cabots speak only to God.
Kennedy’s campaign was financed by his father and managed by his brother, Robert. John Kennedy wanted to avenge Henry Cabot’s grandfather’s defeat of Kennedy’s grandfather, Boston mayor John Fitzgerald. He succeeded.
The author of the CNN article does see parallels between Teddy Roosevelt and Trump.
One thing about that mid 20th c. political scene is the presence of the now virtually extinct northeastern Republicans. The two Mass. Senators at the time were Lodge and Leverett Saltonstall.
ReplyDelete(P.s. Teddy White. He never went by Ted afaik.)
LFC.
ReplyDeleteI didn't know him well enough to call him Teddy.
Then you should call him Theodore.
ReplyDeleteMarc,
ReplyDeleteIf you read that book, the Making of the President 1960, more or less when it first came out, in 1961, as I did and you remember as much as you say you do above, you have a remarkable memory.
I read it more or less when it first came out and all I recall is that I read it. Even if you read it a few years later, say, in 1965, your memory is impressive.
Perhaps we should also consider the parallels with the 1860, 1948 and 1968 elections. Also, as he was only 60 in 1919 and had he not done his rather stupid Amazon adventure, TR would have been a factor in the 1920 election.
ReplyDeleteThe best outcome would be a '48/'68 - like split that takes a few of the worst states and the Republican Party out of the equation for awhile.
s. wallerstein,
ReplyDeleteI read the Making Of The President 1960 around 1968. I then read the 1964 and 1968 versions. I read the last of the series, Making Of The President 1972 around 1974. And yes, I have a pretty good memory. It comes in handy as a litigator, where you have to be able to recall the facts of your client’s case, and the applicable law, in court at the drop of a pin. I do have lapses, however, like this week-end, when I could not remember the name of U of M’s tight end, who has been hospitalized and could not play against Purdue.
Marc,
ReplyDeleteNot being able to remember the name of the tight end is a completely different thing: that's ageing. I now can forget the name of the author of a book I read yesterday. I note the name's of everyone's children and of the people who work in this building in a notebook because I can forget anything these days.
An entirely different phenomenon is remembering facts from a book you read in 1968. When I was, say, 24, I had already forgotten what I read in the Making of the President 1960, which I read at around age 16. That is, even when I was young, my memory of what I read was never all that great. However, the stuff I learned at age 16 which I did remember at age 24, I still remember them and probably will remember them until I die unless I go completely senile. My memory things people said to me, if I was paying attention which is not always the case, is better than my memory what I read.
Rather than chiming in on the memory thing (as I could probably), wouldn't it be refreshing and (literally) rejuvenating to have more 20-somethings start to comment on this blog? Prob not going to happen, but might be interesting if it did.
ReplyDeleteThey're prob all on Instagram or TikTok or WhatsApp or Twitter or who knows what.
ReplyDeleteHow much I remember from reading depends on various factors, including the book's quality and how much of an impact it had on me.
ReplyDeleteFor example, one of the best life-and-times biographies I've ever read is Ronald Steel's _Walter Lippmann and the American Century_, which I read around 1981. Definitely still remember specific things from it.
Ray Monk's Wittgenstein: the Duty of Genius.
ReplyDeleteI must have read that 30 years ago and I remember many details. The guy was quite a character!!!
On 60 Minutes tonight, Bill Whittaker interviewed French President Emmanuel Macron, who visited the White House this past week. Macron was critical of Joe Biden’s support for the Inflation Reduction Act, one of whose objectives is to subsidize green industries in the U.S. Macron claimed that this objective has an adverse effect on industry in Europe. But he acknowledged that Europe does not produce much of is energy, but rather purchases it from Russia. So, can anyone explain to me (LFC?) how the Inflation Reduction Act hurts Europe?
ReplyDeleteYou can watch the interview here:
https://www.cbs.com/shows/video/0yINBvkpcAo386gdPEccs2YtZhhcKe6g/
Marc,
ReplyDeleteMy guess (and it's just a guess) is that subsidies from the US govt for, say, wind turbine producers or solar panel producers in the US make it comparatively less expensive for these things to be produced domestically, in turn putting, say, European wind turbine producers who want to export that technology to the US at a disadvantage. In other words what's at issue here is not energy itself (fossil fuels or natural gas or electricity) but rather green technology and the prospects for industries that make it. That's my best guess. Subsidies are frequently controversial in this way because they affect trade.
P.s. Subsidies for electric car production and associated stuff/infrastructure are probably also involved.
ReplyDeleteNotwithstanding multinational corporations and all that, a fair amount of ec. competition is still "national" or geographic; see e.g. the past competition between Boeing (US) and Airbus (EU) as just one example.
ReplyDeleteLFC,
ReplyDeleteThat makes sense. Thank you for the explanation. Bill Whittaker apparently understood what Macron was getting at, since he did not ask him for an explanation.
Marc
ReplyDeleteSure, no problem.
If someone holds a gun to my head and makes me repeat the statement, “I am homosexual, and enjoy sexual relations with men,” we would all know that the statement (though it may be) is not necessarily true and would discount it. It would constitute “compelled speech.” In the context of the use/mention distinction, am I “using” the words, or just mentioning them?
ReplyDeleteWhat if the gun is being held by a police officer, and the statement I am being forced to state is anti-Semitic, like, “I believe Judaism is a mongrel religion that has no legitimate basis.” Again, a case of compelled speech, but now an agent of the State is forcing me to make the statement, and it intersects with my religion. In the context of the use/mention distinction, since I am in fact Jewish, am I “using” the words, i.e., do they actually reflect what I believe, or am I only mentioning the words?
This is the issue before the Supreme Court today, which is holding oral arguments regarding a graphic designer from Colorado who wants to start a website business to create and sell graphics celebratory of weddings, but she does not want to accept business from gay couples, because she believes gay marriage is sinful. So, which of the above to examples is this more like?
Clearly, it is more like the second. Although the graphic designer is not being forced to speak certain words, she is being forced to use her hands and brain to create celebratory messages that she does not agree with, and which violate her religious beliefs. But since she does not really believe the messages, isn’t it the case that she is not “using” the words, she is only mentioning them? If she is not really using the words, why can’t the State force her to mention them?
Well, the Supreme Court has already decided this. In West Virginia v. Barnette, 319 U.S. 624 (1942), elementary school children in West Virginia who were Jehovah Witnesses refused to state the Pledge of Allegiance in public school, a pledge required by West Virginia law. It is contrary to the religion of Jehovah Witnesses to pledge allegiance to any secular authority. The Supreme Court held that requiring Jehovah Witness children to recited the Pledge of Allegiance violate their religious freedom under the First Amendment. In the use/mention context, the children were not really being required to use the words of the pledge, only mention them (the use/mention distinction did not really figure in the Court’s analysis), but still, the Court held, government may not compel citizens to utter words against their will. In the Barnette case, the requirement violated freedom of religion. In another case, Wooley v. Maynard (1977), in which the New Hampshire license plates stated, “Live Free Or Die,” a member of the Jehovah Witnesses refused to display the license plate and was charged with a civil infraction. The Supreme Court reversed his conviction on freedom of religion grounds. (In an interesting dissent, Justice Rehnquist, joined by Justice Blackmun, did in fact make a use/mention distinction – he argued that, unlike Barnette, in which compelling the uttering of the words was requiring verbal affirmation of the statement the words were making, requiring placing a license plate on one’s vehicle does not equate to an affirmation of the message on the license plate.)
(Continued)
So, in all likelihood, the graphic designer will prevail. However, the LGBTQ community has a concern that the S. Ct. will use the case as an excuse to pull a Dobbs, and reverse the decision in Obergefell v. Hodges (2015), making it unconstitutional for a State to prohibit gay marriage. Could the Court pull a Dobbs? Well, strictly speaking, No, because the validity of the Obergefell decision is not itself on appeal. The graphic designer, as I understand it, is not challenging the Obergefell decision itself, but only its application to her. Generally speaking, the S. Ct. only addresses issues which have been raised on appeal, not extraneous related issues.
ReplyDeleteBut this does not mean the conservative majority would not use this case as a vehicle to overturn Obergefell – the S. Ct. can pretty much do whatever it wants. As J. Jackson once pointed out, the S. Ct. is not final because it is infallible, it is infallible because it is final. And arguably Obergefell is more vulnerable than Roe v. Wade was, since the decision is not 40 years old. How could the Court frame a Dobbs? By rejecting J. Kennedy’s ruling that gay marriage is protected by the substantive due process aspect of the 14th Amendment, and whether to allow gay marriage is a decision left to the States, not the federal government – just as it held that the right to an abortion is not protected by the 4th or 14th Amendments, and is a decision left to the States.
Post-script:
ReplyDeleteAn article on CNN discussing the case states that in February the Court agreed to review the issue based only on its violation of freedom of speech as State imposed compelled speech, not on religious freedom grounds. So, it is less likely that the Court will overturn Obergefell. In the freedom of speech context, the Obergefell decision would only be subject to challenge on an “as applied” basis – those who do not disagree with the right to gay marriage would not be forced to state something they don’t agree with.
There is a long-ish, informative piece by Amy Howe -- link available at SCOTUSBlog -- detailing the arguments on both sides in this case and also mentioning an amicus brief that proposes a sort of middle-ground holding. I didn't have time to do more than look at the piece quickly, but Howe, who has argued before the Sup Ct and is now a full-time blogger/journalist, is very good.
ReplyDeleteWhile I also think the web designer will likely win here, the presence of a state anti-discrimination statute differentiates the case from Barnette. (I shd note I haven't followed this case and don't know the exact factual setting in which it originally arose.)
ReplyDeleteGenerally speaking, I don't think Obergefell has any free-speech implications. The Court recognized a constitutional right to same-sex marriage, but one still has a First Amendment right to make a speech opposing same-sex marriage, obviously.
ReplyDeleteThis case presents a more focused issue involving the interaction of Colorado's anti-discrimination law with the First Amendment.
LFC,
ReplyDeleteThe fact that the graphic designer case involves Colorado’s anti-discrimination law is irrelevant, and does not distinguish it from Barnette. A statutes which prohibits residents of a State from doing x, requires that they do not-x. In this case, the statute prohibits Colorado businesses from discriminating against Colorado residents based on their sexual orientation by refusing to do business with them. Prohibiting Colorado businesses from refusing to do business with residents based on their sexual orientation equates to requiring them to do business with residents regardless of their sexual orientation, even if this in turn requires that the businesses engage in speech which conveys a message they disagree with. This constitutes compelled speech, just as the West Virginia statute in Barnette compelled recitation of the Pledge of Allegiance. There is no substantive difference.
Post-script:
ReplyDeleteThe real question is where does the speech vs. conduct line fall. I have a friend who is an Evangelical Christian and a professional photographer. He believes that requiring that he provide photographic services at a gay marriage violates his rights. However, taking photographs does not entail engaging in any speech which affirms a message that he disagrees with, and therefore falls on the conduct side of the debate, rather than the speech side. But what if a gay couple insists that he take a photograph of the wedding cake, which states, “Gay marriage rights forever!” I would still maintain that photographing a message does not constitute an endorsement of the message. The same would apply to a wedding gown designer who refuses to make a wedding dress for a lesbian couple. By contrast, I believe a wedding cake designer who refuses to make the cake with the “Gay marriage rights forever!” falls on the speech side, but this is a close call.
I've just been listening to some of the oral argument.
ReplyDeleteI think some of the key questions here involve 1) what is speech, 2) who qualifies as a speaker, 3) when, if ever, can a business that says it's open to the public refuse to serve people and on what basis?
The Colorado anti-discrimination law is relevant, and what it "compels" on its face is behavior, not speech -- and moreover behavior that is not always and necessarily expressive, and may often or usu not be expressive at all.
By contrast, in Barnette there was *no question* that what the govt was compelling was speech and there was no issue of public accommodations or status discrimination involved. If Barnette controlled and disposed of this case, then this case would never have reached SCOTUS in 2022 in the first place. The lawyers are referring to many cases in the oral arguments, but one case they will not be referring to is Barnette.
LFC,
ReplyDeleteSorry, I disagree with you once more. If a statute of general application precludes conduct of a particular kind – here, refusing to do business with residents of Colorado based on their race, religion, gender, or sexual orientation – then to the extent it impacts speech in a particular context, then it implicates the freedom of speech under the 1st Amendment. In this case, application of the Colorado anti-discrimination statute implicates the free speech rights of the graphic designer, and is compelling her to create a message she disagrees with. In this respect, the Barnette decision directly applies, notwithstanding that the W. Virginia law had nothing to do with discrimination. Had I been representing Ms. Smith, I would definitely have cited the Barnette decision. While Barnette was decided as a freedom of religion case, it also has freedom of speech implications. The fact that her attorneys did not see fit to cite it, does not mean that it is not relevant to the case. Likewise, the Wooley v. Maynard decision is on point.
I have read Amy Howe’s column. The State of Colorado is arguing that the statute regulates only conduct, not speech, and is therefore constitutional. I believe this is a weak and fatuous argument. In this particular context it does regulate speech, regardless that in other contexts it regulates only conduct. All of the cases which Colorado relies on, e.g., the prohibition against refusing to serve Blacks at a restaurant, or a hotel, etc., only involve conduct, not speech. Suppose a restaurant in Mississippi serves African-Americans on an equal basis with Caucasians, but insists on posting the Confederate flag in the restaurant, or has a sign that states “We support states’ rights and believe that slavery was not wrong.” As long as they served African-Americans on an equal basis with Caucasians, in contexts that did not implicate freedom of speech, the restaurant would not be violating Title II. Alternatively, the State of Mississippi could not require the restaurant to post a sign stating, “Slavery was wrong.” The State of Colorado has the right to require Ms. Smith to provide services to gays, as long as the service does not involve speech. And I maintain that the Barnette and Wooley decisions are directly on point.
I can't claim to have a considered view of how this case should come out.
ReplyDeleteAll I'm saying is that this is a less clear-cut case than the state compelling schoolchildren to recite the Pledge of Allegiance.
If you disagree with that statement, then yes, I guess we disagree.
Marc,
ReplyDeleteI have no knowledge of U.S. Constitutional Law and still less interest, but something you say above intrigues me.
You say that you have a friend who is an evangelical Christian and anti-gay marriage.
I'm curious what you mean by a "friend". I'm not condemning your concept of friendship or criticizing it, just curious.
My friends broadly share the same values as I have. None of my friends are homophobic and if one were to make a homophobic comment or say anything derogatory of gay people, I'd keep a distance from them in the future.
It's not even a moral thing. I just don't feel comfortable around people who are anti-gay.
I know people who are anti-gay, for example, a neighbor who is an evangelical Christian and always wants to talk to me. I nod my head, I smile, I say "ok", but I would not consider him to be a friend. It's not even someone I consider it to be worth arguing with.
A friend is someone I feel comfortable with, with whom I can "be myself" and I'm queer enough (although not gay) that I don't feel comfortable around those who are anti-gay.
There are gray areas between speech and conduct, just as there are gray areas in other realms of constitutional law. There are gray areas when it comes to weighing competing interests. If everything were black and white, there would be no such thing as hard cases and every decision would be 9 to 0.
ReplyDeleteYou went to a v. good law school and have had a long and successful career as a lawyer, so you presumably know that law is not like the natural sciences, where often the gray areas only appear when you get to advanced and abstruse topics. Notwithstanding the existence of so-called black letter law or hornbook law, the gray areas in law show up on the very first day of law school.
Practicing lawyers have to give their clients zealous advocacy, which often means portraying things as clear cut in order to convince a judge or jury. But when the advocate has a more reflective moment, he/she/they presumably realizes that things are often not that way.
s. wallestein,
ReplyDeleteWell, friendships can develop and evolve in an infinite number of ways. This individual married a friend of my wife’s, who both grew up together and attended college together. They are members of a pot-luck group which meets several times a year to have dinner together. We have vacationed on week-ends together. I have known him as a professional photographer during this now 32-year period. During this time period, I have never heard him make a homophobic statement. Our friendship is based on times that we have spent together, not necessarily on our political or religious views. He is a very creative photographer, and artist in general, and I enjoy discussing photography and art with him, subjects about which he is very knowledgeable.
Michigan has a similar anti-discrimination law as Colorado. Before the Obergefell decision, he asked me if he would be violating the Michigan anti-discrimination law if he refused to provide photography services for a gay wedding. I told him that I believe he would be in violation. I contrasted that with a baker refusing to bake a wedding cake with a pro-gay marriage on it, which, I said, I believe would violate the baker’s freedom of speech if he were prosecuted under the Michigan law. Moreover, I believe a person can be opposed to gay marriage, believing that marriage is defined as being between a biological man and a biological woman, without being homophobic.
Along these lines, I used to wonder how Justices Scalia and Ginsburg could be friends, given their legal and political differences. But they were. They both enjoyed opera, and attended opera performances together. Friendship does not require mutual uniformity of views on subjects.
Your own comment confuses me – “I am queer enough (although not gay).” Since being gay does not necessarily involve being committed in a gay marriage, I do not understand this statement, which you need not explain if it is too personal.
Marc,
ReplyDeleteNo problem.
I reclaim the word "queer" from the gay community and use it to mean "non-conventional", "not normal", "eccentric", "weird" etc., as in the title of the play "The Quare Fellow".
Even my heterosexual relationships are a bit weird and not normal.
I don't feel particularly comfortable around people whose lives are too normal. I was always weird, even as a child and felt terrible about that. With time I've become proud of being weird (or queer).
It is too late to "reclaim the word 'queer'" from the gay community... the same with the word "gay."
ReplyDeleteThose semantic ships have sailed.
David Zimmerman,
ReplyDeleteI use it. Some understand me, others don't.
I first started to use it after a friend, a high school teacher, commented that he took special care to reach the "queer students" and explained that he did not mean the gay ones, but those who did not fit in anywhere.
Maybe those of us who use it to mean "weird" form a community of sorts, of which you probably would not want to be a member.
As for "gay", I notice that they still title Nietzsche's work, "The Gay Science" and Nietzsche readers understand him.
Moreover, I believe a person can be opposed to gay marriage, believing that marriage is defined as being between a biological man and a biological woman, without being homophobic.
ReplyDeleteNot sure I agree with this, Marc. Would you mind explaining?
I have family members who take the position that same-sex couples are entitled to civil unions, or to something legally equivalent to marriage - as long as it isn't referred to by the term "marriage."
Now, I get wanting to cut people slack - and wanting plenty of slack oneself - because bigotry (or whatever near-synonym is most appropriate) is a large spectrum of attitudes ranging from egregious KKK/Westboro Baptist-type stuff, down to the more subtle, residual bad habits of thought and language that one hasn't gotten around to noticing and correcting (despite whatever good intentions). So, I think it's counterproductive to treat all cases equivalently.
But still, I don't think I'd deny that their position qualifies as homophobic. It comes from a place that's okay with excluding same-sex couples from a certain status or form of treatment that heterosexual couples take for granted. It doesn't represent the utmost extreme of anti-LGBT attitudes and ideology, since it does apparently try to make a thoughtful concession to same-sex couples by allowing for something "otherwise equivalent" to marriage. But I fail to see the point of purposefully refusing to use the word "marriage," unless it's to endorse the notion that heterosexual marriages are somehow "better" (more "desirable," more "normal," more favorable to God) - which seems homophobic indeed.
When the Masterpiece case was current some folks made a big deal out of the "custom" part of producing a wedding cake. I checked out several high end bakeries in L.A., S.F., and NYC and reviewed their galleries (at least a few hundred cakes). "Custom" seemed to boil down to flavors, colors, and flourishes while none of the cakes had any script.
ReplyDeleteGorsuch's historical "analysis" on wedding cakes and messages is ridiculous.
In the case of a web page or invitations perhaps the items produced are, save for the mere names of the parties, likewise gender or orientation neutral. Having to type in names in what is otherwise likely boilerplate seems trivial. Of course if Dana X and Madison Y are getting married how would we know if we are dealing with a same sex marriage or not?
Custom webpages, like custom cakes, can carry messages but in the case of those items produced for marriages that is likely not the case.
Michael,
ReplyDeleteI strongly disagree with you. The word “homophobic” means having a strong antipathy against individuals who engage in homosexual conduct, to the point of wishing them hostility, and sometime acting on the sentiments of hostility. There are/were many people who were/are opposed to gay marriage who are not at all homophobic, who in fact believe (if they are Christian), that it is un-Christian to be homophobic. They do not wish homosexuals any ill will. They just believed/believe that the state of marriage is a combined religious/legal status that members of the same biological gender cannot legitimately be provided by the State. When I was growing up in the 1950s. the idea that two people of the same gender could be married was unheard of, was semantically impossible. This was not a discriminatory belief. It was a semantic/religious belief. It was, in fact, the punchline in a major movie comedy, Some Like It Hot. The Obergefell decision changed the legal status of marriage, and in so doing also changed the meaning of the word “marriage.” My friend who is opposed to gay marriage as an Evangelical Christian is not in the least homophobic, but he resents being forced by the law from not being allowed to refuse to perform his photographic services at a gay marriage, which he sees as condoning gay marriage, which he does not. That does not equate to his having any sentiments of ostracizing gay people, or harming them.
aaall,
ReplyDeleteI also disagree with you. And I guess I should make it clear, just in case it is not clear, I am neither homophobic nor do I oppose gay marriage. Nonetheless, if Ms. Smith is requested by a gay couple to prepare an announcement for their wedding, it does not matter that readers of the announcement who may not know the genders of the couple could not determine from the announcement that the couple is gay. Ms. Smith knows, and from her perspective, her preparing a wedding announcement for a couple whom she knows is gay would be forcing her to make a statement with which she disagrees on religious grounds. I believe she has that right to refuse. Moreover, as you point out, it is not as if there is a scarcity of wedding announcement artists, or wedding cake bakers, that the gay couple could not find someone who would provide that service, regardless of the fact that they are gay. Some people who are forced to provide this service feel that the gay couple is targeting them to make a point, and they feel exploited, and frankly, I can empathize with them.
Post-script:
ReplyDeleteI have been trying to think of an analogy which would make the same point from a liberal perspective. This is the best I can come up with at the moment. Suppose a person is an ironsmith expert and makes blunderbusses as part of his business, for people who like antique firing arms. A fellow comes to him with a semi-automatic rifle and asks him to convert it to an automatic rifle, which can be done, and which the ironsmith would know how to do. He refuses, because he does not believe that automatic weapons should be available to the public, regardless that the Second Amendment, as currently interpreted, allows for it. Should the person who is requesting the service be able to sue the ironsmith on the basis that the Second Amendment, as currently interpreted, allows him to own an automatic weapon and therefore the ironsmith has no right to deny him the right to exercise his Second Amendment privilege, when in fact there are a lot of other gunsmiths who would be willing to oblige him his request? Of course not. So why is Ms. Smith’s objection any different? Because the gay couple does not “choose” to be gay, whereas the owner of the semi-automatic weapon can choose not to own the weapon, or choose not to want it converted into an automatic weapon? But the gay couple is choosing to demand that this particular wedding announcement artist prepare their wedding announcement, when there are many others who could, and would, oblige their request.
Did Trump take some backroom deal to self-destruct by entertaining West and Fuentes in public, in order to ensure Desantis can be the next nominee? Or are he and his people really that stupid.
ReplyDeleteMarc,
ReplyDeleteBecause gay people have been marginized, excluded, pushed around, bullied (in my high school at least), mocked, laughed at, etc., and it seems to me that any decent person should be aware of that and make an effort not to add to their sense of being treated like shit by refusing to take pictures of a gay wedding.
s. wallerstien,
ReplyDeleteYou may not like it, but wedding announcement preparers, and wedding cake bakers, and photographers have rights too. And, in any case, I do not agree that photographers have the right to refuse the request to photograph a gay marriage.
My fervor regarding this issue is derived to a large extent from my own personal experience with a group of protesters who have been picketing in front of a synagogue in Ann Arbor every Saturday morning for now 18 years, since 2003, using signs condemning Israel’s treatment of the Palestinians – a message they are free to express under the 1st Amendment. However, among these signs they have been including such signs as “Resist Jewish Power”; “Jewish Power Corrupts”; and “No More Holocaust Movies.” I sued the protesters on behalf of two members of the synagogue, one of whom was a Holocaust survivor, in an effort to obtain an injunction placing reasonable time, place and manner restrictions on their conduct, e.g., requiring that they be a certain distance from the synagogue’s property line, a typical restriction used in the abortion clinic cases; limited to the hours before and after the Sabbath service began; and limiting the number of signs they could use, which currently number over 20. I argued that the protesters had every right to use their anti-Semitic and anti-Israel signs any else in Ann Arbor they wanted, but not in front of the synagogue every Saturday morning, any more that protesters would have a 1st Amendment right to engage in such conduct in front of a mosque or Protestant or Catholic church. They were engaging in targeted speech, essentially forcing the members of the synagogue to see the signs which insulted the ethnicity and religion every Saturday morning. No one should have the right to force someone who does not agree with your message – whether the message be about gay marriage or an international dispute you take issue with – to utter your message or see your message against their will. I lost. The Sixth Circuit Court of Appeals held that their use of the signs was protected by the First Amendment, including the anti-Semitic signs. After the Sixth Circuit dismissed the lawsuit, the protester added a new sign – “Israel Attacked The U.S. – 9/11/2000.” They are continuing to picket in front of the synagogue every Saturday morning.
P.S.: My petition for a writ of certiorari in the Supreme Court was denied. The same term that the Court held that the firing of a high school football coach who insisted on conducting a public prayer in the middle of the high school football field after every football game violated his 1st Amendment right to freedom of religion.
Marc, I think you're restricting "homophobia" to its more extreme instances. But if it's just a verbal difference, I can leave it be. I'd just want to ask: In place of "homophobic," what descriptor(s) would you prefer for the position that rejects the following views? -
ReplyDelete(1) Although it may be amply precedented to restrict the application of "marriage" to heterosexual relationships, the precedent is/was objectionable (e.g. because deferring to it reinforces harmful anti-LGBT stigmas), and so we should move beyond it and embrace an LGBT-inclusive usage of the word.
(2) If a religion teaches that God especially disfavors LGBT people, then to that extent, the religion does not deserve to be regarded with respect, let alone uncritical deference.
(3) If defenders of the religion object that God disfavors marriage and/or sexual activity on the part of LGBT people - as distinct from disfavoring LGBT people themselves ("Hate the sin, not the sinner," etc.) - then their defense is spurious.
Elaborating on (3): It is spurious - or, it tends to be, when you do a bit of prying - because people who make these statement show little if any inclination to ask, "Why does God disfavor those acts?" They tend not to acknowledge that God's opposition to those acts seems arbitrary or plainly harmful by the lights of common-sense morality; they simply overlook this tension, while affording the opposite treatment to many, many other divine commands that seem bizarre to common sense.
(For example, there's a Catholic school near where I live that received a good deal of heat for firing a teacher when it was discovered that she had a wife. Does anyone believe that the school would've treated, say, divorce, or birth-control usage, as similarly fireable offenses? What's so exceptional about same-sex marriage?
Similarly, if a defender of an anti-LGBT religion wants to argue that God prohibits sex and marriage except on the condition that it can produce children, then it'd seem incongruous if the defender didn't have (or, didn't find it odd that God lacked) reservations of the same sort for infertile heterosexual couples.)
Sorry I wrote so much here... The basic point is: If someone says, "Just don't call it 'marriage,'" then do a bit of prying, and most likely, IMO, you'll find something at the root that qualifies as homophobia - or whatever related terminology you'd prefer to substitute, should you insist that "homophobia" just means strong antipathy, hostility, ill-wishing, and the like. (What would your preferred terminology be?)
Now of course, what we're describing is not the same as the Westboro Baptist antics etc., but your objection to calling it "homophobia," IMO, would seem analogous to saying that what's sometimes called "soft racism" is best considered something different from racism.
Another offense against gay people besides what Michael outlines above about religion is that for many years they were considered to be mentally ill and treated as such by psychiatrists and by the general public.
ReplyDeleteOne more reason for any decent person to be on their side and not on the side of those who
pick on them.
Warren,
ReplyDeleteNo, the stenographer could not refuse to transcribe your pro-same sex marriage statement because you have formed a contract with her – either verbal or written – that she will transcribe everything you state, regardless what the statement is. Once s/he entered into that contract with you, she could not refuse to transcribe what you said without breaching the contract. If, however, before s/he entered into that contract with you s/he told you, “I refuse to transcribe any statement which constitutes an endorsement of same sex marriage,” and you agreed, then she would have the right to refuse. However, let’s say before you entered into the contract you told her, “I expect that I will be making a statement endorsing same sex marriage,” and she told you, “OK, then, get yourself another stenographer,” you could not force her to be your stenographer against her will. Now, suppose rather than being a professor at Harvard University, a private university which cannot force anyone to be a stenographer against her will, you were the Governor of Massachusetts and told the stenographer, who is an employee of the State of Massachusetts, “As Governor of Massachusetts I have the right to enforce the Massachusetts anti-discrimination statute and you, as an employee of the State of Massachusetts, have the obligation to transcribe my pro-gay marriage message, and if you refuse, you will be fired.” This is the situation Ms. Smith is in, but she is not an employee of the State of Colorado. The State of Colorado is telling her that under the State’s anti-discrimination law she cannot refuse to do business with a gay couple who wishes to enter into a contract with her which will entail requiring her to use her graphic skills to create a wedding announcement transcribing their pro-gay marriage message. Ms. Smith, who has not yet entered into the contract, unlike your stenographer, says, “Under the Free Speech and Freedom of Religion Clauses of the U.S. Constitution the State of Colorado cannot require that I enter into a contract which is going to require me to transcribe a pro-gay marriage message with which I disagree.” I agree that Ms. Smith has the right under the U.S. Constitution to refuse to enter into such a contract, just as your stenographer would have the right to enter into a contract with you unless you agreed that she would not have to transcribe any pro-gay marriage statement you might make. Clear as mud?
Regarding my bastardization of the use/mention distinction, I acknowledge that I was stretching it, but I was trying to make the point that Ms. Smith’s creating the pro-gay marriage wedding announcement is more like mentioning the words, rather than using them, since she does not believe in same sex marriage, and that since she is not using the words, her refusal to do so is arguably indefensible, as the Supreme Court held in the “Live Free Or Die” license plate case, which as J.’s Rehnquist and Blackmun pointed out, does not equate to the driver’s affirming the message.
Michael,
ReplyDeleteNone of what you have written is relevant to the issue, because, contrary to your preference, the First Amendment has a Freedom of Religion clause which requires that the federal government respect the religious rights of those people who favor the religious views which you despise, and, since that right is also incorporated into the 14th Amendment and thereby applicable to the States, it also requires that each State respect those same religious views which you despise. Moreover, you are generalizing about the views of such religious people. The fact that they are opposed to same-sex marriage based on the Bible, and also believe that sexual relations between individuals of the same gender is a sin, does not mean that they support mistreatment of homosexuals, or ostracizing them, although, of course, many of them do. But all this is beside the point regarding whether, in light of the Obergefell decision the State of Colorado can compel Ms. Smith to enter into a contract with a gay couple which will require her to transcribe a message in favor of a pro-gay marriage, when she is opposed to gay marriage. I agree with her that a requirement that she not discriminate against anyone based on their sexual orientation does not at the same time require that she relinquish her rights under the First Amendment.
s. wallerstein,
Ms. Smith, and those who own comparable businesses which involve the expression of speech, is not “picking on” anyone. She has not gone out of her way to criticize, mock, denigrate, slander, etc., homosexuals. She is just asserting her right not to enter into a contract with them which will require to express a message she disagrees with. I have that same right, if I so chose. Warren Goldfarb has that right is he so chose. Michael, has that same right if he so chose. And, if Chile has a constitutional free speech right, then you have the same right if you so choose. Of course, they may each, if they so choose, not exercise that right the way that Ms. Smith wishes to exercise her right. By exercising that right, she is not picking on anyone.
Correction:
ReplyDeleteThe Supreme Court held in the Live Free Or Die case that the refusal to use the license plate on his vehicle was defensible. J.'s Rehnquist and Blackmun held that it was, since vehicle owner was not "using" the message on the license plate.
Marc,
ReplyDeleteIt's, as Professor Wolff, would say a "which side are you on?" question.
I don't give a shit what the U.S. Constitution has to say.
Marc,
ReplyDeleteCan't comment at length but I think you should listen to the oral arguments, available on SCOTUS's website. I think they will lead you to the view that this case is, from a doctrinal standpoint, a lot less open-and-shut than you are suggesting.
One relevant question is: Is a website designer more like a stenographer (whose transcription does not in fact constitute speech on the stenographer's part) or more like a creative artist whose every utterance and act will be seen as an expression of the artist's views? What if, as Justice Kagan asked, the gay couple just wants a standard website telling people where the hotel is etc, with no artistic flourishes or special features and no statements specifically about same-sex marriage?
ReplyDeleteThese are not easy questions, which is why this is not an easy case, despite your efforts to depict it as one.
P.s. to Marc -
ReplyDeleteYou did not answer Warren's initial question. He asked whether the stenographer's transcription of his lecture was speech (by the stenographer). You never answered that question.
Warren and LFC,
ReplyDeletePutting aside the contract issue, No, the stenographer’s transcription is not speech, because s/he is just transcribing the words which Warren would be uttering – she is not embellishing the speech with any creativity. But if you saw Ms. Smith on the PBS News Hour tonight, you would have seen her saying that she does not just transcribe what her clients tell her. Each of her wedding announcements are unique and include her own creativity. Requiring her to create such a wedding announcement for a gay marriage would not just be a transcription of the couple’s words, but would include her own embellishment on those words.
And, LFC, Yes, the case is quite simple when viewed through the lens of the creative speech aspect. J. Sotomayor questioned the attorney for Ms. Smith about each of the pages on her website, stating that they appeared to be the words of the client, not Ms. Smith’s. But this question ignored the uniqueness of each of Ms. Smith’s creations, which are not just a transcription of the client’s words. The same is true of the baker who creates his/her unique wedding cake on which are transcribed the words celebrating the couple’s marriage. The wedding cake is more than just a transcription of words. As the baker says to Don Corleone in The Godfather, “Wait to you see the wedding cake which I created for your daughter!” To the baker, the cake is a work of art, and s/he should not be required to create a work of art which conveys a message the baker disagrees with. This is different from the photos taken by a photographer, whose photos are not speech. It is only when one takes one’s eye off the speech aspect of the dispute does it appear complicated. Ms. Smith should not be compelled to convey a pro-gay marriage message on a unique wedding announcement she creates, than an owner of a vehicle in New Hampshire should be required to convey the message, “Live Free Or Die” on his vehicles license plate.
Regarding your hotel reservation message example, LFC, of course Ms. Smith could not refuse to create a message about where guests could make reservations. But such a message would not be a wedding announcement.
s. wallerstein,
You may not give a shit about the U.S. Constitution, or about the protections for freedom of speech and freedom of religion it establishes, but a lot Americans do, including Ms. Smith, and she has every right to invoke them. As did Larry Flynt, when he defended Hustler’s right to publish a cartoon depicting Jerry Falwell having sex with his mother in an outhouse. The Court ruled 8-0 that the cartoon was protected by the First Amendment (Justice Kennedy recused himself, I am not sure why).
Marc,
ReplyDeleteI agree with you that people have a free speech right to say what they want about gay and gay marriage.
However, I see this issue as a political one and one is either on the side of gays, people who have been pushed around, discriminated against, treated as sinful or as mentally ill or not on their side.
When a person refuses to take pictures of a gay wedding or to design a cake for a gay wedding, that person is on the side of those who have bullied, excluded and disqualified gays for ever so long. As people who have been the object of so much stupid shit and bigotry over the ages, gay people are, like Jews or Blacks, sensitive about that kind of stuff, maybe "traumatized" is a better word. Why add insult to injury?
It may be that their religion tells them to do so and they have every right to believe in any religion they want to, but that doesn't excuse them in my book.
I can understand that there's a guy you run into at family dinners who refuses to take pictures of gay weddings and that you treat him in a friendly way just as I do my neighbor who is an evangelical Christian with similar ridiculous views. Why go around trying to convert people who believe in some idiotic religious cult?
Still, why are you so obstinate about telling all of us about the constitutional rights which anti-gay bigots undoubtedly enjoy?
Enough said for tonight. Off to bed. It's 10:15 here.
Marc, I didn't say anything about Obergefell, the First Amendment, etc. I'm not weighing in on any legal controversies - that of course is not my area. I thought I made it clear which parts of your commentary I was responding to - admittedly just a tangential part to begin with. If you're not really interested in discussing it, that's fine.
ReplyDeleteWhere you did acknowledge my concerns, unfortunately it was just with an unhelpful repetition of something you had already asserted. What I have in mind is this statement of yours -
The fact that they are opposed to same-sex marriage based on the Bible, and also believe that sexual relations between individuals of the same gender is a sin, does not mean that they support mistreatment of homosexuals, or ostracizing them, although, of course, many of them do.
I nowhere implied that it did. Instead, I tried to argue (a bit sketchily, but I already struggle with the word count on these things) that their opposition to same-sex marriage, even when it claims to rest on divine/Biblical authority, is not so neatly separable from what's called "homophobia" - but I had previously indicated that my usage of the word "homophobia" was broader than yours. (And you proceeded as if my usage was simply wrong, without comment.)
I use "homophobia" to refer to anti-LGB attitudes as manifested in negative stereotyping, or everyday, subtle slights, or dodgy rationalizations/dressings-up of exclusionary practices ("Just don't call it 'marriage'"), or the most flagrantly toxic, oppressive, violent behaviors - any one or more of these, and it's probably not an exhaustive list. But it seems that your preference is to reserve "homophobia" more strictly for the last of these. If we don't see eye to eye on that, then no worries.
Marc,
ReplyDeleteI missed the opening segments of PBS NewsHour tonight. May try to catch it online. Thank you for the reply. It will be interesting to see how SCOTUS decides this.
s. wallerstein,
ReplyDeleteI am confused by something much more significant than our dispute over Ms. Smith’s right to refuse to prepare wedding announcements for gay marriages. Michigan is in the same time zone as New York. In your last email, you stated that you are going to bed, and that it is 10:15 PM in Chile. I received that post at 8:15 PM, Michigan time. Santiago, Chile is directly south of New York City. How can Santiago, Chile be 2 hours later than New York City and Michigan?
I meant your last comment, not your last emial.
ReplyDeleteLast I checked, New York City is Eastern Standard Time and Michigan is Central Time, or so I thought. But I guess it's been a long time since I had occasion to check and maybe I'm misremembering.
ReplyDeleteLFC,
ReplyDeleteNo, Michigan and New York are both in the Eastern Time Zone, and have been for as long as I have lived in Michigan, since 1969.
https://www.timetemperature.com/tzus/michigan_time_zone.shtml
Maybe s. wallerstein's clock was running fast?
ReplyDeleteTry google
ReplyDeletehttps://dateandtime.info/timedifference.php?id1=4990729&id2=3871336
So, Santiago, Chile, is currently on CLST summer time (Daylight Saving Time).
ReplyDeletehttps://www.timeanddate.com/time/zone/chile/santiago
Being on Daylignt Saving Time, while New York and Michigan are on Standard Time, would only explain Santiago being 1 hr. ahead of New York and Michigan, not 2 hrs.
Moreover, the fact that it is summer in Chile is due to the tilt of the Earth’s axis. It should not affect the difference in time zones.
What am I missing?
s. wallerstein,
ReplyDeleteThe link you cited just tells me that Detroit is 2 hrs. behind Santiago.
It does not tell me how or why.
Marc, here’s another suggestion for your googling:
ReplyDeleteSTFU
Tobias Barrington Wolff has an opinion.
ReplyDeleteUnlike some folks [side eye], he is a professor of law and a widely recognized authority on same-sex marriage.
Marc,
ReplyDeleteThe website designer's lawyer in this case said in oral argument that photography of a wedding is speech and can't be compelled, or seemed to say that. So she disagrees with you on the photography point.
And Marcia Coyle on NewsHour said the Justices were "struggling" with the question of where to draw the lines here. Why would they be "struggling" in a 2 hour oral argument if this case were really as simple as you think?
Marc, times zones are somewhat ideosyncratic. Chile is on the same time as Argentina, Brazil, and Greenland. Peru, Ecuador, etc. are the same as EST.
ReplyDelete"Ms. Smith should not be compelled to convey a pro-gay marriage message on a unique wedding announcement she creates..."
LFC and Justice Kagan have a point. Wedding websites and wedding cakes don't carry a message. A wedding website is an organizing tool designed to make what can be a hectic and stressful time somewhat easier, not an argument for anything. I suppose planners, calligraphers, designers, photographers, and bakers are entitled to their artistic conceits but they are basically journeymen practicing anodyne crafts that don't carry political or ideological messages. Folks getting married want the day to be about them. I doubt they want to be culture warring.
"What's the point of a Wedding Website?"
"You can share key information with your guests, like date and location details and accommodations, as well as allow your guests to RSVP for your wedding through your Wedding Website. You can even collect answers to meal selections or other custom questions you need to know, all easily managed in your WeddingWire account."
https://www.weddingwire.com/wedding-websites.html
"Each of her wedding announcements are unique and include her own creativity."
I give her dealing with one bridezilla and her mother to lose that idealism.
"To the baker, the cake is a work of art, and s/he should not be required to create a work of art which conveys a message the baker disagrees with."
And a haircut or a styling is a work of art to a barber or beautician. Hell, really good horseshoeing is a work of art. A concert is a work of art. Do we want to go down that road?
Gay couples can simply go elsewhere? Wtf?
ReplyDeleteGay couples shouldn't HAVE to go elsewhere for a cake just because an anti-gay bigot doesn't like making cakes for gay people (is this really something that bears repeating?), just as black people shouldn't have to go elsewhere because a racist doesn't like making cakes for black people. There's no difference, in principle, between the former and the latter. Racists have always made religious excuses for their bigotry, too.
It's striking that on a blog like this one can find such rancid anti-gay arguments.
Anonymous,
ReplyDeleteTsk, tsk.
Eric,
I will read Prof. Wolff’s brief and get back to you. Right now I am preparing for an oral argument before the Michigan Court of Appeals at 10:00 A.M.
LFC,
I disagree with Ms. Smith’s attorney regarding photographers, for the same reason I disagree with aaall regarding his examples of hair stylists, blacksmiths, etc., below. None of these professions incorporate speech as a normal part of their product. Wedding invitations necessarily incorporate speech; as do many wedding cakes. And Marcia Coyle’s reference to “struggling” is a bit of her journalistic license. I assure you that their final decision will reflect no such “struggling”; although there will likely be a dissent, whatever the outcome.
aaall,
See my response to LFC, supra.
GJ,
Your vitriol is indicative of your stupidity and lack of analytic skills. The right of Black people to be served at a restaurant, or at a hotel, or at any place of public accommodation, does not involve speech, and does not implicate the proprietor’s rights under the Frist Amendment. J. Sotomayor raised the example of a wedding cake baker who refuses to bake a cake for an interracial couple because s/he believes that interracial marriage is a sin. This example is inapposite, because the institution of state implemented marriage does not implicate race as an integral aspect of marriage. Nor does it implicate marriage between members of different religions. The fact that Obergefell changed the definition of marriage to include members of the same gender did not change the right of members of the clergy to refuse to conduct such marriages. For the same reason, it may not be the basis for compelling individuals who believe that marriage is only between a man and a woman to create a product which incorporates speech which approves of marriage between members of the same gender. The wedding announcement preparer, and the wedding cake baker, have the same right as the minister to refuse to use speech as approving of a form of marriage which they do not agree with.
This comment has been removed by the author.
ReplyDelete"The right of Black people to be served at a restaurant, or at a hotel, or at any place of public accommodation, does not involve speech."
ReplyDeleteLet me stop you right there. It can. E.g., speech is implicated when the racist cakemaker doesn't want to put "congratulations" on a cake intended for an interracial couple. By your logic, the racist is entitled to tell the buyer to go elsewhere.
I second anonymous' suggestion upthread:
Here’s another suggestion for your Googling:
STFU
G.J.,
ReplyDeleteYou are, as I stated above, an idiot. I also stated above that the wedding cake maker may not refuse to make a wedding cake for an inter-racial couple because race is not an inherent aspect of marriage. And no, I will not STFU.
"...because race is not an inherent aspect of marriage."
ReplyDeleteIt is if belief, custom, doctrine, and the law says it is and that was the case when most of us who post here were born.
^^ What aaall said.
ReplyDeleteOh the irony ...
You're not fooling anyone, Susselman. It's the LOGIC of your argument that's flawed, as I and others have tried to point out. Nobody cares if U.S. law currently states that race isn't an inherent aspect of marriage. Construct a counterfactual in which it doesn't and see where that gets you. Or, better, imagine a cakemaker who's convinced that race is an inherent aspect of marriage and refuses to put "congratulations" on a cake intended for an interracial couple. The logic of your argument commits you to affirming that he does nothing wrong by telling the buyer to go elsewhere.
ReplyDeleteEven if it doesn't, though, you’re still a detestable bigot. Gay couples shouldn't have to go elsewhere.
Marc, I would urge you to actually check out a number of website designers and a number of wedding website templates. Putting one together doesn't involve what you seem to believe it does. It's more like a shoe store - look at the rack and ask the clerk if they have that style but in another color and in my size. A bit more involved then walking into the back and looking but not much. No designer with experience and an actual business starts with a blank slate and no one with any sense would want to pay for that for a one-off.
ReplyDeleteI just don't understand why someone would be so horrified by gay marriage that they would refuse to do a website about one (I'm not at all sure what a website about a marriage involves since the couples I know just don't get married these days, but anyway...).
ReplyDeleteI can understand why a male might be sexist because he derives some benefits from having a submissive partner or mother. I can understand why someone might be racist because blacks compete with them in the work force. Ditto with being anti-immigrant.
However, two gay people getting married affects no one's vested interests in the least. Why would someone care about that? And why would someone refuse to do a website for them when they're going to get paid for it?
s. wallerstein,
ReplyDeleteIt's ultimately about controlling other people. Social dominance.
People get an ego boost from feeling they are superior to others and can control how others behave. It also feels good to be part of an in-group (eg, Colo-Colo or Arsenal fans, Born-Agains); and for certain groups, expressing attitudes like these helps people feel more connected to the group. Just think back to the cliques and bullying that are typical in childhood and adolescence.
In terms of the current US court cases, some of these cases are all kind of contrived. If I were planning to have a same-sex marriage and needed a baker and caterer, I absolutely would not want homophobes anywere near my food. And if I needed a website designer, I wouldn't want to spend any money on a homophobic designer, if I could choose from hundreds or thousands of other designers. (For many web applications, your designer can actually be on another continent; you're not limited to the companies in your immediate area.)
I think the conservatives just want to build up a body of smaller, edge cases to provide a later justification for the more sweeping rulings denying LGBT rights.
Marc Susselman: I believe a person can be opposed to gay marriage, believing that marriage is defined as being between a biological man and a biological woman, without being homophobic.
ReplyDelete...
The word “homophobic” means having a strong antipathy against individuals who engage in homosexual conduct, to the point of wishing them hostility, and sometimes acting on the sentiments of hostility.
For someone who casts such a wide net when identifying antisemitism, you seem curiously niggardly in recognizing homophobia.
As Mark noted above (quite well, I might add), you are using a pretty extreme definition for "homophobia." More standard definitions would be:
intolerance of same-sex desires within others or one’s self. This assumes that heterosexuality is superior and reinforces the idea that heterosexuality is somehow better or more 'right' than queerness
https://lsa.umich.edu/content/dam/psychassets/psychdocuments/Diversity/DiversityResources/APGAS%20guide%20to%20supporting-diverse-students.pdf
culturally produced fear of or prejudice against homosexuals [sic] that sometimes manifests itself in legal restrictions or, in extreme cases, bullying or even violence against homosexuals (sometimes called 'gay bashing').... ['homophobia'] refers to an attitudinal disposition ranging from mild dislike to abhorrence of people who are sexually or romantically attracted to individuals of the same sex
https://www.britannica.com/topic/homophobia
Many people today find the term "homosexual" highly stigmatizing and derogatory; so rather than use that term, I would say homophobia involves holding negative feelings toward people who are romantically, emotionally, and/or physically attracted to others of the same gender—or who are perceived to be; or feeling that heterosexual attraction is better or more right than attraction to someone of the same gender.
Marc Susselman: There are/were many people who were/are opposed to gay marriage who are not at all homophobic, who in fact believe (if they are Christian), that it is un-Christian to be homophobic. They do not wish homosexuals any ill will. They just believed/believe that the state of marriage is a combined religious/legal status that members of the same biological gender cannot legitimately be provided by the State.
Sorry, but wanting a legal structure that establishes two different classes of treatment for people, first-class for those in male-female partnerships (legal "marriage") and second-class for others (not legal "marriage")—that IS in effect an example of wishing ill will toward gay people, whether those Christians are willing to acknowledge it or not. The fact that the culture of a religious community holds such sentiments up as moral does not make them less discriminatory. The cultures of many religions are in themselves very homophobic.
Marc Susselman: When I was growing up in the 1950s. the idea that two people of the same gender could be married was unheard of, was semantically impossible. This was not a discriminatory belief.
Uh, yes it was. It was a blatantly discriminatory belief. It was commonplace, and it was discriminatory.
Some prefer to use the term "heterosexist" rather than "homophobic."
ReplyDeleteHeterosexism is "the assumption that all people are or should be heterosexual. Heterosexism excludes the needs, concerns, and life experiences of lesbian, gay, bisexual and queer people while it gives advantages to heterosexual people. It is often a subtle form of oppression, which reinforces realities of silence and erasure."
https://lgbtqia.ucdavis.edu/educated/glossary
Eric,
ReplyDeleteThanks. That makes more sense than "homophobic".
A 2013 article by UC Davis psychologists Gregory Herek and Kevin McLemore is worth a look:
ReplyDelete"Like homophobia, the term sexual prejudice can spark arguments about the rationality of heterosexuals' attitudes.... Contemporary social psychologists, however, have found that value judgments about whether prejudice is rational or irrational, justified or unjustified, are unnecessary and even a hindrance to its scientific study. Consequently, prejudice today is often defined simply as a negative evaluative response (ie, an attitude) to a group or to an individual based on his or her group membership. Whether or not a person can cite reasons for such an attitude is immaterial to its status as a prejudice....
Sexual prejudice also differs from many other types of prejudice in that it remains acceptable in segments of American society. By contrast, although religious, ethnic, and racial prejudices persist, they are widely condemned and their expression is typically discouraged by social norms. Moreover, institutional discrimination based on race, ethnicity, and religion has been outlawed and largely eliminated, at least in its obvious manifestations. By contrast, social norms still support sexual prejudice in many settings, and overt sexal stigma remains embedded in many cultural institutions, including the law....
[O]bjections have been raised to the very notion that heterosexuals' negative reactions to sexual minorities can be appropriately considered a prejudice if they are based on religious beliefs.... [T]he mere fact that intergroup attitudes are grounded in moral beliefs or religion does not exempt them from being considered a prejudice. As Allport (1954) noted, history is filled with examples of prejudces based on prevailing religious beliefs. These include individuals' support for such instances of structural stigma as the institution of slavery, the Holy Inquisition's stance toward Jews and other non-Christians, and the Indian caste system.... Despite the religious support they once enjoyed, they are now recognized as instances of prejudice."
"Sexual Prejudice" Annual Review of Psychology 64:309 (2013)
Eric,
ReplyDeleteAlso interesting. Thanks.
Marc. I was just reading the state's filing and it seems the law doesn't require Smith to create a wedding website for a same sex couple if they wish her to, only that if they create a website for a couple, that template must be then sold to any other couple wishing to purchase it. This seems unproblematic.
ReplyDeleteMoving on, I visited her site and checked out a random three. It seems none of them presently use her services. The closer one looks at this the more ones spidy sense tingles. Interesting piece.
https://slate.com/news-and-politics/2022/12/303-creative-gay-rights-free-speech-supreme-court.html
Correcting my 6:26pm post.
ReplyDeleteI meant to praise Michael, not "Mark."
aaall
ReplyDeleteFor better or worse, whether "one's spidy sense tingles" (whatever that exactly means) is sort of irrelevant bc the SCOTUS is going to issue an opinion -- unless they find the case unripe for decision (Thomas asked Smith's lawyer about that) and that seems unlikely (at least to me).
Thanks, Eric! Appreciated. :)
ReplyDeleteI was trying to figure out where Marc got the idea that I was opposed to the free practice of religion under the First Amendment. Might've been this statement of mine:
If a religion teaches that God especially disfavors LGBT people, then to that extent, the religion does not deserve to be regarded with respect, let alone uncritical deference.
This probably needs some adjustment; the word "respect" may be somewhat out of place. From the standpoint of ethics, I think what it brings to mind is non-interference with people's freedom, or the acknowledgement of another person as a subject with certain inviolable rights. I didn't want to insinuate that anti-LGBT religious people have no such rights, or beg any difficult practical/political questions* as to whether it's appropriate to restrict their freedoms.
I meant to use the word "respect" more loosely and informally - as where "I respect your view" means something like "I consider your view reasonable, unobjectionable, worthy of approval," etc.
*I haven't given a lot of thought to those kinds of questions. I mean, Mill's liberty principle seems all right - "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others" - but I'm not really prepared to call myself a Millian, simply because I don't want to draw any premature conclusions by supposing he said all that's worth saying here. (I pretty much did just that when I read Utilitarianism in my 20s!)
As it turns out, I will be unable to post my analysis of Prof. Tobias Wolff’s amicus brief by tomorrow, because I just found out I have a legal emergency to deal with – I have to prepare jury instructions, list my trial exhibits, and submit a pre-trial report in federal court by Friday. So, I will have to postpone preparing that analysis for now, but I hope to post it sometime next week in this thread, if anyone cares.
ReplyDeleteThat said, I have two observations, neither of which will sit well with my critics. First, those who have criticized my position regarding Ms. Smith’s constitutional right to refuse to be compelled to engage in pro same-sex marriage speech expect tolerance for their sexual preferences, but when it comes to respecting the speech and religious rights of others, you are totally intolerant. Whether you like it or not, you are a bunch of moralistic bullies.
Second, and related to the above, I continue to question on what basis you espouse your firm moral views and convictions that, for example, it is morally wrong, or unfair, or discriminatory, or whatever other word you wish to use, for a person to be opposed to gay marriage. From where do you obtain this moral conviction? I have attempted several times on this blog to have commenters on this blog address this issue, to no avail. You all insist that your moral convictions are correct, but can provide me no basis for your moral conviction other than that you believe them. When I have proposed that there are intrinsically valid moral precepts without proof – like slavery is morally wrong – I have been criticized as claiming I obtain my moral views from God, so you do not believe that there are such valid unprovable moral precepts. You do not believe that moral precepts can be logically deduced. Some, like s. wallerstein, just say it is a matter of choosing which side you are on, and that he makes this choice based on his convictions, which he does not need to defend. Given this amorphous source of your moral convictions, I do wonder on what basis you believe you have the right to express your moral convictions, like Eric, with such vehemence, or like Anonymous and GJ, with such vitriol, calling me a homophobic bigot.
So, go on, proceed to spout your self-righteous, moralistic condemnation of me. You remind me of Dorian Gray’s portrait (ironically the product of a homosexual author) – all moral and principled on the outside, with an ugly, intolerant core at its center.
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ReplyDelete"You all insist that your moral convictions are correct, but can provide me no basis for your moral conviction other than that you believe them. When I have proposed that there are intrinsically valid moral precepts without proof – like slavery is morally wrong..."
ReplyDeleteWtf are you talking about? I agree that there are "intrinsically valid moral precepts without proof," to use your dumb wording, but the person who condemns your anti-gay bigotry is no less wrong if they don't. It beggars belief that this is something you need to be taught.
Marc,
ReplyDeleteWhy should we be tolerant of you if you show such vehement intolerance against us, accusing us of having an "ugly core"?
Eric, who disagrees with you, went to some trouble to investigate what word would best designate people like you, who, without hating gay people, do not recognize their right to fully integrate themselves into society. After, I imagine, some searching, he found the term "heterosexist", which unlike the term "homophobe" does not suggest that the person referred to hates or has a phobia to gay people. I agreed with Eric above.
All of that indicates an effort on the part of Eric, myself, and several others, for example, LFC, aaall, and Michael (not an exhaustive list, excuse me), to understand "where you're coming from" and to do justice to your point of view and even to your personal idiosyncracies.
However, if you attack all of us as if we were a self-righteous lynch mob, you will only succeed in uniting all of us against you.
Fine, GJ, so you believe in moral precepts which are intrinsically valid without proof. On what moral precept do you base your position that a person who believes that marriage is, by definition, only between a biological male and a biological female – a belief which you, obviously reject – and who wants to start a business in which s/he creates custom made wedding announcements/invitations, may not be allowed to refuse to accept as a customer a gay couple which insists as part of their announcement that it state, “We are proud to announce our gay marriage.” S/he is willing to forego this business because requiring that she accept that customer would, from her perspective, require her to create an artistic announcement which states a position which is contrary to her convictions, as wrong and as bigoted you believe that position is. From her perspective, requiring her to incorporate this message in a wedding announcement s/he creates is not the equivalent of Warren Goldfarb’s stenographer, who just mechanically transcribes the words the Prof. Goldfarb utters. S/he is not taking dictation from the gay couple, but is infusing the announcement with her won creativity, creativity which she is unwilling to use to promote a form of marriage she does not agree with, despite the fact that her belief is stupid and bigoted. You want to preclude her from starting that business unless she agrees to accept the business of the gay couple; you want to preclude her from starting her business unless she is willing to be compelled to include in the wedding announcement a statement which is against her convictions, however stupid and bigoted you believe her convictions are.
ReplyDeleteSo, what is the moral precept which you accept without proof upon which you base your position requiring the wedding announcement designer to include in the wedding announcement she creates message celebrating gay marriage? Could your precept be that one should treat others the way one would want to be treated? So, let’s say you wanted to start your own wedding announcement business. (Bear with me, you may not have the skills or inclination to start such a business, but let’s fantasize for the sake of my argument.) Now, of course, you are willing to accept gay couples as your clients. But one day a heterosexual couple comes into your store, or goes on your website, and says they are going to get married in a month and they admire your artwork and want you to prepare their wedding announcements. They want the wedding announcements to state, “Jim and Jill are proud to announce their upcoming heterosexual marriage, and wish to state that marriage should only be between a man and a woman and all gay marriage couples are damned and going to hell.” You refuse to accept their business because their message is against your convictions, and being forced to include this message in something you create would literally make you ill. They say to you, but all you are doing is repeating the words we tell you, what’s the big deal? You still turn down their business. They file a complaint against you with the Colorado Human Rights Commission and you are charged and fined by the State of Colorado for violating the Colorado discrimination law, because you rejected the business of the heterosexual couple based on their gender, a clear violation of the statute. You argue that no, I did not reject their business based on their gender; I rejected their business based on the message they were demanding I include in the announcement, a message which is antithetical to my basic beliefs. The State of Colorado responds, under the Colorado law, refusing to include the statement they want you to include is the equivalent of discriminating against them based on their gender, and if you refuse to take their business and do what they ask, we are going to close your business down as violating the Colorado anti-discrimination law. After all, you should treat others the way you wish to be treated.
(Continued)
Taking a break form my preparing jury instructions, my mind wandered to thinking about the movie Blade Runner, and I foresaw this issue becoming front page news in the next 200 years. Androids have been developed to the point that they are almost human. A person speaking to one of them behind a Chines Wall could not differentiate them from human born humans. But they are not human born – they are artificially created. As will inevitably be the case, a female android and a male human fall in love and want to get married. They live in Colorado. Under Colorado law, marriage may only be between humans, even if they are the same gender. Android/human marriages are prohibited. They sue, the case goes to the Supreme Court, which at this point in time has a 7 Democrat appointed justices and 2 Republican (or whatever conservative party replaces the Republicans – hopefully soon) appointed justices. The Court rules that under the Equal Protection Clause, androids have been developed to the point that they are entitled to the same rights as humans, and therefore Iowa’s law is unconstitutional. The couple then go to a wedding announcement designer in Colorado and request that s/he prepare their announcements, celebrating their human/android marriage. The wedding announcement designer – who herself is gay and married to another biological woman - refuses to provide them her creative services, because she believes marriage is properly only between humans. The human-android couple sue, claiming that the wedding announcement designer’s refusal to prepare their wedding announcements violated the Colorado anti-discrimination law, which has added android discrimination to the scope of its statute. The designer defends, arguing that compelling her to include a message in her uniquely designed wedding announcements violates her rights under the First Amendment that government may not compel a citizen to engage in speech which the citizen disagrees with. The case goes to the Supreme Court, which, remember, has a 7-2 majority in favor of the Democrats. Who wins?
ReplyDeleteCorrection:
ReplyDelete" ... Colorado's law is unconstitutional."
Post-script:
ReplyDeleteIn 2222, there are no androids on the U.S. Supreme Court.
Marc
ReplyDeleteI read the first couple of your comments above.
You don't seem to have a handle on the facts of the case that is actually before the SCOTUS right now.
Based on what came through in oral argument, there is no allegation or stipulation here that anyone has ever asked Ms. Smith to include an explicit pro-gay marriage message in one of her websites.
Ms. Smith's position is that a wedding website for a gay wedding, even without any explicit approving messages, implicitly approves of the wedding -- even if all it does is list the hotel, the registry, the options for travel, and other mundane things like that.
Smith's position boils down to saying that making this kind of website is a creative act comparable to writing War and Peace or Ulysses. It really isn't.
P.s. Your refusal to even acknowledge that there is a debatable legal question here about where to draw the boundaries for speech and artistic expression shows that you are apparently incapable of understanding why this case got to SCOTUS in the first place. For someone like you, who has spent his professional career as a litigator, to be unable to understand that there is such a thing as a debatable legal question is quite astonishing.
ReplyDeleteP.p.s. And for you not to have learned that in your three years at the University of Michigan Law School is even more astonishing. You should have learned that in the very first week of law school.
ReplyDeletePpps. I went to a considerably less prestigious law school than Univ of Michigan and I learned that probably on the first or second day - if I hadn't known it already.
ReplyDeleteLDC,
ReplyDeleteNo, you are mistaken, I do have a handle on the facts of the case and Ms. Smith’s legal position, because I have a copy of her petition for certiorari, which the S. Ct. granted. She wants to post on her website a statement that she can only accept business requests that are consistent with her religious belief that marriage is only between a man and a woman. The CADA would prohibit her from placing this statement on her website and would require her creating a website on which she would accept business from gay couples. This is equivalent to compelling her to engage in certain speech, in violation, she maintains, of her right under the 1st Amendment. Moreover, the fact that she has not accepted any clients yet (a point which Prof. Wolff makes in his amicus brief) is irrelevant. Ever since the S. Ct. decided the case Ex parte Young, 309 U.S. 123 (1908), since a resident of a state is precluded under the 11th Amendment from suing the State itself in federal court, in order to challenge the constitutionality of a state statute before the plaintiff takes the risk of engaging in conduct which could arguably violate the statute, the resident is allowed to sue the officer of the State who would be responsible for enforcing the statute, requesting a ruling that the statute is unconstitutional as applied to the resident. This is precisely what Ms. Smith is doing – she is suing Aubrey Elenis, Director of the Colorado Civil Rights Commission responsible for enforcing the CADA, requesting an injunction against the CADA being enforced against her.
LDC,
ReplyDeletePlease, do not insult me with your pejorative and condescending remarks about what I should have learned in Law School. I have litigated several First Amendment cases and know a hell of a lot more about First Amendment constitutional law, and about law generally, than you do. And I am fully aware of why this case made it to the S. Ct., what the issues are, and why they are significant. I just believe that Ms. Smith has the better of the argument and I fully expect her to prevail. And will have nothing to do with claims by commenters on this blog that the conservative S. Ct. justices are probably homophobic bigots. It has to do with rights of free speech under the First Amendment, rights which my critics on this blog would be willing to squelch.
LFC, of course,
ReplyDeleteThis whole “discussion” is a great example of why most normal people want nothing to do with the legal profession.
ReplyDeleteAnonymous @12:23 pm
ReplyDeletePresumably you would prefer a "discussion" in which everyone agrees with everyone else and there is consequently no disagreement and no debate.
If you can't abide disagreement, then why the f**k are you reading a blog comment thread at all?
"Coup d'etat" in Peru
ReplyDeletehttps://edition.cnn.com/2022/12/07/americas/peru-president-castillo-congress-dissolves-intl/index.html
I at least agree with LFC regarding his above comment.
ReplyDeleteAnd point of clarification. LFC contends that Ms. Smith has no legitimate 1st Amendment interest to claim to be protecting, because she even refuses to just include mundane information regarding lodging accommodations, travel options, etc. This, I assume he contends, is not a requirement that she use a message such as that I posted above, that “We are proud to announce our gay marriage.” But this misses her point. Somewhere the wedding announcement is necessarily going to have to identify the individuals who intend to be married. From her perspective – even if the names do not disclose the genders of the nuptials, e.g., Leslie Smith and Dallas Jones, she will know that they are both of the same gender, and by creating the announcement she will be joining in celebrating a gay marriage, i.e.. she is being compelled to make a statement in a context that is against her convictions.
In the 10th Circuit decision which ruled against Ms. Smith, the Chief Judge of the 10th Circuit, Timothy Tymkovich dissented, stating:
“If liberty means anything at all, it means the right to tell people what they do not want to hear. – George Orwell
“No one denies Lorie Smith's sincere religious beliefs, good faith, and her willingness to serve clients regardless of race, creed, ethnicity, or sexual orientation. But what she will not do is compromise her *1191 beliefs and produce a message at odds with them. The Constitution neither forces Ms. Smith to compromise her beliefs nor condones the government doing so. In fact, this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do. 1191 But the majority takes the remarkable—and novel —stance that the government may force Ms. Smith to produce messages that violate her conscience. In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far. Though I am loathe to reference Orwell, the majority's opinion endorses substantial government interference in matters of speech, religion, and conscience. Indeed, this case represents another chapter in the growing disconnect between the Constitution's endorsement of pluralism of belief on the one hand and anti-discrimination laws’ restrictions of religious-based speech in the marketplace on the other. It seems we have moved from ‘live and let live’ to ‘you can't say that.’ While everyone supports robust and vigorously enforced antidiscrimination laws, those laws need not and should not force a citizen to make a Hobson's choice over matters of conscience. Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.”
I agree with J. Tymkovich. And it seems to me that anyone who believes in individual autonomy and the right of the individual to resist the imposition of authority in the sphere of what one may be allowed to say – like a certain philosopher and many commenters on this blog - would agree with J. Tymkovich as well.
Marc,
ReplyDeleteYou argue here that her creating a website for a gay couple would be compelled speech simply because she knows the couple's identity and creating the website is "joining in" their celebration.
But in your response to RPW's hypothetical in his "Legal Speculation by a Non Lawyer" post, you said it would *not* be compelled speech if the website included on every page a line saying something like "I believe gay marriage is sinful."
I think your two positions are somewhat inconsistent. If simply her knowing the couple's identity makes it compelled speech, then on your view it should still be compelled speech even if she put that "I believe it's sinful" disclaimer on the site.
This is one of the problems with this case. She wants to run a business but she won't do gay wedding websites and apparently she also won't do wedding websites for straight couples if their conduct has in some way violated her religious beliefs. And if she decides that her religious beliefs preclude her from doing websites for, say, interracial couples, it's not clear, as other commenters have already suggested, how one can draw a line there, and so you end up with the position that she can run a business serving only couples who are straight, have never engaged in premarital sex with anyone, and - maybe - also have to be of the same race.
P.s. there's no evidence, as I understand it, that she won't do a site for interracial couples, but it's really not clear, on her view of the case, what would prevent her from deciding that she won't.
ReplyDelete-/"...Ms. Smith’s constitutional right to refuse to be compelled to engage in pro same-sex marriage speech..."
ReplyDeleteMarc, apologies if I missed it but I believe you have yet to show how the use of an already existing and totally anodyne template that deals with names, dates, times, venues, gift registries, etc. rises to the level of compelled speech (she wasn't going to be required to create a new template, just make existing ones available to all comers). Forget the legal arguments for a moment and just count the horse's teeth. Help me (and likely others) out.
s.w., the more I reflect on it, your "which side are you on" comment is way apt. This case is part of our revanchist Right's attempt to recreate, as a start, the glories of Jim Crow and the first Gilded Age.
LFC,
ReplyDeleteNo inconsistency. The explicit denunciation of same-sex marriage in the wedding announcement would negate the compelled message implicit in the creation of the announcement. If Ms. Smith were to refuse to create the wedding announcement despite the couple’s willingness to include an explicit repudiation of it, this would strongly imply that Ms. Smith’s objection was to the fact that the couple is gay, rather than to their getting married.
I don’t know where you got the idea that she won’t do wedding announcements for straight couples who engage in sex practices she may also believe are sinful, for example pre-marital sex. How would she even know that, and even if she did, how would be evidenced in the wedding announcement? Moreover, even if she did refuse to create a wedding announcement for a straight couple who engaged in pre-marital sex, this would not violate the CADA, since it would not constitute discrimination based on gender preference, gender, race, or the couple’s religion.
Regarding inter-racial marriage, she has not expressed any unwillingness to create wedding announcements for interracial couples, so it is not an issue. As for the hypothetical that another wedding announcement designer could refuse to do business with an interracial couple, that would most certainly violate the CADA, and rightly so. One’s race has no legal, logical or semantical correlation with the concept or validity of marriage.
aaall,
Ms. Smith has stated, on the record, that she customizes any template a couple may select by embellishing the announcement with her own artistry. That is the appeal of the service she provides.
Justice Barrett, I think it was, or Gorsuch or both, had a colloquy w Smith's lawyer during the oral argument in which the lawyer said that there are certain heterosexual couples for which Smith will not do websites (based on particular stories they might want to have told that she would find objectionable).
ReplyDeleteP.s. stories having to do w their own behavior or how they met etc. I don't recall the details of the exchange, just the general point.
ReplyDelete